Closing Deliveries. On the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following: (a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B; (b) The OP Agreement and the Articles; (c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants; (d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge; (e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2); (f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E; (g) A copy of the most recent as-built survey of the Property, if any; (h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required; (i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;] (j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”); (k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3; (l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii); (m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects); (n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts; (i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and (p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.
Appears in 3 contracts
Sources: Contribution Agreement, Contribution Agreement (Empire State Realty Trust, Inc.), Contribution Agreement (Empire State Realty Trust, Inc.)
Closing Deliveries. On At or prior to each Closing:
(i) to the Closing Dateextent that PICO’s PICO Membership Interests are certificated, PICO shall deliver to UCP one or more certificates representing the number of PICO Membership Interests specified in the applicable Exchange Request (or an affidavit of loss in lieu thereof in customary form, but without any requirement to post a bond or furnish any other security), accompanied by security transfer powers, in form reasonably satisfactory to the corporate secretary of UCP (the “Secretary ”), duly executed in blank by PICO or PICO’s duly authorized attorney, to be exchanged for Class A Shares based on the Exchange Rate in effect at the applicable Closing;
(ii) PICO shall represent in writing, and at UCP’s reasonable request deliver confirmatory evidence reasonably satisfactory to UCP, that no Liens exist on the PICO Membership Interests delivered pursuant to Sections 2.1(d)(i) (other than transfer restrictions imposed by or under applicable securities laws, the parties LLC Agreement or this Agreement), or that such Liens have been released;
(iii) if PICO delivers to UCP, pursuant to Section 2.1(d)(i), a certificate representing a number of PICO Membership Interests that is greater than the number of PICO Membership Interests specified in the applicable Exchange Request, UCP will deliver (or cause the Company to deliver) to PICO certificates representing the excess PICO Membership Interests; and
(iv) UCP shall make, execute, acknowledge and deliver, deliver or cause to be madedelivered to PICO, executed, acknowledged and delivered, through for credit to the Power of Attorney account or at the Attorney-in-Fact (described address specified by PICO in Article 5 hereof)the Exchange Request, the OP Agreement and other legal documents and items required number of Class A Shares that PICO is entitled to be executed receive for PICO Membership Interests in the Exchange. If no account or delivered address is specified in connection with the Closing (collectively Exchange Request, the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to Class A Shares shall be delivered to PICO at the Closing shall be the following:
(a) The Contribution then-acting registrar and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence transfer agent of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (Class A Shares or, if Contributor there is a disregarded entity within the meaning of Section 1.1445no then-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership acting registrar and the Company in favor transfer agent of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) Class A copy of the most recent as-built survey of the PropertyShares, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as principal executive offices of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableUCP.
Appears in 3 contracts
Sources: Exchange Agreement (UCP, Inc.), Exchange Agreement (UCP, Inc.), Exchange Agreement (UCP, Inc.)
Closing Deliveries. On the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in At the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii)Closing, the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable ACE Selling Parties shall deliver to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;Buyer:
(i) [A bargain and sale deed the certificates, if any, representing the ACE Lo Equity Interests, either duly endorsed for transfer to Buyer or accompanied by appropriate duly executed limited liability interest powers or, if the ACE Lo Equity Interests are not certificated, one or more instruments of assignment in substantially the a form attached as Exhibit F, or in approved by Buyer conveying such form as is customary in the applicable jurisdiction which the Title Company shall require in order ACE Lo Equity Interests to issue the Title PoliciesBuyer;]
(jii) A standard owner’s affidavit executed by Contributor to the extent necessary to enable resignations or evidence of their removal from office of the Title Company to issue to the Operating Partnership or its Subsidiarypersons named on Schedule III(a) as directors, officers and managers, as applicable, of ACE Lo and Brighton Park Maintenance Corp., effective as of the ClosingClosing Date, together with respect any required amendments to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy organizational documents of title insurance (in current form), ACE Lo and Brighton Park Maintenance Corp. and filings with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)Governmental Entities;
(kiii) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance certificates required by the Operating Partnership and the Company (if so requested by ContributorSection 10.2(a) and Contributor (if so requested by the Operating Partnership or the CompanySection 10.2(b) of this Agreement, any related documents and the documents listed in this Section 2.3hereof;
(liv) Any Tenant Estoppels, any Ground Lease Estoppels affidavits executed by ACE Hi and any other tenant estoppel certificates, of its required Affiliates that satisfy the requirements of Section 1445 of the Code; and
(v) owners’ affidavits and indemnities in each case, the forms attached to the extent obtained by preliminary certification and report on title for each parcel of the Contributor in accordance with Section 2.1(b)(viiiACE Real Properties set forth on Exhibit H-1 attached hereto (the “ACE Real Property Preliminary Certifications and Reports”);.
(mb) The Operating Partnership and At the Company on the one hand and Contributor on the other hand Closing, AREH shall provide deliver to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;Buyer:
(i) All documents reasonably required the certificates, if any, representing the AREH Subs Equity Interests, either duly endorsed for transfer to Buyer or accompanied by appropriate duly executed limited liability interest powers or, if the AREH Subs Equity Interests are not certificated, one or more instruments of assignment in a Lender in connection with the assumption or prepayment of an Existing Loan at or prior form approved by Buyer conveying such AREH Subs Equity Interests to Closing and Buyer;
(ii) the Existing Loan Release or resignations of the Existing Loan Indemnity Agreement in substantially the form attached hereto persons named on Schedule III(b) as Exhibit C (unless such Existing Loans are repaid at or prior to Closing)directors, officers and managers, as applicable, in each caseof the Companies effective as of the Closing Date, duly together with any required amendments to the organizational documents of the Companies and filings with Governmental Entities;
(iii) the certificates required by Section 10.2(a) and Section 10.2(b) hereof;
(iv) affidavits executed by AREH and any of its required Affiliates that satisfy the applicable partyrequirements of Section 1445 of the Code; and
(pv) An assignment owner’s affidavits and indemnities in the forms attached to the preliminary certifications and reports on title for each parcel of Excluded Assets from the CompanyAdjacent Real Properties set forth on Exhibit H-2 attached hereto (the “Adjacent Real Property Preliminary Certifications and Reports” and, together with the ACE Real Property Preliminary Certifications and Reports, the Operating Partnership or a Subsidiary“Preliminary Certifications and Reports”).
(c) At the Closing, as applicableBuyer shall deliver:
(i) to ACE Hi, immediately available funds by wire transfer to an account designated by ACE Hi (which account shall be designated in favor of Contributorwriting to Buyer at least two (2) business days prior to the Closing Date) in an amount equal to the ACE Closing Payment;
(ii) to AREH, immediately available funds by wire transfer to achieve an account designated by AREH (which account shall be designated in writing to Buyer at least two (2) business days prior to the distributions contemplated under Closing Date) in an amount equal to the AREH Closing Payment; and
(iii) to each Seller, the certificates required by Section 1.4, if applicable10.3(a) and Section 10.3(b) hereof.
Appears in 3 contracts
Sources: Acquisition Agreement (Pinnacle Entertainment Inc), Acquisition Agreement (American Real Estate Partners L P), Acquisition Agreement (Atlantic Coast Entertainment Holdings Inc)
Closing Deliveries. On the Closing DateAt Closing, the parties Parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through make the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingfollowing deliveries:
(a) The Contribution SolarMax shall make the following deliveries to the JZH Holders:
(i) certificates representing the SolarMax Shares;
(ii) the Pledge Agreement, executed by SolarMax;
(iii) resolutions of its board of directors relating to authorization of this Agreement, and Assumption Agreement in the form attached hereto issuance of the SolarMax Shares, certified by an officer of SolarMax; and
(iv) a good standing certificate from the Secretary of State of the State of Nevada as Exhibit B;to the good standing of SolarMax.
(b) The OP JZH Holders shall deliver the following documents to SolarMax:
(i) share certificates representing the BVI Shares for transfer to SolarMax accompanied by an instrument of transfer conveying all right, title and interest in and to the BVI Shares to SolarMax;
(ii) the Pledge Agreement, executed by the BVI Holders;
(iii) a copy of the register of members of BVI HoldCo dated as of the Closing Date and certified by BVI HoldCo’s registered office provider in the British Virgin Islands, which reflects the transfer of the BVI Shares from the JZH Holders to SolarMax;
(iv) a copy of the register of directors of BVI HoldCo dated as of the Closing Date and certified by BVI HoldCo’s registered office provider in the British Virgin Islands, which reflects the resignation of all previous directors of BVI HoldCo and the composition of the board of directors of BVI HoldCo consisting solely of individuals designated by SolarMax;
(v) instruments signed by each of the record owners (the “Record Owners”) of the Company Interest as of date of this Agreement as set forth on Exhibit A under the heading “Record Owners” pursuant to which they (A) confirm that they are the record owners of the Company Interests set forth on Exhibit A, (B) consent to and approve this Agreement and the Articles;
transactions contemplated by this Agreement; (cC) The Amendment or other evidence confirm that they have irrevocably assigned their ownership in the Company Interests to HK Intermediate HoldCo; (D) agree that they will take all action necessary to obtain regulatory approval of the transfer of OP Units their ownership of the Company Interests to Contributor HK Intermediate HoldCo; (E) confirm that there is no action or proceeding pending or threatened which could impair their ability to complete the transfer to HK Intermediate HoldCo; (F) confirm that, except for their agreement to transfer the Company Interests to HK Intermediate HoldCo, their Company Interests are subject to no Encumbrances; and by Contributor to (G) such other matters as SolarMax or its Participantscounsel may request;
(dvi) Evidence the written legal opinion of the DTC Registered REIT StockPRC counsel for the Company, which shall bear substantially addressed to SolarMax and dated as of the legend Closing Date, in the form set forth in Exhibit B-1;
(vii) the Articles or a written statement legal opinion of information that the Company will furnish a full statement about certain restrictions on transferability BVI counsel for BVI HoldCo, addressed to a stockholder SolarMax and dated as of the Closing Date, in the form set forth in the Articles on request and without chargeExhibit B-2;
(eviii) An affidavit from Contributor (or, if Contributor is a disregarded entity within stock powers executed in blank transferring the meaning of Section 1.1445-2(d)(2)(iii), SolarMax Shares to SolarMax as provided in the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)Pledge Agreement;
(fix) The release executed by Operating Partnership and the Company in favor complete set of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
company stamps (g) A copy of the most recent as-built survey of the Propertyincluding common stamp, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assignstamps for contractual purpose, transferfinancial stamps, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbranceslegal representative stamps) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects business licenses of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyGroup Company; and
(px) An assignment written resolutions of Excluded Assets from the Company, members of BVI HoldCo approving the Operating Partnership or a Subsidiary, as applicable, Transaction and waiving any rights under the BVI Articles for which waiver is required in favor of Contributor, order to achieve consummate the distributions contemplated under Section 1.4, if applicableTransaction.
Appears in 2 contracts
Sources: Share Exchange Agreement (SolarMax Technology, Inc.), Share Exchange Agreement (SolarMax Technology, Inc.)
Closing Deliveries. On At or before the Closing DateClosing, the parties Parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through make the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingfollowing deliveries:
(a) The Contribution Seller shall deliver to Escrow Agent: (i) the Deed, (ii) a B▇▇▇ of Sale in the form attached hereto as Schedule "D" conveying Seller's right, title and Assumption interest in the property thereunder free of any liens or encumbrances, (iii) a counterpart of the Reciprocal Easement Agreement in the form attached hereto as Exhibit Schedule "E", (iv) a recordable termination of any notice or memorandum of lease that may have been executed with respect to the Lease together with any Seller resolutions or certificates as may be required by the Land Court to file the same,; (v) a check or wire for the applicable MA real estate transfer tax (transfer stamps) and other closing costs payable by Seller hereunder, (vi) a release or satisfaction of any mortgage, security interest, or other encumbrance on the Premises securing an obligation of Seller other than matters permitted pursuant to Section 2 hereof, (vii) an affidavit, which includes Seller's taxpayer identification number, certifying as to whether Seller is a foreign entity subject to withholding taxes pursuant to IRC Section 1445, (viii) assignments of any permits, licenses or approvals affecting the Premises or the Project which are in Seller's name and are transferable (ix) such documents and instruments customary in commercial real estate transactions as shall be reasonably required by Buyer or its title company or Escrow Agent to effect the purposes of this Agreement, including without limitation (A) an affidavit enabling Buyer to obtain title insurance on the Premises without the standard exceptions for mechanic's liens and parties in possession (which affidavit may be qualified in light of Buyer's possession of the Premises), and (B;) such good standing certificates, consents, or resolutions as may be required by the title company or the Land Court to record the Deed and the Reciprocal Easement Agreement, and (x) a check or wire covering the Security Deposit.
(b) The OP Agreement and Buyer shall deliver to Escrow Agent: (i) any unpaid Rent which has accrued under the Articles;
Lease through the Closing, (cii) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
Note; (diii) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor Subordinated Mortgage in the form attached hereto as Exhibit E;
Schedule "F", (giv) A copy a counterpart of the most recent as-built survey Reciprocal Easement Agreement, (v) a counterpart recordable termination of the Property, if any;
(h) Any other documents any notice or memorandum of lease that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit may have been executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the PropertyLease together with any Buyer resolutions or certificates as may be required by the Land Court to file the same, either (ivi) an ALTA extended coverage owner’s any customary buyer affidavits or leasehold policy of certificates required by the title insurance (in current form), with such endorsements thereto as insurer insuring the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance Premises for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereofBuyer, as well as such other instruments or documents as are reasonably required to effect the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) purposes of this Agreement, any related documents including without limitation such good standing certificates, consents, or resolutions as may be required by the title company or the Land Court to record the Subordinated Mortgage and the documents listed Reciprocal Easement Agreement, (vii) current evidence of Buyer's formation and good standing in this Section 2.3;the State of Delaware and its qualification to do business in Massachusetts, and (viii) a check or wire for any closing costs payable by Buyer hereunder. Seller's right to payment under the Note shall be pari passu with the rights of any holders of equity or membership interests in Buyer and Buyer shall not grant any rights to distribution which are inconsistent with the foregoing. The Subordinated Mortgage shall be granted by Buyer to Seller subject only to matters of record affecting the Premises at the t▇▇▇ ▇▇▇▇▇▇ conveyed the same to Buyer (excluding mechanic's liens or other encumbrances created by Buyer), and the lien of any Paramount Mortgage or Paramount Lien, each as defined in the Mortgage.
(lc) Any Tenant EstoppelsBuyer and Seller may agree, any Ground Lease Estoppels and any other tenant estoppel certificates, in each caseas part of the settlement instructions to Escrow Agent, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership offset and adjust their respective payment obligations of Rent and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableSecurity Deposit.
Appears in 2 contracts
Sources: Power Plant Operation and Development Lease With Purchase Option (Laidlaw Energy Group, Inc.), Power Plant Operation and Development Lease With Purchase Option (Laidlaw Energy Group, Inc.)
Closing Deliveries. On At the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingClosing:
(a) The Contribution Operating LLC shall deliver to ▇▇. ▇▇▇▇▇ written evidence that the ▇▇▇▇▇ LLC Units have been issued by the Operating LLC to ▇▇. ▇▇▇▇▇ and Assumption Agreement in registered on the form attached hereto as Exhibit Bbooks and records of the Operating LLC, free and clear of any Encumbrances;
(b) The OP Agreement Operating LLC shall deliver to the DGC Trust written evidence that the Trust LLC Units have been issued by the Operating LLC to the DGC Trust and registered on the Articlesbooks and records of the Operating LLC, free and clear of any Encumbrances;
(c) The Amendment or other evidence Parent shall deliver to ▇▇. ▇▇▇▇▇ a stock certificate evidencing the issuance of the transfer ▇▇▇▇▇ Series F Shares by Parent to ▇▇. ▇▇▇▇▇, free and clear of OP Units to Contributor and by Contributor to its Participantsany Encumbrances;
(d) Evidence Parent shall deliver to the DGC Trust a stock certificate evidencing the issuance of the DTC Registered REIT StockTrust Series F Shares by Parent to the DGC Trust, which shall bear substantially the legend set forth in the Articles or a written statement free and clear of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without chargeany Encumbrances;
(e) An affidavit from Contributor ▇▇. ▇▇▇▇▇ shall deliver to the Operating LLC (or, if Contributor is a disregarded entity within at the meaning direction of Section 1.1445-2(d)(2)(iii)the Operating LLC, to IMXI’s stock transfer agent) all stock certificates evidencing the sole owner ▇▇▇▇▇ IMXI Shares, free and clear of Contributor for such purposes) any Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);transfer duly executed in blank and with all required stock transfer tax stamps affixed; and
(f) The release executed by DGC Trust shall deliver to the Operating Partnership and LLC (or, at the Company in favor direction of the employees and Affiliates of Operating LLC, to IMXI’s stock transfer agent) all stock certificates evidencing the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directlyTrust IMXI Shares, free and clear of all Liens (other than the Permitted any Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction duly endorsed in which the Operating Partnership is required to file its partnership documentation blank or the recording of deeds accompanied by stock powers or other Property Interest instruments of transfer documents is required;
(i) [A bargain and sale deed duly executed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, blank and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablestock transfer tax stamps affixed.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Cohen Daniel G), Securities Purchase Agreement (Cohen & Co Inc.)
Closing Deliveries. On the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution Within two Business Days of the Effective Date, Dolphin shall deliver to the Holding Agent, for delivery to the Company at Closing, the following (with the understanding that a document or instrument is duly executed if signed by an authorized representative of the Affiliate of Dolphin that is party to such document or instrument and/or which holds the document or instrument being amended by such document or instrument):
(i) A duly executed counterpart signature page to the Amendment to Common Stock Purchase Warrant (Amended and Assumption Restated) in the form attached hereto as Exhibit A with respect to each of the Amended and Restated Warrants issued to Dolphin under the Dolphin Purchase Agreement;
(ii) A duly executed counterpart signature page to the Amendment to Common Stock Purchase Warrant (Additional Warrants) in the form attached hereto as Exhibit B with respect to each of the Additional Warrants issued to Dolphin under the Dolphin Purchase Agreement;
(iii) A duly executed counterpart signature page to the Amendment to Amended and Restated Investor Rights Agreement in the form attached hereto as Exhibit BC;
(biv) The OP A duly executed counterpart signature page to the Second Amended and Restated Registration Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit ED;
(gv) A copy The original Notes and the certificates representing all of the most recent as-built survey shares of Series A Preferred issued to Dolphin pursuant to the PropertyPurchase Agreement, if any;each executed and notated by the holder thereof as necessary for conversion into Common Stock and cancellation pursuant to the terms of this Agreement; and
(hvi) Any Such other documents that are in the possession of Contributor documents, agreements, assignments, instruments and certificates as may be required by this Agreement or which can as may be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate effect the transactions contemplated hereby, including, without limitationby, and only the terms and conditions of, this Agreement.
(b) Within two Business Days of the Effective Date, each Series A Holder shall deliver to the extent applicableHolding Agent, grant deeds for delivery to the Company at Closing, the following (with the understanding that a document or instrument is duly executed if transferred directly), assignments signed by an authorized representative of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in the Series A Holder party to such document or instrument and/or which holds the Operating Partnership is required to file its partnership documentation document or the recording of deeds instrument being amended by such document or other Property Interest transfer documents is required;instrument):
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit duly executed by Contributor counterpart signature page to the extent necessary Amendment to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either Common Stock Purchase Warrant (iAdditional Warrants) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C B with respect to each of the Additional Warrants (unless as defined in the Dolphin Purchase Agreement) issued to such Existing Loans are repaid at or prior to Closing), as applicable, in each case, Series A Holder under the Dolphin Purchase Agreement;
(ii) A duly executed counterpart signature page to the Amendment to Amended and Restated Investor Rights Agreement in the form attached hereto as Exhibit C;
(iii) A duly executed counterpart signature page to the Second Amended and Restated Registration Agreement in the form attached hereto as Exhibit D;
(iv) The original certificates representing all of the shares of Series A Preferred issued to such Series A Holder pursuant to the Purchase Agreement, each executed and notated by the applicable partyholder thereof as necessary for conversion into Common Stock and cancellation pursuant to the terms of this Agreement; and
(pv) An assignment Such other documents, agreements, assignments, instruments and certificates as may be required by this Agreement or as may be reasonably requested by the Company to effect the transactions contemplated by, and the terms and conditions of, this Agreement.
(c) Within two Business Days of Excluded Assets from the Effective Date, the Company shall deliver to the Holding Agent, for delivery to Dolphin or the Series A Holder party to the relevant document, the following (with the understanding that a document or instrument is duly executed if signed by an authorized representative of the Company):
(i) A duly executed counterpart signature page to the Amendment to Common Stock Purchase Warrant (Amended and Restated) in the form attached hereto as Exhibit A with respect to each of the Amended and Restated Warrants issued to Dolphin under the Dolphin Purchase Agreement;
(ii) A duly executed counterpart signature page to the Amendment to Common Stock Purchase Warrant (Additional Warrants) in the form attached hereto as Exhibit B with respect to each of the Additional Warrants issued to Dolphin or any Series A Holder under the Dolphin Purchase Agreement;
(iii) A duly executed counterpart signature page to the Amendment to Amended and Restated Investor Rights Agreement in the form attached hereto as Exhibit C;
(iv) A duly executed counterpart signature page to the Second Amended and Restated Registration Agreement in the form attached hereto as Exhibit D: and
(v) Such other documents, the Operating Partnership agreements, assignments, instruments and certificates as may be required by this Agreement or as may be reasonably requested by Dolphin or a SubsidiarySeries A Holder effect the transactions contemplated by, as applicableand the terms and conditions of, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablethis Agreement.
Appears in 2 contracts
Sources: Conversion Agreement (Vitalstream Holdings Inc), Conversion Agreement (Vitalstream Holdings Inc)
Closing Deliveries. On (a) Except as otherwise indicated below, at the Closing DateClosing, AstraZeneca shall deliver the following to Horizon:
(i) each of the Ancillary Agreements to which AstraZeneca is a party, other than the Post-Transition Safety Data Exchange Agreement, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Three Party Letter Agreement and the other transactions contemplated Guarantee, validly executed by a duly authorized officer of AstraZeneca;
(ii) a receipt acknowledging receipt of the Purchase Price in satisfaction of Horizon’s obligations pursuant to take place in connection therewith. The Closing Documents and other items Section 2.3.1, validly executed by a duly authorized representative of AstraZeneca; and
(iii) the Purchased Assets; provided, that (A) with respect to be delivered at the Closing tangible Purchased Assets delivery shall be made as set forth in Schedule 2.4.2(a)(iii), and (B) AstraZeneca may retain one copy of the following:Product Records included within the Purchased Assets and the Purchased Contracts (and, for clarity, prior to delivering or making available any files, documents, instruments, papers, books and records containing Product Records to Horizon, AstraZeneca shall be entitled to redact from such files, documents, instruments, papers, books and records any information to the extent that it does not relate to the Product Business; provided, that, upon Horizon’s request, AstraZeneca shall provide Horizon with a general description of any such information redacted by AstraZeneca to the extent that AstraZeneca is permitted to do so;
(aiv) The Contribution and Assumption Agreement in the form attached hereto as Exhibit BPatheon Letter;
(v) the AstraZeneca FDA Intent Letters;
(vi) the AstraZeneca FDA Transfer Letters; and
(vii) the Vimovo Litigation Records Side Letter.
(b) The OP At the Closing, Horizon shall deliver the following to AstraZeneca:
(i) each of the Ancillary Agreements to which Horizon is a party, other than the Post-Transition Safety Data Exchange Agreement and the ArticlesThree Party Letter Agreement, validly executed by a duly authorized officer of Horizon; and
(ii) the Purchase Price in accordance with Section 2.3.1;
(iii) the Horizon FDA Intent Letters;
(iv) the Horizon FDA Transfer Letters; and
(v) the Vimovo Litigation Records Side Letter.
(c) The Amendment Horizon shall conduct a quality and completeness review of the Regulatory Documentation transferred to it pursuant to Section 2.4.2(a)(iii) promptly following such transfer and, as soon as possible, but no later than 60 days after each transfer, shall notify AstraZeneca in writing of any problems or other evidence issues experienced by Horizon regarding the completeness, navigation or readability of such transferred Regulatory Documentation that Horizon reasonably and in good faith believes are related to the transfer of OP Units such Regulatory Documentation (and not, for example, related to Contributor and by Contributor Horizon system capabilities or compatibility). AstraZeneca shall use its commercially reasonable efforts to its Participants;
assist Horizon in remedying any such problems or issues (dif any) Evidence as soon as reasonably practicable following AstraZeneca’s receipt of Horizon’s notice of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablesame.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Horizon Pharma, Inc.), Asset Purchase Agreement (Horizon Pharma, Inc.)
Closing Deliveries. On At the Closing DateClosing, the parties each Party shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, delivered through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof)Fact, the OP Agreement and other legal documents and other items required to be executed or delivered in connection with the Closing (collectively collectively, the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Agreement, which Closing Documents and other items to be delivered at the Closing shall be include, without limitation, the following:
(a) The Contribution and Assumption Agreement for Meruelo Trust, one or more stock certificates registered in the form attached hereto as Exhibit Bname of Meruelo Trust evidencing the issuance of the Merger Consideration;
(b) The OP Agreement an affidavit from Meruelo Trust in the form of Exhibit B, stating, under penalty of perjury, Meruelo Trust’s United States Taxpayer Identification Number and that Meruelo Trust is not a foreign person pursuant to Section 1445(b)(2) of the ArticlesCode and a comparable affidavit satisfying California and any other state withholding requirements;
(c) The Amendment all title insurance policies, leases, lease files, contracts, stock certificates, original promissory notes held by the Meruelo Entities and other indicia of ownership with respect to S Corp that are in the Meruelo Entities’ possession or other evidence that can be obtained through reasonable efforts, and in the case of the transfer Meruelo Trust, in its capacity as a shareholder of OP Units to Contributor and by Contributor to its ParticipantsS Corp;
(d) Evidence a certificate from Meruelo Trust affirming that the representations and warranties made by Meruelo Trust pursuant to this Agreement remain true and correct as of the DTC Registered REIT Stock, which shall bear substantially Closing Date and that all obligations to be performed by each of the legend set forth in Meruelo Entities under this Agreement have been performed by each of each of the Articles Meruelo Entities on or a written statement of information that before the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without chargeClosing Date;
(e) An affidavit from Contributor (orif requested by the Company, if Contributor is a disregarded entity within certified copies of all appropriate organizational documents for each Meruelo Entity, together with certified trust or corporate actions authorizing the meaning execution, delivery and performance by each of Section 1.1445-2(d)(2)(iii)the Meruelo Entities of this Agreement, any related documents and the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)Closing Documents;
(f) The release executed by Operating Partnership and evidence reasonably satisfactory to the Company in favor that the lender of the employees and Affiliates any borrowed money secured by a mortgage or deed of the Supervisor trust disclosed in the form attached hereto Title Reports, other than those lenders whose loans are being repaid before or immediately after the Closing, has consented to the transaction as Exhibit Erequired by any loan document, deed of trust, mortgage or other evidence of indebtedness related to any Property;
(g) A copy an opinion letter from DLA Piper US LLP addressed to the S Corp and to the Company concluding that the Merger qualifies as a reorganization under Section 368 of the most recent as-built survey of the Property, if anyCode;
(h) Any any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directlyParticipating Entity Interests, free and clear of all Liens (other than the Permitted Encumbrances) , and effectuate the transactions contemplated hereby, including, without limitation, and only any documents necessary to enable the extent applicable, grant deeds Title Insurance Company to issue the Title Policies as of the Closing Date; and
(if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and i) all state and local transfer Tax tax returns and any filings with to be made in any applicable governmental jurisdiction in which the Company or the Operating Partnership is required to file its partnership organizational documentation or in which the recording of deeds or other Property Interest transfer documents the Contribution and Assumption Agreement is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.
Appears in 2 contracts
Sources: Merger Agreement (Meruelo Maddux Properties, Inc.), Merger Agreement (Meruelo Maddux Properties, Inc.)
Closing Deliveries. On At or prior to the Closing DateClosing,
(a) Chemtura shall, and shall cause the parties shall makeother Sellers to, execute, acknowledge and deliver, deliver or cause to be madedelivered to Purchaser (and, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof)where applicable, the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”Country-Specific Purchasers) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(ai) The Contribution an executed copy of an assignment and assumption agreement, substantially in the form of Exhibit A, providing for the assumption of Assumed Liabilities by Purchaser (the “Assignment and Assumption Agreement Agreement”);
(ii) executed copies of the International Asset Purchase Agreements;
(iii) executed copies of the International Stock Purchase Agreements;
(iv) such bills of sale, certificates of title and other instruments of transfer and conveyance as are reasonably necessary to transfer (or record with any Governmental Authority the transfer of) the Transferred Assets in accordance herewith;
(v) an executed copy of the Transition Services Agreement;
(vi) an executed copy of each Supply Agreement;
(vii) an executed copy of the IP License Agreement;
(viii) an executed copy of each of the Brazilian Closing Agreements;
(ix) executed assignment and assumption agreements, substantially in the form attached hereto as Exhibit BB (subject to changes in such form as may be required by local Laws or as may be customary in each jurisdiction), with respect to each Transferred Real Property Lease (collectively, the “Real Property Lease Assignments”);
(bx) The OP Agreement certificates representing the Equity Interests in the Transferred Entities, duly endorsed in blank or accompanied with appropriate stock powers and with all stock transfer Tax stamps affixed if stock, or duly executed assignments of such Equity Interests which are not held in the Articlesform of stock, or other documents as may be necessary under applicable Laws to transfer ownership of such Equity Interests to Purchaser or its specified designees;
(cxi) The Amendment or other evidence of a certificate from each relevant Seller, in form and substance reasonably satisfactory to Purchaser, establishing that the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information any Transferred Asset that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity United States real property interest within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes897(c) of non-foreign status satisfying the requirements Code is exempt from withholding under Section 1445 of Treasury Regulations section 1.1445-2(b)(2)the Code;
(fxii) The release executed by Operating Partnership resignations of those officers and directors of any Transferred Entity that Purchaser shall request in writing at least 5 Business Days prior to the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit EClosing;
(gxiii) A copy certificate of good standing (or the most recent as-built survey of the Propertyfunctional equivalent thereof, if any, in the applicable jurisdiction) of each Transferred Entity identified with an asterisk on Schedule B in its applicable jurisdiction of formation dated no earlier than ten Business Days prior to the Closing Date;
(hxiv) Any payoff letters and lien releases with respect to any Closing Indebtedness that constitutes indebtedness for borrowed money (and any other documents that are liens agreed upon in good faith by the parties), in a form reasonably acceptable to the parties; and
(xv) unaudited consolidated statements of income of the Business in a form substantially similar to the “Hyperion P&L” statements contained in the possession of Contributor “Project Platinum” online data room (items 3.2.29.1 and 3.2.29.2) for each month in calendar year 2014 ended 45 days or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only more prior to the extent Closing Date.
(b) Purchaser (and, where applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required Country-Specific Purchasers) shall deliver to file its partnership documentation or Chemtura the recording of deeds or other Property Interest transfer documents is required;following:
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit an executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as copy of each of the Closing, with respect to Assignment and Assumption Agreement; each International Asset Purchase Agreement; each International Stock Purchase Agreement; the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as Transition Services Agreement; the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or Supply Agreements; the IP License Agreement; the Real Property Lease Assignments; and the Brazilian Closing Agreements;
(ii) all such endorsements to other documents and instruments of assumption as shall be reasonably necessary for Purchaser (and, where applicable, the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, dateCountry-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicableSpecific Purchasers) to all real property and improvements comprising assume the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor Assumed Liabilities in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyherewith; and
(piii) An assignment stock certificates or, at Chemtura’s option, evidence of Excluded Assets from the Companyshares in book-entry form, the Operating Partnership or a Subsidiary, as applicable, in favor representing 2,000,000 shares of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablePurchaser Common Stock.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Chemtura CORP), Stock and Asset Purchase Agreement (Platform Specialty Products Corp)
Closing Deliveries. On (a) At the Closing, subject to all the terms and conditions of this Agreement, Seller shall deliver or cause to be delivered to Purchaser:
(1) certificates executed by a proper officer of Seller, dated as of the Closing Date, certifying to the parties shall makefulfillment of all conditions which are the obligation of Seller hereunder;
(2) a certified copy of the resolutions of Seller’s Board of Directors, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through approving the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention execution of this Agreement and the other consummation of the purchase and assumption transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:hereby;
(a3) The Contribution an executed Assignment and Assumption of Deposit Liabilities Agreement in substantially the form set forth in Exhibit 2 hereto;
(4) an executed Assignment and Assumption Agreement in substantially the form attached hereto as set forth in Exhibit B3 hereto;
(b5) The OP Agreement and the Articles;
(c) The Amendment or other evidence an executed ▇▇▇▇ of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT StockSale, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as set forth in Exhibit F4 hereto, or in such form as is customary transferring to Purchaser all of Seller’s interest in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Personal Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)other Transferred Assets;
(k6) The Operating Partnership and an executed Special Warranty Deed, in substantially the Company on form set forth in Exhibit 5 hereto, transferring to Purchaser all of Seller’s interest in the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3Owned Real Property;
(l7) Any Tenant Estoppelssubject to Section 5.12 hereof, any Ground an executed Lease Estoppels Assignment and any other tenant estoppel certificatesAssumption Agreement, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C 6, with respect to each Lease (unless the “Lease Assignments”) and such Existing Loans are repaid at other instruments and documents as the landlords under each Lease may reasonably require as necessary or prior desirable for providing for the assumption by Purchaser of each Lease, each such instrument and document in form and substance reasonably satisfactory to Closingthe parties hereto;
(8) subject to Section 5.12 hereof, an executed Landlord Estoppel Certificate and Consent to Assignment, in substantially the form attached hereto as Exhibit 7 (each a “Landlord Estoppel”), as applicablecertifying certain information regarding the Lease for each of the Kingwood ▇▇. ▇▇▇▇▇▇ and the Eagle Springs Branch;
(9) an executed Assignment, Transfer and Appointment of Successor Custodian for ▇▇▇ Accounts with respect to the transfer of the ▇▇▇ Accounts in substantially the form set forth in Exhibit 8;
(10) the Records;
(11) an executed limited Power of Attorney, in each casesubstantially the form set forth in Exhibit 9;
(12) immediately available funds equal to the Estimated Payment Amount;
(13) the Cash on Hand;
(14) possession of the Leased Real Property and the Owned Real Property in substantially the condition existing on the date hereof, duly reasonable ordinary wear and tear excepted;
(15) an executed certificate of non-foreign status in the form and manner that complies with Section 1445 of the Code (as defined in Section 2.6 hereof) and the Treasury Regulations thereunder;
(16) such other documents and instruments evidencing such actions or providing such assurances, as Purchaser reasonably requests of Seller in order to consummate the transactions contemplated by this Agreement and to fully vest in Purchaser, all rights, title, and interest of Seller in and to the applicable partyTransferred Assets and Assumed Liabilities transferred to the Purchaser hereby;
(17) all collateral security of any nature whatsoever held by Seller as collateral for any of the Transferred Assets;
(18) an executed Seller’s affidavit delivered to the Title Company as required by Section 5.18(c) hereof; and
(p19) An assignment the Payment Amount in accordance with Section 2.2 hereof.
(b) At the Closing, Purchaser shall deliver to Seller:
(1) a certificate executed by a proper officer of Excluded Assets from Purchaser, dated as of the CompanyClosing Date, certifying to the fulfillment of all conditions which are the obligation of Purchaser hereunder;
(2) a certified copy of the resolutions of Purchaser’s Board of Directors, approving the execution of this Agreement and the consummation of the purchase and assumption transactions contemplated hereby;
(3) an executed Assignment and Assumption of Deposit Liabilities Agreement in substantially the form set forth in Exhibit 2 hereto;
(4) an executed Assignment and Assumption Agreement in substantially the form set forth in Exhibit 3 hereto;
(5) an executed ▇▇▇▇ of Sale in substantially the form set forth in Exhibit 4 hereto;
(6) subject to Section 5.12 hereof, executed Lease Assignments and such other instruments and documents as the landlords under each Lease may reasonably require as necessary or desirable for providing for the assumption by Purchaser of each Lease, each such instrument and document in form and substance reasonably satisfactory to the parties hereto;
(7) an executed Assignment, Transfer and Appointment of Successor Custodian for ▇▇▇ Accounts with respect to the transfer of the ▇▇▇ Accounts in substantially the form set forth in Exhibit 8 hereto;
(8) such other documents and instruments evidencing such actions or providing such assurances, as Seller reasonably requests of Purchaser in order to consummate the transactions contemplated by this Agreement; and
(9) if applicable, the Operating Partnership or a Subsidiary, as applicable, Negative Payment Amount in favor of Contributor, to achieve the distributions contemplated under accordance with Section 1.4, if applicable2.2 hereof.
Appears in 2 contracts
Sources: Branch Purchase and Assumption Agreement (Green Bancorp, Inc.), Branch Purchase and Assumption Agreement (Green Bancorp, Inc.)
Closing Deliveries. On At the Closing DateClosing, Ableauctions and/or the parties Ableauctions Shareholders shall make, execute, acknowledge and deliver, have delivered or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items caused to be delivered at to Top Favour and the Closing shall be Top Favour Shareholders the following:
(ai) The Contribution this Agreement duly executed by Ableauctions and Assumption Agreement in the form attached hereto as Exhibit BAbleauctions Shareholders;
(bii) The OP Agreement letter of resignation from Ableauctions’ current sole officer, with his resignation as to all of the offices he currently holds with Ableauctions to be effective upon Closing and the Articlesconfirming that he has no claim against Ableauctions in respect of any outstanding remuneration or fees of whatever nature to be effective upon closing;
(ciii) The Amendment or letter of resignation of Ableauctions’ current directors, with the resignation of such directors to take effect immediately, other evidence than ▇▇▇▇▇ ▇▇▇▇▇, whose resignation shall be effective on the expiration of the transfer 10 calendar day period following the date of OP Units the mailing of the Schedule 14f-1 to Contributor and by Contributor to its Participantsthe shareholders of Ableauctions;
(div) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested resolutions duly adopted by the Company Board of Directors of Ableauctions approving the following events or the Operating Partnership or that are reasonably necessary or desirable to assignactions, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);:
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing a. the execution, delivery and performance of this Agreement;
b. the Acquisition and the terms thereof;
c. adoption of bylaws in the form agreed by the Operating Partnership parties;
d. fixing the number of authorized directors on the board of directors at seven (7);
e. the appointment of Jianhua Lv as Chairman of the board of directors to serve on Ableauctions board of directors, effective on the Closing Date, and the Company appointment of designees of Mr. Lv as additional directors to serve on Ableauctions’ board of directors on the date the resignation of Ableauctions’ current directors except ▇▇▇▇▇ ▇▇▇▇▇ becomes effective; and
f. the appointment of the following persons as officers of Ableauctions, effective on the Closing Date, with the titles set forth opposite his name (if so requested by Contributorthe “Top Favour Officers”): Jianhua Lv Chief Executive Officer, President and Chairman of the Board ▇▇ ▇▇▇ Chief Financial Officer, Treasurer and Secretary
(v) and Contributor a certificate of good standing for Ableauctions from its jurisdiction of incorporation, dated not earlier than five (if so requested 5) days prior to the Closing Date;
(vi) an instruction letter signed by the Operating Partnership or President of Ableauctions addressed to Ableauctions’ transfer agent of record, in a form reasonably acceptable to Top Favour and consistent with the Company) terms of this Agreement, any related documents and instructing the documents listed transfer agent to issue stock certificates representing Ableauctions Shares to be delivered pursuant to this Agreement registered in this Section 2.3the names of the Top Favour Shareholders as set forth in Annex I;
(lvii) Any Tenant Estoppelsa shareholder list of Ableauctions as certified by Ableauctions’ Secretary or transfer agent, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to dated within ten (10) days of the extent obtained by the Contributor in accordance with Section 2.1(b)(viii)Closing Date;
(m) The Operating Partnership and a. a certificate of the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects Secretary of each Ableauctions, dated as of their respective representations and warranties in this Agreement at the Closing Date (except Date, certifying as to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably the incumbency of officers of Ableauctions executing this Agreement and all exhibits and schedules hereto and all other documents, instruments and writings required by pursuant to this Agreement (the “Transaction Documents”), (ii) a Lender copy of the Certificate of Incorporation and By-Laws of Ableauctions, as in effect on and as of the Closing Date, and (iii) a copy of the resolutions of the Board of Directors of Ableauctions authorizing and approving Ableauctions’ execution, delivery and performance of the Transaction Documents, all matters in connection with the assumption Transaction Documents, and the transactions contemplated thereby;
(viii) all corporate records, board minutes and resolutions, tax and financial records, agreements, seals and any other information or prepayment of an Existing Loan at or prior documents reasonably requested by Top Favour’s representatives with respect to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyAbleauctions; and
(pix) An assignment of Excluded Assets from such other documents as Top Favour and/or the Company, Top Favour Shareholders may reasonably request in connection with the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions transactions contemplated under Section 1.4, if applicablehereby.
Appears in 2 contracts
Sources: Share Exchange Agreement (Ableauctions Com Inc), Share Exchange Agreement (Ableauctions Com Inc)
Closing Deliveries. On Administrative Agent shall have received each of the following documents, instruments and agreements, each of which shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and each Bank and each of which shall, unless otherwise indicated, be dated the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(ai) The Contribution and Assumption Agreement a Note payable to the order of each Bank, each in the form attached hereto as Exhibit Bamount of such Bank's Commitment, duly executed by Borrower;
(bii) The OP Agreement Mortgages duly executed and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor delivered by Borrower creating first and prior Liens on all Mineral Interests owned by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebyBorrower, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is requiredApache Properties;
(iiii) [A bargain a Security Agreement duly executed and sale deed delivered by Borrower;
(iv) such financing statements on form UCC-1 (or any other form required by Lender in substantially its reasonable discretion) as Administrative Agent shall require to evidence and perfect the form attached as Exhibit FLiens created by the Mortgages and the Security Agreement referenced in clauses (ii) and (iii) above, or each of which shall be executed and delivered by Borrower and filed of record in such form jurisdictions as is customary in the applicable jurisdiction which the Title Company Administrative Agent shall require in order to issue the Title Policiesits sole discretion;]
(jv) A standard owner’s affidavit Facility Guarantees duly executed and delivered by Contributor to Venus and EXCO;
(vi) the extent necessary to enable Subordination Agreement duly executed and delivered by EXCO and acknowledged by Venus;
(vii) a copy of the Title Company to issue to Articles of Incorporation and all amendments thereto of EXCO and Venus accompanied by a certificate that such copy is true, correct and complete, and dated within ten (10) days of the Operating Partnership Closing Date, issued by the appropriate Governmental Authority of the jurisdiction of incorporation or its Subsidiaryorganization of each of EXCO and Venus, effective and accompanied by a certificate of the Secretary or comparable Authorized Officer of each of EXCO and Venus that such copy is true, correct and complete on the Closing Date;
(viii) a copy of the Bylaws and all amendments thereto of each of EXCO and Venus accompanied by a certificate of the Secretary or comparable Authorized Officer of EXCO and Venus that such copy is true, correct and complete as of the Closingdate hereof;
(ix) a copy of the Certificate of Organization and all amendments thereto of Borrower accompanied by a certificate that such copy is true, correct and complete and dated within ten (10) days of the Closing Date, issued by the appropriate Governmental Authority of the jurisdiction of incorporation or organization of Borrower, and accompanied by a certificate of the Secretary or comparable Authorized Officer of Borrower that such copy is true, correct and complete on the Closing Date;
(x) a copy of the Limited Liability Company Agreement for Borrower together with a certificate from an Authorized Officer of Borrower stating that such copy is a true and correct copy of the Limited Liability Company Agreement for Borrower and that such Limited Liability Company Agreement has not been amended or modified in any respect and is in full force and effect on the Closing Date;
(xi) certain certificates and other documents issued by the appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested relating to the existence of each of EXCO, Venus and Borrower and to the effect that of each of EXCO, Venus and Borrower is in good standing with respect to the Propertypayment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(xii) a certificate of incumbency of all officers of each of EXCO, either Venus and Borrower who will be authorized to execute or attest to any Loan Paper on behalf of EXCO, Venus or Borrower dated the date hereof, executed by the Secretary or comparable Authorized Officer of such Person;
(ixiii) an ALTA extended coverage owner’s copies of resolutions or leasehold policy comparable authorizations approving the Loan Papers and authorizing the transactions contemplated by this Agreement and the other Loan Papers, duly adopted by the Board of title insurance (in current form)Directors of each of EXCO and Venus and the Management Committee of Borrower; accompanied by certificates of the Secretary or comparable Authorized Officer of each of EXCO, with Venus and Borrower that such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) copies are true and correct copies of resolutions duly adopted at a meeting of or (iiif permitted by applicable Law and, if required by such Law, by the Bylaws of EXCO or Venus and the Limited Liability Company Agreement of Borrower) by the unanimous written consent of the Board of Directors of each of EXCO and Venus and the Management Committee of Borrower; and that such endorsements to resolutions constitute all the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement resolutions adopted with respect to all Contributed Properties located such transactions, have not been amended, modified, or revoked in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurancerespect, and levels of reinsurance for the Property are in full force and effect as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)date hereof;
(kxiv) The Operating Partnership an opinion of Hayn▇▇ & ▇oon▇, ▇.L.P., counsel for Borrower, EXCO and Venus, dated the date hereof, favorably opining as to the enforceability of each of the Loan Papers and otherwise in form and substance satisfactory to Administrative Agent and Banks;
(xv) an opinion of Clif▇▇ ▇▇▇▇▇▇▇, ▇▇ecial counsel for Administrative Agent, favorably opining as to the enforceability of the Mortgages in the State of Louisiana and otherwise in form and substance satisfactory to Administrative Agent and Banks;
(xvi) such UCC-11 search reports as Administrative Agent shall require, prepared as of a date not more than twenty (20) days prior to the Closing Date, conducted in such jurisdictions and reflecting such names as Administrative Agent shall request;
(xvii) a certificate signed by an Authorized Officer of Borrower stating that (A) the representations and warranties contained in this Agreement and the Company on the one hand other Loan Papers are true and Contributor on the other hand shall provide to the other a certified copy correct in all material respects, (B) no Default or Event of Default has occurred and is continuing, and (C) all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed conditions set forth in this Section 2.37.1 and Section 7.2 have been satisfied;
(lxviii) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, a Certificate of Ownership Interests signed by an Authorized Officer of Borrower in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii)form of Exhibit I attached hereto;
(mxix) The Operating Partnership a report or reports in form, scope and detail acceptable to Administrative Agent from environmental engineering firms acceptable to Administrative Agent setting forth the Company on results of a current phase I environmental review of the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse EffectMineral Interests, which representations and warranties report(s) shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in not reflect the possession existence of Contributor facts or circumstances which would constitute a material violation of any Applicable Environmental Law or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by are likely to result in a Lender in connection with the assumption material liability to Borrower or prepayment any of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyits Subsidiaries; and
(pxx) An assignment certificates from Borrower's insurance broker setting forth the insurance maintained by Borrower, stating that such insurance is in full force and effect, that all premiums due have been paid and stating that such insurance is adequate and complies with the requirements of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable9.6.
Appears in 2 contracts
Sources: Credit Agreement (Exco Resources Inc), Credit Agreement (Venus Exploration Inc)
Closing Deliveries. On (i) At the Mandatory Issuance Closing Dateor any Mandatory Issuance Subsequent Closing, as the parties case may be, Holdings shall make, execute, acknowledge and deliver, or cause deliver to be made, executed, acknowledged and delivered, through Purchaser (A) certificates evidencing such number of shares of Common Stock (as calculated in accordance with Section 3(b)(ii) above) (the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof"Mandatory Issuance Shares"), pursuant to the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) Mandatory Issuance Notice to which it is a party the Mandatory Issuance Closing or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement such Mandatory Issuance Subsequent Closing relates, in definitive form and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement registered in the name of Purchaser and/or such assigns permitted pursuant to the Note and in such denominations as Purchaser shall reasonably request, (B) proof of the payment prior to such Mandatory Issuance Closing Date of applicable documentary stamp taxes and any other fees or costs imposed on the issuance of the Mandatory Issuance Shares by any Governmental Agency having jurisdiction over such issuance, (C) an executed signature page of the Subscription Agreement, a form of which is attached hereto as Exhibit B;A (the "Subscription Agreement") and (D) an executed signature page of the Note Assignment, a form of which is attached hereto as Exhibit B (the "Note Assignment").
(bii) The OP Agreement At the Mandatory Issuance Closing or any Mandatory Issuance Subsequent Closing, as the case may be, the Company shall deliver to Purchaser (A) an amount in cash equal to the sum of (x) any accrued and unpaid interest (other than accrued and unpaid interest added to the Articles;Invested Principal Amount pursuant Section 2.01 of the Notes) in respect of the Notes assigned pursuant to the Mandatory Issuance Notice delivered to Holdings under Section 3(b)(ii) above, (y) any cash payment in lieu of any fractional share of Common Stock pursuant to Section 3(b)(ii) above, and (z) the Redemption Payment, and (B) a new Note representing the Current Invested Principal Amount, if any.
(ciii) The Amendment At the Mandatory Issuance Closing or other evidence any Mandatory Issuance Subsequent Closing, as the case may be, Purchaser shall deliver to Holdings (A) an executed signature page of the transfer of OP Units to Contributor and by Contributor to its Participants;
Subscription Agreement, (dB) Evidence an executed signature page of the DTC Registered REIT StockNote Assignment, which shall bear substantially (C) such number of Notes owned by Purchaser with an aggregate principal amount equal to the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder Conversion Principal Amount as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (orMandatory Issuance Notice to which the Mandatory Issuance Closing or such Mandatory Issuance Subsequent Closing relates, if Contributor is a disregarded entity within the meaning together with an instrument of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release transfer reasonably satisfactory to Holdings duly executed by Operating Partnership Purchaser, and (D) the Company in favor of Issuance Purchase Price for the employees Mandatory Issuance Shares. Upon such delivery, and Affiliates of subject to Section 3(c) above, Holdings shall receive the Supervisor in relevant Notes and all the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable rights pertaining to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (a holder thereof other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableExchange Rights.
Appears in 2 contracts
Sources: Purchase Agreement (Psi Technologies Holdings Inc), Exchange Agreement (Merrill Lynch & Co Inc)
Closing Deliveries. On (a) Prior to or at the Closing, the Sellers (as applicable) shall deliver or cause to be delivered to Purchaser:
(i) stock certificate(s) representing all of the Subject Ferrous Shares, together with stock transfer powers duly endorsed in blank or other appropriate instruments of transfer and such other approvals or instruments as may be required to enable Purchaser to record the transfer of such shares to Purchaser on the books of such entity or any applicable Governmental Authority;
(ii) stock certificates representing all of the Subject Harbinger Blocker Shares, together with stock transfer powers duly endorsed in blank or other appropriate instruments of transfer and such other approvals or instruments as may be required to enable Purchaser to record the transfer of such shares to Purchaser on the books of such entity or any applicable Governmental Authority;
(iii) stock certificates representing all of the Blue Line Direct ACDL Shares, together with stock transfer powers duly endorsed in blank or other appropriate instruments of transfer and such other approvals or instruments as may be required to enable Purchaser to record the transfer of such shares to Purchaser on the books of such entity or any applicable Governmental Authority;
(iv) stock certificates representing all of the Blue Line Blocker Shares, together with stock transfer powers duly endorsed in blank or other appropriate instruments of transfer and such other approvals or instruments as may be required to enable Purchaser to record the transfer of such shares to Purchaser on the books of such entity or any applicable Governmental Authority;
(v) if applicable, stock certificates representing all of the Subject Class VI ACDL Shares, together with stock transfer powers duly endorsed in blank or other appropriate instruments of transfer and such other approvals or instruments as may be required to enable Purchaser to record the transfer of such shares to Purchaser on the books of such entity or any applicable Governmental Authority;
(vi) a written assignment by each Seller to Purchaser of any rights of such Seller under any and all subscription agreements, stock purchase agreements, stockholders agreements, investor rights agreement, registration rights agreement or similar agreement to the extent the same relate to the Subject Shares sold, assigned, transferred and conveyed to Purchaser pursuant to this Agreement;
(vii) an officer’s certificate, dated as of the Closing Date, duly executed by an authorized officer of each Seller (as to itself), relating to the parties satisfaction of the Closing conditions set forth in Sections 11.2(a), (b) and (d);
(viii) a secretary’s certificate, dated as of the Closing Date, duly executed by an authorized officer of each Seller, certifying: (A) the incumbent officers of such Seller; and (B) resolutions of the board of directors or similar governing body of such Seller approving the Transactions;
(ix) three (3) counterpart signature pages to each Related Agreement not previously executed and delivered, duly executed and delivered by Sellers and/or their Affiliates, to the extent such Person is a party thereto; and
(x) a certificate (or certificates) in form and substance reasonably satisfactory to the Purchaser, in compliance with Treasury Regulations Section 1.1445-2(c)(3) (and including documentation of the filing of any notice required under Treasury Regulations Section 1.897-2(h)(2)), certifying that the purchase of Blue Line Blocker Shares (and the stock of each other U.S. corporation) contemplated by this Agreement is exempt from withholding under Section 1445 of the Code.
(b) Prior to or at the Closing, Purchaser shall make, execute, acknowledge and deliver, deliver or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required delivered to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingSellers:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially share certificate(s) representing the form attached Purchaser Ordinary Shares being issued to each Seller as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as part of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance consideration for the Property transfer to Purchaser of the Subject Shares, as the Operating Partnership may reasonably request (includingmore particularly set forth in Section 2.4, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property registered in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances such Seller (collectively, the “Title PoliciesPurchaser Ordinary Share Consideration”);
(kii) The Operating Partnership and share certificate(s) representing the Company on Class A Preference Shares being issued to each Seller as part of the one hand and Contributor on consideration for the other hand shall provide transfer to Purchaser of the other a certified copy Subject Shares, as more particularly set forth in Section 2.4, registered in the name of all appropriate corporate resolutions or partnership or limited liability company actions authorizing such Seller (collectively, the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii“Purchaser Preference Share Consideration”);
(miii) The Operating Partnership share certificate(s) representing in the aggregate one hundred Class B Preference Shares as part of the consideration for the transfer to Purchaser of the Subject Shares, as more particularly set forth in Section 2.4, registered as follows: 56 shares in the name of Harbinger Master; 30 shares in the name of Harbinger Special Situations; and 14 shares in the Company on name of Blue Line;
(iv) an officer’s certificate, dated as of the one hand and Contributor on the other hand shall provide Closing Date, duly executed by an authorized officer of Purchaser, relating to the other a certification regarding the accuracy in all material respects satisfaction of each of their respective representations and warranties in this Agreement at the Closing Date conditions set forth in Sections 11.1(a), (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true b) and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects(d);
(nv) Any booksa secretary’s certificate, records and Organizational Documents relating to Contributor that are in dated as of the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each caseDate, duly executed by the applicable partySecretary of Purchaser, certifying: (A) the incumbent officers of Purchaser; and (B) resolutions of the board of directors or similar governing body of Purchaser approving the Transactions and the Preference Share Resolutions; and
(pvi) An assignment three (3) counterpart signature pages to each Related Agreement not previously executed and delivered, duly executed by each party thereto other than Sellers or its Affiliates.
(c) At the Closing, Purchaser shall pay or cause to be paid the Transaction Expenses to the Persons entitled thereto at the Closing by wire transfer of Excluded Assets from immediately available funds to an account designated by such Persons prior to the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableClosing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Australia Acquisition Corp)
Closing Deliveries. On At the Closing DateClosing, Ableauctions and/or the parties Ableauctions Shareholders shall make, execute, acknowledge and deliver, have delivered or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items caused to be delivered at to Top Favour and the Closing shall be Top Favour Shareholders the following:
(ai) The Contribution this Agreement duly executed by Ableauctions and Assumption Agreement in the form attached hereto as Exhibit BAbleauctions Shareholders;
(bii) The OP Agreement letter of resignation from Ableauctions’ current sole officer, with his resignation as to all of the offices he currently holds with Ableauctions to be effective upon Closing and the Articlesconfirming that he has no claim against Ableauctions in respect of any outstanding remuneration or fees of whatever nature to be effective upon closing;
(ciii) The Amendment or letter of resignation of Ableauctions’ current directors, with the resignation of such directors to take effect immediately, other evidence than A▇▇▇▇ ▇▇▇▇▇, whose resignation shall be effective on the expiration of the transfer 10 calendar day period following the date of OP Units the mailing of the Schedule 14f-1 to Contributor and by Contributor to its Participantsthe shareholders of Ableauctions;
(div) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested resolutions duly adopted by the Company Board of Directors of Ableauctions approving the following events or the Operating Partnership or that are reasonably necessary or desirable to assignactions, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);:
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing a. the execution, delivery and performance of this Agreement;
b. the Acquisition and the terms thereof;
c. adoption of bylaws in the form agreed by the Operating Partnership parties;
d. fixing the number of authorized directors on the board of directors at seven (7);
e. the appointment of Jianhua Lv as Chairman of the board of directors to serve on Ableauctions board of directors, effective on the Closing Date, and the Company appointment of designees of Mr. Lv as additional directors to serve on Ableauctions’ board of directors on the date the resignation of Ableauctions’ current directors except A▇▇▇▇ ▇▇▇▇▇ becomes effective; and
f. the appointment of the following persons as officers of Ableauctions, effective on the Closing Date, with the titles set forth opposite his name (if so requested by Contributorthe “Top Favour Officers”): Jianhua Lv Chief Executive Officer, President and Chairman of the Board W▇ ▇▇▇ Chief Financial Officer, Treasurer and Secretary
(v) and Contributor a certificate of good standing for Ableauctions from its jurisdiction of incorporation, dated not earlier than five (if so requested 5) days prior to the Closing Date;
(vi) an instruction letter signed by the Operating Partnership or President of Ableauctions addressed to Ableauctions’ transfer agent of record, in a form reasonably acceptable to Top Favour and consistent with the Company) terms of this Agreement, any related documents and instructing the documents listed transfer agent to issue stock certificates representing Ableauctions Shares to be delivered pursuant to this Agreement registered in this Section 2.3the names of the Top Favour Shareholders as set forth in Annex I;
(lvii) Any Tenant Estoppelsa shareholder list of Ableauctions as certified by Ableauctions’ Secretary or transfer agent, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to dated within ten (10) days of the extent obtained by the Contributor in accordance with Section 2.1(b)(viii)Closing Date;
(m) The Operating Partnership and a. a certificate of the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects Secretary of each Ableauctions, dated as of their respective representations and warranties in this Agreement at the Closing Date (except Date, certifying as to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably the incumbency of officers of Ableauctions executing this Agreement and all exhibits and schedules hereto and all other documents, instruments and writings required by pursuant to this Agreement (the “Transaction Documents”), (ii) a Lender copy of the Certificate of Incorporation and By-Laws of Ableauctions, as in effect on and as of the Closing Date, and (iii) a copy of the resolutions of the Board of Directors of Ableauctions authorizing and approving Ableauctions’ execution, delivery and performance of the Transaction Documents, all matters in connection with the assumption Transaction Documents, and the transactions contemplated thereby;
(viii) all corporate records, board minutes and resolutions, tax and financial records, agreements, seals and any other information or prepayment of an Existing Loan at or prior documents reasonably requested by Top Favour’s representatives with respect to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyAbleauctions; and
(pix) An assignment of Excluded Assets from such other documents as Top Favour and/or the Company, Top Favour Shareholders may reasonably request in connection with the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions transactions contemplated under Section 1.4, if applicablehereby.
Appears in 1 contract
Closing Deliveries. On (a) At the Closing DateClosing, Sellers will deliver to Buyers:
(i) the parties shall makeWAP Agreement executed by Bally;
(ii) the Gaming Agreement executed by Bally;
(iii) the Trademark Assignment Agreement executed by Bally and the Partnership;
(iv) any consents required pursuant to Section 7.1(f);
(v) a certificate substantially in the form attached as Exhibit D to this Agreement, executeexecuted by United Gaming and Bally;
(vi) a release of claims against the Partnership, acknowledge in the form attached as Exhibit E, executed by United Gaming and deliverBally;
(vii) copies of all agreements, or cause to be madeinstruments, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement certificates and other legal documents documents, in form and items required substance reasonably satisfactory to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible Buyers, that are necessary to carry out evidence the intention full and complete termination of this all agreements and transactions (including intercompany payables and receivables) between the Partnership, on the one hand, and United Gaming, Bally, or any of their respective Affiliates, on the other hand, other than the Ancillary Agreements;
(viii) copies of all agreements, instruments, certificates and other documents, in form and substance reasonably satisfactory to Buyers, that are necessary to evidence the full and complete termination of the Casino Management Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents thereby (including resignations of those appointed thereunder, if any);
(ix) duly and validly executed copies of all agreements, pay-off letters, instruments, certificates and other items documents, in form and substance reasonably satisfactory to be delivered at Buyers, that are necessary to evidence the Closing shall be full and complete release or termination of all Liens on the following:Partnership Interests and all Liens (other than Permitted Liens) on the assets and properties of the Partnership and the payment of all outstanding Indebtedness of the Partnership on or prior to the Closing;
(ax) The Contribution and Assumption Agreement a certificate from United Gaming, in the form attached hereto as Exhibit B;
(b) The OP Agreement provided in Treasury Regulation section 1.1445-2(b)(2)(iv), issued pursuant to and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stockin compliance with Treasury Regulation section 1.1445-2(b)(2), which shall bear substantially the legend set forth in the Articles or certifying that United Gaming is not a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity foreign person within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations Regulation section 1.1445-2(b)(2);
(fxi) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit ETitle Affidavit;
(gxii) A copy an assignment of the most recent as-built survey of the PropertyUnited Gaming’s Partnership Interests, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit duly and validly executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)United Gaming;
(kxiii) The Operating either (A) an assignment of RCC’s Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the executionInterests, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C G and a termination and release of claims against the Partnership, in substantially the form attached as Exhibit H, each duly and validly executed by RCC, or (unless such Existing Loans are repaid at B) the Requisite Court Order and Related Documents.
(xiv) an amendment to the Partnership Agreement, in form and substance reasonably satisfactory to Buyers regarding the withdrawal of United Gaming and RCC as partners and the admission of Buyers as the sole partners, executed by United Gaming;
(xv) a certificate of change in general partner to be filed with the Office of the Secretary of State of the State of Mississippi, in form and substance reasonably satisfactory to Buyers;
(xvi) a certificate of United Gaming, in its capacity as general partner of the Partnership, in form and substance reasonably satisfactory to Buyers, certifying as of the Closing Date to (A) the certificate of limited partnership of the Partnership and (B) the Partnership Agreement;
(xvii) a Certificate from the Office of the Secretary of State of the State of Mississippi certifying the good standing of the Partnership to do business in Mississippi dated within ten days prior to the Closing Date;
(xviii) a CD-ROM containing electronic copies of all materials made available in the Data Site on or prior to Closing), as applicable, in each case, duly executed by the applicable partyClosing Date; and
(pxix) An assignment the final Survey.
(b) At the Closing, Buyers will deliver, or will cause to be delivered, to United Gaming:
(i) the Closing Payment, by wire transfers of Excluded Assets from immediately available funds to the Companyaccounts identified in writing provided by United Gaming to Buyers at least two Business Days prior to the Closing Date;
(ii) the WAP Agreement executed by the Partnership;
(iii) the Gaming Agreement executed by the Partnership;
(iv) an amendment to the Partnership Agreement, the Operating Partnership or a Subsidiaryin form and substance reasonably satisfactory to Sellers, executed by Isle, UG Buyer and/or RCC Buyer, as applicable;
(v) any consents required pursuant to Section 7.2(f); and
(vi) a certificate substantially in the form attached as Exhibit I to this Agreement, executed by each Buyer.
(c) On or prior to the date hereof, United Gaming will deliver to Buyers an estoppel certificate, in favor of Contributorform and substance reasonably satisfactory to Buyers, and dated within ten days prior to achieve the distributions contemplated date hereof, duly and validly executed by the tenant under Section 1.4, if applicablethe Hotel Lease.
Appears in 1 contract
Closing Deliveries. On Administrative Agent shall have received each of the following documents, instruments and agreements, each of which shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and each Bank and each of which shall, unless otherwise indicated, be dated the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(ai) The Contribution and Assumption Agreement a Note payable to the order of each Bank, each in the form attached hereto as Exhibit Bamount of such Bank's Commitment, duly executed by Borrower;
(bii) The OP Agreement Mortgages duly executed and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor delivered by Borrower creating first and prior Liens on all Mineral Interests owned by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebyBorrower, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is requiredNebraska Properties;
(iiii) [A bargain a Security Agreement duly executed and sale deed delivered by Borrower;
(iv) a Pledge Agreement duly executed by Taurus;
(v) such financing statements on form UCC-1 (or any other form required by Lender in substantially its reasonable discretion) as Administrative Agent shall require to evidence and perfect the form attached Liens created by the Mortgages, Pledge Agreement and the Security Agreement referenced in clauses (ii),(iii) and (iv) above, each of which shall be executed and delivered by Borrower or Taurus (as Exhibit F, or applicable) and filed of record in such form jurisdictions as is customary in the applicable jurisdiction which the Title Company Administrative Agent shall require in order to issue the Title Policiesits sole discretion;]
(jvi) A standard owner’s affidavit Facility Guaranty duly executed and delivered by Contributor to EXCO;
(vii) a copy of the extent necessary to enable Articles of Incorporation and all amendments thereto of EXCO and Taurus accompanied by a certificate that such copy is true, correct and complete, and dated within ten (10) days of the Title Company to issue to Closing Date, issued by the Operating Partnership appropriate Governmental Authority of the jurisdiction of incorporation or its Subsidiaryorganization of each of EXCO and Taurus and accompanied by a certificate of the Secretary or comparable Authorized Officer of EXCO that such copy is true, effective correct and complete on the Closing Date;
(viii) a copy of the Bylaws and all amendments thereto of each of EXCO and Taurus accompanied by a certificate of the Secretary or comparable Authorized Officer of EXCO and Taurus that such copy is true, correct and complete as of the Closingdate hereof;
(ix) a copy of the Certificate of Formation and all amendments thereto of Borrower accompanied by a certificate that such copy is true, correct and complete and dated within ten (10) days of the Closing Date, issued by the appropriate Governmental Authority of the jurisdiction of incorporation or organization of Borrower, and accompanied by a certificate of the Secretary or comparable Authorized Officer of Borrower that such copy is true, correct and complete on the Closing Date;
(x) a copy of the Limited Partnership Agreement for Borrower together with a certificate from an Authorized Officer of Borrower stating that such copy is a true and correct copy of the Limited Partnership Agreement for Borrower and that such Limited Partnership Agreement has not been amended or modified in any respect and is in full force and effect on the Closing Date;
(xi) certain certificates and other documents issued by the appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested relating to the existence of each of EXCO, Taurus and Borrower and to the effect that of each of EXCO, Taurus and Borrower is in good standing with respect to the Propertypayment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(xii) a certificate of incumbency of all officers of each of EXCO, either Taurus and Borrower who will be authorized to execute or attest to any Loan Paper on behalf of EXCO, Taurus or Borrower dated the date hereof, executed by the Secretary or comparable Authorized Officer of such Person;
(ixiii) an ALTA extended coverage owner’s copies of resolutions or leasehold policy comparable authorizations approving the Loan Papers and authorizing the transactions contemplated by this Agreement and the other Loan Papers, duly adopted by the Board of title insurance (in current form)Directors of each of EXCO and Taurus and the Partners of Borrower; accompanied by certificates of the Secretary or comparable Authorized Officer of each of EXCO, with Taurus and Borrower that such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) copies are true and correct copies of resolutions duly adopted at a meeting of or (iiif permitted by applicable Law and, if required by such Law, by the Bylaws of EXCO or Taurus and the Limited Partnership Company Agreement of Borrower) by the unanimous written consent of the Board of Directors of each of EXCO and Taurus and the Partners of Borrower; and that such endorsements to resolutions constitute all the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement resolutions adopted with respect to all Contributed Properties located such transactions, have not been amended, modified, or revoked in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurancerespect, and levels of reinsurance for the Property are in full force and effect as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)date hereof;
(kxiv) The Operating Partnership an opinion of Hayn▇▇ & ▇oon▇, ▇.L.P., counsel for Borrower, EXCO and Taurus, dated the date hereof, favorably opining as to the enforceability of each of the Loan Papers and otherwise in form and substance satisfactory to Administrative Agent and Banks;
(xv) such UCC-11 search reports as Administrative Agent shall require, prepared as of a date not more than twenty (20) days prior to the Closing Date, conducted in such jurisdictions and reflecting such names as Administrative Agent shall request;
(xvi) a certificate signed by an Authorized Officer of Borrower stating that (A) the representations and warranties contained in this Agreement and the Company on the one hand other Loan Papers are true and Contributor on the other hand shall provide to the other a certified copy correct in all material respects, (B) no Default or Event of Default has occurred and is continuing, and (C) all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed conditions set forth in this Section 2.37.1 and Section 7.2 have been satisfied;
(lxvii) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, a Certificate of Ownership Interests signed by an Authorized Officer of Borrower in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii)form of Exhibit H attached hereto;
(mxviii) The Operating Partnership a report or reports in form, scope and detail acceptable to Administrative Agent from environmental engineering firms acceptable to Administrative Agent setting forth the Company on results of a current phase I environmental review of the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse EffectMineral Interests, which representations and warranties report(s) shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in not reflect the possession existence of Contributor facts or circumstances which would constitute a material violation of any Applicable Environmental Law or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by are likely to result in a Lender in connection with the assumption material liability to Borrower or prepayment any of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyits Subsidiaries; and
(pxix) An assignment certificates from Borrower's insurance broker setting forth the insurance maintained by Borrower, stating that such insurance is in full force and effect, that all premiums due have been paid and stating that such insurance is adequate and complies with the requirements of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable9.6.
Appears in 1 contract
Closing Deliveries. On At the Closing Date, the parties shall make, execute, acknowledge and Closing:
(a) Seller will deliver, or cause to be made, executed, acknowledged and delivered, through to Buyer the Power following documents executed by Seller as appropriate:
(i) recordable special warranty deed (which in certain jurisdictions is also known as a bargain and sale deed with lien against grantor's acts) in form and substance acceptable to Buyer so as to convey insurable title to the Owned Real Property (other than .the Special Lease Properties) to Buyer free and clear of Attorney or the Attorney-in-Fact all Encumbrances except Permitted Encumbrances;
(described in Article 5 hereof)ii) assignments, the OP Agreement bills of sale and other legal documents instruments (including certificates of title, as applicable) in form and items required substance acceptable to be executed Buyer sufficient to transfer title to the other Acquired Assets, (other than the Real Property and the Contracts) free and clear of all Encumbrances;
(iii) an assignment and assumption agreement in form and substance acceptable to the Parties with respect to the Contracts;
(iv) Stock certificates, duly endorsed for transfer, for all of Seller's equity interest in CFI free and clear of all Encumbrances except as set forth in CFI's certificate of incorporation, by-laws, and shareholder's agreement (if any); provided, no such Encumbrances shall in any manner restrict, invalidate or delivered condition the transactions contemplated herein;
(v) an assignment in connection with form and substance acceptable to Buyer sufficient to transfer Seller's membership interest in Allied Seed free and clear of all Encumbrances except as set forth in Allied Seed's certificate of organization and operating agreement; provided, no such Encumbrances shall in any manner restrict, invalidate or condition the Closing transactions contemplated herein;
(collectively vi) a secretary's certificate from Seller certifying Seller's certificate of incorporation, bylaws, copies of resolutions duly adopted by the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out board of directors of Seller approving the intention execution and delivery of this Agreement and the other closing of the transactions contemplated to take place in connection therewith. The Closing Documents hereunder and other items the incumbency of the officers of Seller executing any document to be delivered at the Closing shall be the following:pursuant to this Agreement;
(avii) The Contribution search results of the state and Assumption Agreement public records of each county listed on Schedule 5.3(b) confirming the absence of any -------- ------ Encumbrance, judgment, pending litigation, tax liens and bankruptcy proceedings which affect or could affect Seller's ability to close the transactions contemplated hereunder or the Acquired Assets or the Business other than Permitted Encumbrances;
(ix) lease agreements executed by Seller in the form attached hereto as Exhibit B;B relating to the Special Lease Properties; ------- -
(bx) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release an environmental escrow agreement executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor Seller in the form attached hereto as Exhibit C relating to the East Berlin Property; ------- -
(xi) a closing certificate executed by Seller in substantially the form attached as Exhibit D; ----------
(xii) an opinion letter of Bond, Schoeneck & King, PLLC, counsel ▇▇ ▇▇▇▇▇▇, in the form attached as Exhibit E; ----------
(xiii) letters from the New Jersey Department of Environmental Protection confirming that the transfer of the Owned Real Property located in New Jersey. is not subject to ISRA or documentation that Seller is taking all necessary steps to comply with ISRA;
(gxiv) A copy of all other certificates, instruments and documents necessary or appropriate to consummate the most recent as-built survey of the Property, if any;
(h) Any other documents that are transactions contemplated in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are this Agreement reasonably requested by the Company Buyer or the Operating Partnership Title Company; and
(xv) five-year lease agreements executed by Seller and Buyer in the form attached as Exhibit I, under which Buyer shall lease to Seller a portion of the real property located in Newville, Pennsylvania and Knowlesville, New York.
(b) Buyer will deliver, or that are reasonably necessary or desirable cause to assignbe delivered, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;Seller:
(i) [A bargain the Purchase Price payable in the manner described in Section 3.2;
(ii) a secretary's certificate from Buyer certifying Buyer's certificate of incorporation, bylaws, copies of resolutions duly adopted by the board of directors of Buyer approving the execution and sale deed delivery of this Agreement and the closing of the transactions contemplated hereunder and the incumbency of the officers of Buyer executing any document to be delivered pursuant to this Agreement;
(iii) the assignment and assumption agreement with respect to the Contracts;
(iv) a license agreement executed by Buyer in the form attached hereto as Exhibit A; ---------
(v) lease agreements executed by Buyer in the form attached hereto as Exhibit B relating to the Special Lease Properties; ---------
(vi) an environmental escrow agreement executed by Buyer in the form attached hereto as Exhibit C relating to the East Berlin --------- Property;
(vii) a Closing Certificate executed by Buyer in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]; ---------
(jviii) A standard owner’s affidavit executed by Contributor opinion letter of Wildman, Harrold, Allen & Dixon, counsel to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary▇▇▇▇r, effective ▇▇ ▇▇e form attached as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);Exhibit G; ---------
(kix) The Operating Partnership and the Company on the one hand and Contributor on the all other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, instruments and documents necessary or appropriate to consummate the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties transactions contemplated in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified reasonably requested by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release Seller or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyTitle Company; and
(px) An assignment five-year lease agreements executed by Seller and Buyer in the form attached as Exhibit I. under which Buyer shall lease --------- to Seller a portion of Excluded Assets from the Companyreal property located in Newville, the Operating Partnership or a SubsidiaryPennsylvania and Knowlesville, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableNew York.
Appears in 1 contract
Sources: Asset Purchase Agreement (Agway Inc)
Closing Deliveries. On At the Closing Date, the parties following shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingoccur:
(a) The Contribution Saracen Members, Whitehall and Assumption WCPT shall each execute and deliver the Operating Agreement, as amended by the Operating Agreement Amendment in the form attached annexed hereto as Exhibit BAD, and Contributee shall issue to the Saracen Members the requisite Membership Units and the Series A Preferred Membership Units described in Section 3 above (it being acknowledged that such issuance shall be evidenced by Schedule 5.1(h) of the Operating Agreement Amendment, and Contributee will not be delivering separate certificates in respect of such Membership Units or such Series A Preferred Membership Units);
(b) The OP Agreement and Contributee shall pay the ArticlesCash Balance to such Persons as Contributor shall direct in writing;
(c) The Amendment or Each of the Non-Nomura Property Owners (other evidence than Seventy ▇▇▇▇▇ Avenue LLC with respect to 70 ▇▇▇▇▇) shall execute, acknowledge and deliver to Contributee a Massachusetts quitclaim deed for its Non-Nomura Property, substantially in the form of Exhibit O-1 annexed hereto and in proper form for recording (except that the deed for 2331 Congress shall be a Maine quitclaim deed with covenants, substantially in the form of Exhibit O- 2 annexed hereto), together with such signed transfer tax returns and/or transfer tax affidavits as are required by applicable law in connection with the conveyance of the Non-Nomura Properties (other than 70 ▇▇▇▇▇), including, without limitation, the required Real Estate Transfer Tax form required to be filed with the applicable County Registry of Deeds in Maine in connection with the transfer of OP Units to Contributor and by Contributor to its Participants2331 Congress;
(d) Evidence Contributor and Contributee shall each execute, acknowledge and deliver to the other an instrument of the DTC Registered REIT Stockassignment and assumption, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as of Exhibit E;
P annexed hereto, duly executed, acknowledged and delivered by ▇▇▇▇▇▇▇▇ Holding Trust General Partnership and Contributee, sufficient to (gi) A copy transfer to Contributee all of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directlyContributed LLC Interests, free and clear of all Liens liens and encumbrances affecting such member interests (other than any liens securing the Permitted EncumbrancesLazard Mezzanine Loan) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) provide that Contributee shall assume all of the Existing Loan Release or obligations of ▇▇▇▇▇▇▇▇ Holding Trust General Partnership under the Existing Loan Indemnity Agreement in substantially operating agreement of ▇▇▇▇▇ Avenue Holdings LLC arising from and after the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; andClosing Date.
(pe) An assignment Contributor shall cause each of Excluded Assets from the Company, Saracen Members to execute and deliver the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.4.2(j)
Appears in 1 contract
Sources: Contribution Agreement (Wellsford Real Properties Inc)
Closing Deliveries. On Administrative Agent shall have received each of the following documents, instruments and agreements, each of which shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and Required Banks and each of which shall, unless otherwise indicated, be dated the Closing Date:
(i) a Note payable to the order of each Bank in the amount of such Bank's Commitment, duly executed and delivered by each Borrower;
(ii) the parties Parent Pledge Agreement duly executed and delivered by Parent together with (A) certificates (or other evidence acceptable to Administrative Agent) evidencing one hundred percent (100%) of the issued and outstanding Equity of each direct Subsidiary of Parent of every class, which certificates shall make, execute, acknowledge and deliver, be duly endorsed or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact accompanied by stock powers executed in blank (described in Article 5 hereofas applicable), and (B) such financing statements executed by Parent as Administrative Agent shall request to evidence and perfect the OP Agreement Liens granted pursuant to such Parent Pledge Agreement;
(iii) the Subsidiary Pledge Agreements duly executed and delivered by each Subsidiary of Parent (including PEC but excluding Borrowers and OGP), together with (A) certificates (or other legal documents evidence acceptable to Administrative Agent) evidencing one hundred percent (100%) of the issued and items required outstanding Equity of each Indirect Subsidiary of Parent of every class, which certificates shall be duly endorsed or accompanied by stock powers executed in blank (as applicable), and (B) such financing statements executed by each Subsidiary of Parent (other than Borrowers and OGP) as Administrative Agent shall request to evidence and perfect the Liens granted pursuant to each such Subsidiary Pledge Agreement;
(iv) the Facility Guaranties duly executed and delivered by Parent and each Subsidiary of Parent other than Borrowers, PEC and Vista LLC;
(v) the Mortgages to be executed or delivered in connection with on the Closing (collectively the “Closing Documents”) Date pursuant to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement Section 6.1(a), duly executed and the delivered by Borrowers, together with such other transactions contemplated to take place in connection therewith. The Closing Documents assignments, conveyances, amendments, agreements and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebywritings, including, without limitation, UCC-1 financing statements, in form and only substance satisfactory to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is requiredAdministrative Agent;
(ivi) [A bargain the Assignments and sale deed in substantially Amendments to Mortgages to be executed on the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order Closing Date pursuant to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current formSection 6.1(a), duly executed and delivered by Borrowers, together with such endorsements thereto as the Operating Partnership may reasonably request (other assignments, conveyances, amendments, agreements and other writings, including, without limitation, non-imputation endorsementsUCC-1 financing statements, in form and substance satisfactory to Administrative Agent;
(vii) a Certificate of Ownership Interests substantially in the form of Exhibit B, duly executed and delivered by an Authorized Officer of each Borrower;
(viii) an opinion of Conn▇▇ & ▇int▇▇▇, ▇ Professional Corporation, special counsel to Parent and Borrowers, favorably opining as to such matters as Administrative Agent or Required Banks may request;
(iiix) an opinion of Vins▇▇ & ▇lki▇▇ ▇.▇.P., special counsel to Administrative Agent, in form and substance satisfactory to Administrative Agent;
(x) a certificate executed by an Authorized Officer of each Borrower stating that (A) the representations and warranties contained in this Agreement and the other Loan Papers are true and correct in all respects, (B) no Default or Event of Default has occurred which is continuing, and (C) all conditions set forth in this Section 7.1 and Section 7.2 have been satisfied;
(xi) such endorsements UCC-11 search reports as Administrative Agent shall require, prepared as of a date not more than twenty (20) days prior to the currently held owner’s Closing Date, conducted in such jurisdictions and reflecting such names as Administrative Agent shall request;
(xii) a copy of the articles or leasehold policy certificate of title insurance for incorporation, certificate of limited partnership, or comparable charter documents, and all amendments thereto, of each Credit Party accompanied by a certificate that such copy is true, correct and complete, and dated within ten (10) days of the Property Closing Date, issued by the appropriate Governmental Authority of the jurisdiction of incorporation or organization of each such Credit Party, and accompanied by a certificate of the Secretary or comparable Authorized Officer of each such Credit Party, that such copy is true, correct and complete on the Closing Date;
(xiii) a copy of the bylaws, partnership agreement or comparable documents, and all amendments thereto, of each Credit Party accompanied by a certificate of the Secretary or comparable Authorized Officer of each such Credit Party that such copy is true, correct and complete as of the Operating Partnership may reasonably request date hereof;
(including, without limitation, date-down, “Fairway” xiv) certain certificates and co-insurance endorsements), in either event with coverage for other documents issued by the Property equal appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested relating to the an amount reasonably acceptable existence of each Credit Party and to the Operating Partnership, and with a tie-effect that each Credit Party is in endorsement good standing with respect to the payment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(xv) a certificate of incumbency of all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy officers of title insurance, and levels of reinsurance for the Property as reasonably acceptable each Credit Party (to the Operating Partnershipextent a party to any Loan Paper) who will be authorized to execute or attest to any Loan Paper, insuring fee simple and/or leasehold title dated the date hereof, executed by the Secretary or comparable Authorized Officer of each such Credit Party (as applicable);
(xvi) copies of resolutions or comparable authorizations approving the Loan Papers and authorizing the transactions contemplated by this Agreement and the other Loan Papers, duly adopted by the Board of Directors, partners or comparable authority of each Credit Party a party to any Loan Paper, accompanied by certificates of the Secretary or comparable officer or partner of each such Credit Party (as applicable) to all real property that such copies are true and improvements comprising correct copies of resolutions duly adopted at a meeting of or (if permitted by applicable Law and, if required by such Law, by the Property in Bylaws, or other charter documents of each such Credit Party, as applicable) by the name unanimous written consent of the Operating Partnership (or a Subsidiary thereofBoard of Directors of each such Credit Party, as applicable, and that such resolutions constitute all the Operating Partnership may designate)resolutions adopted with respect to such transactions, subject only to have not been amended, modified, or revoked in any respect, and are in full force and effect as of the Permitted Encumbrances (collectively, the “Title Policies”)date hereof;
(kxvii) The Operating Partnership copies of consents of partners of each Credit Party which is a partnership (to the extent required) to the transactions contemplated by this Agreement and the Company on other Loan Papers, duly executed by each partner of such Credit Party required to consent to such transactions, accompanied by certificates of the one hand Secretary or comparable Authorized Officers or partner of each applicable Credit Party that such copies are true and Contributor on the other hand shall provide to the other a certified copy correct copies of all appropriate corporate resolutions or consents of the partners of the Credit Parties required to be executed and granted pursuant to such Credit Party's partnership or limited liability company actions authorizing the execution, delivery agreement and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) all other comparable charter documents of this Agreement, any related documents and the documents listed in this Section 2.3such Credit Party;
(lxviii) Any Tenant Estoppelscertificates from Borrowers' insurance broker setting forth the insurance maintained by Borrowers, any Ground Lease Estoppels stating that such insurance is in full force and any other tenant estoppel certificateseffect, in each case, to that all premiums due have been paid and stating that such insurance is adequate and complies with the extent obtained by the Contributor in accordance with requirements of Section 2.1(b)(viii)9.5;
(mxix) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects copy of each of their respective representations Closing Document and warranties in this Agreement at the Closing Date (except to the extent that all other material documents, instruments and agreements executed and/or delivered by any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender Credit Party in connection with the assumption Closing Transactions, together with a certificate from an Authorized Officer of each Borrower certifying that such copies are accurate and complete and represent the complete understanding and agreement of the parties with respect to the subject matter thereof;
(xx) an opinion of Conn▇▇ & ▇int▇▇▇, ▇ Professional Corporation, special Oklahoma counsel to Borrowers, favorably opining as to such matters as Administrative Agent or prepayment Required Banks may request;
(xxi) an opinion of Cotton, Bled▇▇▇, ▇▇▇▇▇ & ▇aws▇▇, ▇▇ecial Texas counsel to Borrowers, favorably opining as to such matters as Administrative Agent or Required Banks may request;
(xxii) an Existing Loan at opinion of Gordon, Arata, McCo▇▇▇▇ & ▇upl▇▇▇▇▇, L.L.P., special Louisiana counsel to Administrative Agent, favorably opining as to such matters as Administrative Agent or prior Required Banks may request;
(xxiii) an opinion of Hinkle, Cox, Eato▇, ▇▇ff▇▇▇▇ & ▇ens▇▇▇, P.L.L.C., special New Mexico counsel to Closing and (ii) the Existing Loan Release Administrative Agent, favorably opining as to such matters as Administrative Agent or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyRequired Banks may request; and
(pxxiv) An assignment a report or reports in form, scope and detail acceptable to Administrative Agent and Banks setting forth the results of Excluded Assets from a review of Borrowers' Mineral Interests and other operations, which report(s) shall not reflect the Companyexistence of facts or circumstances which would constitute a material violation of any Applicable Environmental Law or which are likely to result in a material liability to any Credit Party, and/or otherwise reveal any condition or circumstance which would reflect that the Operating Partnership or a Subsidiary, as applicable, representations and warranties contained in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable8.16 hereof are inaccurate in any respect.
Appears in 1 contract
Sources: Credit Agreement (Prize Energy Corp)
Closing Deliveries. On The Buyer and the Transitory Subsidiary have received at or prior to the Closing Date, each of the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingfollowing documents:
(a) The Contribution such instruments of conveyance, assignment and Assumption Agreement transfer, in form and substance satisfactory to the form attached hereto Buyer, as Exhibit Bshall be appropriate to convey, transfer and assign to, and to vest in, the Buyer, good, clear, record and marketable title to the LLC Interest;
(b) The OP Agreement such contracts, files and other data and documents pertaining to the ArticlesAssets or AEI's or REP's business as the Buyer may reasonably request;
(c) The Amendment or other evidence copies of the transfer general ledgers and books of OP Units account of AEI and REP, and all federal, state and local income, franchise, property and other tax returns filed by AEI with respect to Contributor and by Contributor to its Participantsthe Assets since January 1, 1994;
(d) Evidence such certificates of AEI's and REP's officers and such other documents evidencing satisfaction of the DTC Registered REIT Stock, which conditions specified in Section 7 as the Buyer shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without chargereasonably request;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within certificates of the meaning Secretary of Section 1.1445-2(d)(2)(iii), State of the sole owner State of Contributor for such purposes) Massachusetts as to the legal existence and good standing of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)AEI and REP in Massachusetts;
(f) The release executed certificates of the Secretary of AEI and of REP attesting to the incumbency of AEI's and REP's officers, respectively, the authenticity of the resolutions authorizing the transactions contemplated by Operating Partnership the Agreement, and the Company in favor authenticity and continuing validity of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit Echarter documents delivered pursuant to Subsection 2.1;
(g) A copy Estoppel certificates from each lessor from whom AEI or REP leases real or personal property consenting to the assumption of such lease by the most recent as-built survey Buyer (in the case of the Property, if anyAEI Lesser) and representing that there are no outstanding claims against AEI or REP under any such lease;
(h) Any other documents that are Estoppel certificates from each tenant to whom AEI or REP leases real property consenting to the assumption of such lease by the Buyer (in the possession case of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted EncumbrancesAEI) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and representing that there are no outstanding claims against AEI or REP under any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is requiredsuch lease;
(i) [A bargain and sale deed the schedules listed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title PoliciesSubsection 7.9;]
(j) A standard owner’s affidavit executed by Contributor to a title policy or policies (together, the extent necessary to enable the "Title Company to issue to the Operating Partnership Policy") from one or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of more title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount companies reasonably acceptable to the Operating PartnershipBuyer (the "Title Insurer"), in form and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as substance reasonably acceptable satisfactory to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising Buyer covering the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)Real Estate;
(k) The Operating Partnership such affidavits and indemnities executed by AEI and REP as the Company on Title Insurer may reasonably require in order to omit from the one hand Title Policy all exceptions for (I) judgments, bankruptcies or other returns against persons or entities whose names are the same as or similar to AEI or REP; (ii) parties in possession other than under rights to possession granted under the Leases; (iii) mechanics' liens; and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (iv) hazardous waste (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3applicable);
(l) Any Tenant Estoppelssuch other documents, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to instruments or certificates as the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents Buyer may reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablerequest.
Appears in 1 contract
Closing Deliveries. On the Closing Date, the parties The following documents shall make, execute, acknowledge have been delivered ------------------ to Physician and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingPractice Group:
(a) The Contribution Third Amended and Assumption Agreement in Restated Articles of Incorporation and Bylaws of PHC and the form attached hereto as Exhibit BArticles of Incorporation, Bylaws and Stock Certificates of PHC- SUB;
(b) The OP Agreement Certificates dated the Closing Date signed by duly authorized representatives of PHC and PHC-SUB certifying that the Articles;representations and warranties are true and correct on the date of such certificates and that PHC and PHC-SUB have fulfilled all of the conditions of this SECTION 9.3; -----------
(c) The Amendment or other evidence Consent Resolutions of the transfer Board of OP Units to Contributor Directors of PHC and PHC-SUB approving the execution, delivery and performance of this Agreement, the Promissory Notes, the other Transaction Documents and the consummation of the transactions contemplated hereby, certified by Contributor to its Participantsa duly authorized representative of PHC and PHC-SUB;
(d) Evidence Opinions of the DTC Registered REIT Stock, which shall bear counsel of PHC and PHC-SUB in substantially the legend set forth in the Articles or a written statement form of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;EXHIBIT H-1 AND H-2 attached hereto; -------------------
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within The Investment Agreement in substantially the meaning form of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)EXHIBIT F --------- attached hereto executed by Physician and PHC pursuant to this Agreement;
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit ECash Payment;
(g) A copy of the most recent as-built survey of the Property, if anyFour Hundred Thirty Two Thousand (432,000) PHC Prime Shares;
(h) Any The Registration Rights Agreement in substantially the form of EXHIBIT G attached hereto; ---------
(i) The Promissory Notes in substantially the forms of EXHIBIT I-1 and ----------- EXHIBIT I-2, respectively, attached hereto executed by PHC-SUB; -----------
(j) Wire transfer instructions for the payoff on the note payable by SDC to the First National Bank and Trust of Carbondale, Illinois ("FNB of Carbondale"), an executed copy of the FNB of Carbondale payoff letter and the State of Illinois UCC-3 terminating FNB of Carbondale's security interest in certain SDC assets executed by the appropriate bank officer; and
(k) Such other documents that are in necessary for the possession consummation of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebyherein as counsel for Physician shall reasonably request, including, without limitation, and only any documents required to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings be filed with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablebody.
Appears in 1 contract
Closing Deliveries. On Lender shall have received on or before the Closing Dateclosing date, the parties shall makein form and substance satisfactory to Lender, executeall documents, acknowledge instruments and deliverinformation and all other agreements, or cause to be madenotes, executedcertificates, acknowledged and deliveredorders, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof)authorizations, the OP Agreement financing statements, mortgages and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered Lender may at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebyany time request, including, without limitation, and only to the extent applicablefollowing:
(1) this duly executed Agreement (including Conditions Rider, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments Reporting Addendum and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is requiredSchedules);
(i2) [A bargain duly executed UCC-l Financing Statements listing Borrower as debtor and sale deed Lender as secured party to be filed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policiesall appropriate jurisdictions;]
(j3) A standard owner’s affidavit receipt of clear UCC, tax lien and pending suit and judgment searches in all requisite jurisdictions for Borrower (under both its current name of HMI Industries, Inc. and its former name of Health-Mor, Inc.) or appropriate termination statements and/or releases for Borrower and all Subsidiaries;
(4) evidence of Borrower's property/liability insurance and Lender's loss payable endorsements;
(5) a duly executed Mortgage;
(6) a duly executed Lockbox/Blocked Account Agreement with Star Bank;
(7) evidence that the Borrower is a corporation in good standing with the State of Delaware;
(8) evidence that, on or before the closing date, (a) Borrower has consummated all the transactions contemplated by Contributor the Bliss Acquisition; (b) the Bliss Acquisition net proceeds of at least $30 million have been advanced to Borrower; and (c) all indebtedness and obligations of Borrower to Star Bank, under the extent necessary to enable Australian Line of Credit, under the Title Company to issue to Netherlands Line of Credit and under the Operating Partnership or its Subsidiary7 year private placement term notes, effective as shall have been paid in full with the proceeds of the ClosingBliss Acquisition and all liens associated therewith terminated;
(9) receipt of a business plan, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” financial projections and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably a takeover audit acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)Lender;
(k10) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment Assignment for Security of Excluded Assets from the CompanyPatent, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.Trademark and Copyrights;
Appears in 1 contract
Closing Deliveries. On (a) By Sellers. At the Closing DateClosing, the parties shall make, execute, acknowledge and deliver, Parent will deliver or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required delivered to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingPurchaser:
(ai) The Contribution and Assumption Agreement if the Purchased Equity Interests are certificated, certificates representing the Purchased Equity Interests, duly endorsed in the form attached hereto as Exhibit Bblank or accompanied by stock powers or any other proper instrument of assignment duly endorsed in blank;
(bii) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments certificates of title, deeds, notarial deeds, real property transfer tax declarations and all state other instruments of assignment and local transfer Tax returns and any filings with any applicable governmental jurisdiction as may be reasonably necessary to vest in which the Operating Partnership is required to file its partnership documentation Purchaser or the recording applicable Purchaser Designee(s) all of deeds the Asset Sellers’ right, title and interest in and to the Acquired Assets and the Purchased Equity Interests and the Assumed Benefit Plans (in form and substance mutually agreed between the Parties but as shall be consistent with the terms and conditions of this Agreement) (collectively, the “Business Transfer Documents”), duly executed by Parent or other Property Interest transfer documents is requiredthe applicable Seller;
(iiii) [A bargain and sale deed the transition services agreement, substantially in substantially the form attached as Exhibit F3.2(a)(iii) (the “Transition Services Agreement”), duly executed by Parent or in such form as is customary the applicable Seller;
(iv) the bailment agreement, substantially in the form attached as Exhibit 3.2(a)(iv) (the “Bailment Agreement”), duly executed by Parent or the applicable jurisdiction which the Title Company shall require in order to issue the Title PoliciesSeller;]
(jv) A standard owner’s affidavit each other Ancillary Agreement, duly executed by Contributor to Parent or the extent necessary to enable applicable Seller;
(vi) unless otherwise requested by Purchaser, resignation letters from the Title Company to issue to directors, officers and managers, as the Operating Partnership or its Subsidiarycase may be, of the Purchased Companies, effective immediately after the Closing;
(vii) a non-foreign person affidavit dated as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current formClosing Date from each Seller set forth on Exhibit 3.2(a)(vii), with sworn under penalty of perjury and in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code stating that such endorsements thereto Selling Shareholder or Asset Seller is not a “foreign person” as defined in Section 1445 of the Operating Partnership may reasonably request Code;
(including, without limitation, non-imputation endorsementsviii) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements)a certificate, in either event with coverage for the Property equal to the an amount form and substance reasonably acceptable to the Operating PartnershipParties, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy from each Seller set forth on Exhibit 3.2(a)(viii), certifying that none of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title their respective assets are United States real property interests (as applicabledefined in Section 897(c)(1) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”Code);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (iiix) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each caseExcluded Transfer Documents, duly executed by Parent or the applicable partySeller; and
(px) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, such other customary closing documents and instruments as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablerequired by this Agreement.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement
Closing Deliveries. On (a) At the Closing, Seller shall deliver to Pure Cycle the following documents or instruments properly executed, and, where necessary, acknowledged by a notary:
(i) The certificate or certificates for the shares of Fort Lyon Canal Company representing the Water Rights or if certificates cannot reasonably be provided as of the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact then stock powers for such shares (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing DocumentsFLCC Certificates or Stock Powers”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(fii) The release executed by Operating Partnership and certificate or certificates for the Company in favor shares representing the LAWMA Rights or if certificates cannot reasonably be provided as of the employees and Affiliates of Closing Date, then stock powers for such shares (the Supervisor in the form attached hereto as Exhibit E“LAWMA Certificates or Stock Powers”);
(giii) A copy The certificate or certificates or, if applicable, other appropriate instruments representing the Wheat Ridge Mutual Ditch Company shares or if certificates cannot reasonably be provided as of the most recent as-built survey of the PropertyClosing Date, if anythen stock powers for such shares;
(hiv) Any The certificate or certificates or other documents that are in appropriate instruments, if applicable, representing the possession May Valley Water Association shares or if certificates cannot reasonably be provided as of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or Closing Date, then stock powers for such shares;
(v) The Seller Pledge Agreement and stock transfer powers with respect to the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver pledged Shares;
(vi) Special warranty deeds (the “Property Deeds”) conveying the Property Interest of Contributor directly, free and clear of all Liens (other than water ▇▇▇▇▇ and the Mineral Rights) to Pure Cycle and warranting title subject only to Permitted Liens and Liens otherwise accepted by Pure Cycle in writing;
(vii) Special warranty deeds (the “Mineral Deeds”) conveying the Mineral Rights to Pure Cycle and warranting title subject only to Permitted Liens and Liens otherwise accepted by Pure Cycle in accordance with Section 7.8;
(viii) A settlement statement prepared by the Title Company (the “Settlement Statement”);
(ix) The Title Company’s unconditional written undertaking to issue the owner’s title policy, insuring fee simple title to the Property in Pure Cycle in accordance with the Title Commitments, subject only to the Permitted EncumbrancesLiens and Liens otherwise accepted by Pure Cycle in accordance with Section 7.8 (the “Title Company Undertaking”);
(x) The Pure Cycle Pledge Agreement;
(xi) Certificates representing the shares of capital stock of ▇▇▇▇▇▇▇ Enterprises, Inc. and effectuate stock powers transferring such shares to Pure Cycle;
(xii) Quit claim deeds to the water ▇▇▇▇▇ listed on Schedule 2.7 (the “Quit Claim ▇▇▇▇▇”) (each of which was acquired by Seller by quit claim deed); and
(xiii) Such assignments, consents, instruments and agreements as are required or contemplated herein, or as Pure Cycle or the Title Company may reasonably require to effect the transactions contemplated hereby, including, including without limitation, limitation those affidavits and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary agreements sufficient to enable the Title Company to issue delete the standard exceptions (to the Operating Partnership extent contemplated by Article VII) from the Title Commitments.
(b) At the Closing, Pure Cycle shall deliver to Seller the following documents or its Subsidiaryinstruments properly executed, effective and, where necessary, acknowledged by a notary:
(i) A letter of transmittal issued by Pure Cycle to Pure Cycle’s transfer agent dated as of the Closing, with respect to Closing Date directing the Property, either (i) an ALTA extended coverage owner’s or leasehold policy issuance of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property Shares in the name of the Operating Partnership Seller in two certificates, each representing one-half of the Shares (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title PoliciesTransfer Agent Letter”);
(kii) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3Settlement Statement;
(liii) Any Tenant EstoppelsSuch consents, any Ground Lease Estoppels instruments and any other tenant estoppel certificatesagreements as are required or contemplated herein, in each caseor as Seller or the Title Company may reasonably require to effect the transactions contemplated hereby, including without limitation those affidavits and agreements sufficient to enable the Title Company to delete the standard exceptions (to the extent obtained contemplated by Article VII) from the Contributor Title Commitments;
(iv) The certificate or certificates representing the Fort Lyon Canal Company shares pledged pursuant to the Pure Cycle Pledge Agreement;
(v) The Pure Cycle Pledge Agreement;
(vi) The Seller Pledge Agreement; and
(vii) The Tap Participation Fees in respect of the Water Taps described on Schedule 2.5(b) for which Pure Cycle has received payment prior to the Closing.
(c) Pure Cycle shall pay all recording fees and documentary fees required in connection with the delivery and recording of the Deeds. Seller shall pay all recording fees required in connection with the recording of releases of any existing encumbrances. The parties shall each pay one-half of any Title Company escrow or closing fees, and the parties shall pay the other costs of title insurance premiums and expenses in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and 7.4. Pure Cycle shall pay the transfer fees imposed by the Fort Lyon Canal Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment transfer of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableWater Rights.
Appears in 1 contract
Closing Deliveries. On the Closing Date, the parties shall make, execute, acknowledge and deliver, At or cause prior to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the each Closing, with respect to each Principal Holder that requests the Property, either Exchange contemplated for such Closing:
(i) to the extent that such Principal Holder’s Exchange Shares are certificated, such Principal Holder shall deliver to HMH B.V. or the Corporation, as applicable, certificates representing the Exchange Shares for the number Bundles of Exchange Shares specified in the applicable Redemption Request (or an ALTA extended coverage owner’s affidavit of loss in lieu thereof in customary form, without any requirement to post a bond or leasehold policy of title insurance (in current formfurnish any other security), with accompanied by security transfer powers, in form reasonably satisfactory to HMH B.V. or the Corporation, as applicable, duly executed in blank by such endorsements thereto as Principal Holder or such Principal ▇▇▇▇▇▇’s duly authorized attorney, to be Exchanged based on the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or Exchange Rate in effect at the applicable Closing;
(ii) such endorsements Principal Holder shall represent in writing that no Liens exist on the Exchange Shares delivered pursuant to Sections 2.01(d)(i) (other than transfer restrictions imposed by or under applicable securities laws, the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” Agreement and co-insurance endorsementsthis Agreement), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in or that any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)Liens have been released;
(kiii) The Operating Partnership and in the Company on the one hand and Contributor on the other hand shall provide event that Akastor elects, pursuant to the other a certified copy Hybrid Exchange Option, to exchange Mercury US Shares in lieu of all appropriate corporate resolutions or partnership or limited liability company actions authorizing HMH B.V. Non-Voting Class A Shares, ▇▇▇▇▇▇▇ shall represent in writing that the execution, delivery Mercury US Shares have been duly authorized and performance by the Operating Partnership validly issued and the Company (if so requested by Contributor) are fully paid and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3non-assessable;
(liv) Any Tenant Estoppelsif such Principal Holder delivers to HMH B.V. or the Corporation, any Ground Lease Estoppels and any other tenant estoppel certificatespursuant to Section 2.01(d)(i), a certificate representing a number of Exchange Shares that is greater than the number of Bundles of Exchange Shares specified in each casethe applicable Redemption Request, HMH B.V. or the Corporation will deliver to such Principal Holder certificates representing the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);excess Exchange Shares, as applicable; and
(mv) The Operating Partnership HMH B.V. or the Corporation, as applicable, shall deliver or cause to be delivered to such Principal Holder (x) the applicable Stock Consideration, registered in such names and such denominations as such Principal Holder requested pursuant to Section 2.01(b)(iii) or, if the Corporation and the Company on Exchanging Principal Holder have mutually agreed as provided in Section 2.01(a), (y) the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to applicable Cash Consideration. To the extent that any representation Stock Consideration is to be paid or warranty speaks as settled through the facilities of an earlier dateThe Depository Trust Company, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release HMH B.V. or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing)Corporation, as applicable, in each caseshall, duly executed by subject to Section 3.02(a) below, upon the applicable party; and
(p) An assignment written instruction of Excluded Assets from a Principal Holder, deliver or cause to be delivered such Stock Consideration deliverable to such Principal Holder, through the facilities of The Depository Trust Company, to the Operating Partnership or a Subsidiary, as applicable, in favor account of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableparticipant of The Depository Trust Company designated by such Principal Holder.
Appears in 1 contract
Sources: Exchange Agreement (HMH Holding Inc)
Closing Deliveries. On Administrative Agent shall have received each of the following documents, instruments and agreements, each of which shall be in form and substance and executed in such counterparts (if applicable) as shall be acceptable to Administrative Agent and each Bank and each of which shall, unless otherwise indicated, be dated the Closing Date:
(i) counterparts of this Agreement in such number as may be requested by Administrative Agent duly executed by Borrower;
(ii) a Note payable to the order of each Bank, each in the parties shall makeamount of such Bank’s Maximum Commitment Amount, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through duly executed by Borrower;
(iii) the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required Mortgages to be executed or delivered in connection with on the Closing Date pursuant to Section 5.1(a), duly executed and delivered by each Credit Party (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement as applicable), and the such other transactions contemplated to take place in connection therewith. The Closing Documents assignments, conveyances, amendments, agreements and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebywritings, including, without limitation, UCC-1 financing statements, in form and only substance satisfactory to Administrative Agent, creating first priority Liens in the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction Borrowing Base Properties evaluated in which the Operating Partnership is required to file its partnership documentation or Initial Reserve Report comprising the recording of deeds or other Property Interest transfer documents is requiredMinimum Collateral Amount;
(iiv) [A bargain the Borrower Pledge Agreement duly executed and sale deed delivered by Borrower, together with (A) all certificates (or other evidence acceptable to Administrative Agent) evidencing one hundred percent (100%) of the issued and outstanding Equity of Operating, DG&M, EAP Properties and Encore Holdings of every class, which certificates shall be duly endorsed or accompanied by appropriate stock powers (as applicable) executed in substantially the blank, and (B) such other agreements and writings, including, without limitation, UCC-1 financing statements, in form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order and substance satisfactory to issue the Title PoliciesAdministrative Agent;]
(jv) A standard owner’s affidavit Subsidiary Pledge Agreements duly executed and delivered by Contributor Operating, Encore Holdings, EAP Properties, EAP Operating GP, and Encore Operating LP, respectively, together with (A) all certificates (or other evidence acceptable to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as Administrative Agent) evidencing one hundred percent (100%) of the Closingissued and outstanding Equity of Onshore, with respect Marine, TRF, Green Pipeline, Greencore Pipeline, Operating Louisiana, EAP Operating GP, Encore Partners GP Holdings and Encore Partners LP Holdings of every class, which certificates shall be duly endorsed or accompanied by appropriate stock powers (as applicable) executed in blank, and (B) such other agreements and writings, including, without limitation, UCC-1 financing statements, in form and substance satisfactory to Administrative Agent;
(vi) Facility Guarantees duly executed and delivered by each Restricted Subsidiary;
(vii) the Property, either Initial Reserve Report;
(iviii) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request financing statements (including, without limitation, non-imputation endorsementsthe financing statements referenced in subclause (iii) or above) in form and substance acceptable to Administrative Agent to fully evidence and perfect all Liens contemplated by the Loan Papers, all of which shall be filed of record in such jurisdictions as Administrative Agent shall require in its sole discretion;
(iiix) such endorsements to the currently held owner’s or leasehold policy audited consolidated financial statements of title insurance each of Borrower and Encore for the Property Fiscal Year ended December 31, 2007 and December 31, 2008;
(x) unaudited consolidated financial statements of each of Borrower and Encore for the Fiscal Quarters ended March 31, 2009, June 30, 2009 and September 30, 2009; provided, that such financial statements (1) shall not be required to include any information or notes required by Article 10 of Regulation S-K of the Securities Act of 1933 (as amended) to be included in unaudited interim financial statements of Borrower or Encore and (2) are subject to normal year-end adjustments;
(xi) any financial statements of each of Borrower and Encore for completed or pending acquisitions that may be required under Regulation S-X of the Operating Partnership may reasonably request Securities Act of 1933 (including, without limitation, date-down, “Fairway” and co-insurance endorsementsas amended), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement except with respect to all Contributed Properties located Rules 3-10 and 3-16 thereof;
(xii) a pro forma consolidated balance sheet of Borrower as of September 30, 2009 and a pro forma statement of operations for the three (3) Fiscal Quarters ending on such date, in each case adjusting such financial statements to give effect to the consummation of the Encore Merger and the financing reflected in the final joint proxy statement prospectus dated February 5, 2010 as if such transactions had occurred on such date or on the first day of such period, as applicable, prepared in accordance with Regulation S-X of the Securities Act of 1933 (as amended), except with respect to Rules 3-10 and 3-16 thereof;
(xiii) appropriate UCC search certificates reflecting no prior Liens encumbering the properties of Borrower and the other Credit Parties for the jurisdiction or formation or organization, as applicable, of each Credit Party and any state for which such tie-in endorsements can be issued for an owner’s other jurisdiction requested by Administrative Agent; other than those being assigned or leasehold policy released on or prior to the Effective Date or Liens permitted under Section 9.3;
(xiv) a copy of title insurancethe articles or certificate of incorporation, certificate of organization, or comparable charter documents, and levels all amendments thereto, of reinsurance for each Credit Party accompanied by a certificate that such copy is true, correct and complete, and dated within ten (10) days of the Property Closing Date (or within such other period as reasonably acceptable to Administrative Agent), issued by the Operating Partnershipappropriate Governmental Authority of the jurisdiction of incorporation of each such Credit Party, insuring fee simple and/or leasehold title and accompanied by a certificate of the Secretary or comparable Authorized Officer of each such Credit Party that such copy is true, correct and complete on the Closing Date;
(xv) a copy of the bylaws, regulations or comparable charter documents, and all amendments thereto, of each Credit Party accompanied by a certificate of the Secretary or comparable Authorized Officer of each such Credit Party that such copy is true, correct and complete as of Closing Date;
(xvi) certain certificates and other documents issued by the appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested (or such other evidence satisfactory to Administrative Agent) relating to the existence of each Credit Party and to the effect that each such Credit Party is in good standing with respect to the payment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(xvii) a certificate of incumbency of all officers of each Credit Party who will be authorized to execute or attest to any Loan Paper, dated the Closing Date, executed by the Secretary or comparable Authorized Officer of each such Credit Party;
(xviii) copies of resolutions or comparable authorizations approving the Closing Transactions and Loan Papers, and authorizing the transactions contemplated by this Agreement and the other Loan Papers, duly adopted by the Board of Directors (or comparable authority) of each Credit Party accompanied by certificates of the Secretary or comparable officer of each such Credit Party that such copies are true and correct copies of resolutions duly adopted at a meeting of or (if permitted by applicable Law and, if required by such Law, by the bylaws or comparable charter documents of each such Credit Party, as applicable) to all real property and improvements comprising by the Property in the name unanimous written consent of the Operating Partnership Board of Directors (or a Subsidiary thereofcomparable authority) of each such Credit Party, as applicable, and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect as of the Closing Date;
(xix) an opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP as special counsel for the Credit Parties dated the Closing Date, favorably opining as to the enforceability of each of the Loan Papers and otherwise in form and substance satisfactory to Administrative Agent and Banks;
(xx) opinions of special counsel in Mississippi, Montana, North Dakota and Utah, in each case for Administrative Agent dated the Closing Date, favorably opining as to the enforceability of the Mortgages in Mississippi, Montana, North Dakota and Utah, as the Operating Partnership case may designate)be, subject only and otherwise in form and substance satisfactory to the Permitted Encumbrances (collectively, the “Title Policies”)Administrative Agent and Banks;
(kxxi) The Operating Partnership an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP as special counsel for the Credit Parties dated the Closing Date, favorably opining as to such matters requested by Administrative Agent and otherwise in form and substance satisfactory to Administrative Agent and Banks;
(xxii) a certificate signed by an Authorized Officer of Borrower stating that (A) the representations and warranties contained in this Agreement and the Company on other Loan Papers are true and correct in all respects, (B) no Default or Event of Default has occurred and is continuing, (C) Borrower is in compliance with the one hand covenant set forth in Section 10.1 as of December 31, 2009 (and Contributor on setting forth the other hand shall provide to the other a certified copy necessary calculations with respect thereto as of such date), and (D) all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed conditions set forth in this Section 2.36.1 and Section 6.2 have been satisfied;
(lxxiii) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained a solvency certificate signed by the Contributor Financial Officer of Borrower stating that the Credit Parties are solvent in accordance with Section 2.1(b)(viii)7.26;
(mxxiv) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide no later than five (5) days prior to the Closing Date, all documentation and other information required by any Governmental Authority under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, requested in writing by Administrative Agent within a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except reasonable period prior to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects)day;
(nxxv) Any books, records a Certificate of Ownership Interests signed by an Authorized Officer of Onshore and Organizational Documents relating Encore Operating LP (after giving effect to Contributor that are the Closing Transactions) in the possession form of Contributor or which can be obtained through Contributor’s reasonable effortsExhibit H attached hereto;
(ixxvi) All documents reasonably required certificates from Borrower’s insurance broker setting forth the insurance maintained by a Lender Borrower and the other Credit Parties, stating that such insurance is in connection full force and effect, that all premiums due have been paid and stating that such insurance is adequate and complies with the assumption or prepayment requirements of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partySection 8.6; and
(pxxvii) An assignment a written commodity price risk management policy of Excluded Assets from the CompanyCredit Parties (and Administrative Agent shall have satisfactorily completed its review thereof), the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, together with evidence reasonably satisfactory to achieve the distributions contemplated under Section 1.4, if applicableAdministrative Agent that such commodity price risk management policy shall have been implemented.
Appears in 1 contract
Closing Deliveries. On At the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingClosing:
(a) The Contribution Trango shall deliver or cause to be delivered to Purchaser:
(i) duly executed transfers in favor of Purchaser, or such other Affiliate of Purchaser as Purchaser may designate by written notice to Everest in accordance with Section 2.15 at least five Business Days prior to the Closing Date, in respect of the Acquired Everest Shares together with either the share certificates for the Acquired Everest Shares or an indemnity in a form to be agreed by Trango and Assumption Purchaser in relation to the share certificates for the Acquired Everest Shares;
(ii) the certificates required to be delivered pursuant to Section 8.2(g)(i) and Section 8.2(g)(iii);
(iii) a counterpart signature page to the Transition Services Agreement, duly executed by Trango and Everest;
(iv) a counterpart signature page to the Colocation Services Agreement Amendment, duly executed by TrangoeNett International (Singapore) Pte. Ltd. and Travelport, LP;
(v) a counterpart signature page to each of the Colocation Services Order Amendments, duly executed by TrangoeNett International (Singapore) Pte. Ltd. and Travelport, LP;
(vi) a counterpart signature page to the Investor Rights Agreement, duly executed by Trango, Trango Holdco and Anthony Hynes[reserved];
(vii) a counterpart signature page to the Everest Escrow Agreement, duly executed by Trango;
(viii) resignations, substantially in the form attached hereto as Exhibit BJ, effective as of the Closing Date, of the directors of each of Everest and its Subsidiaries, in each case, requested by Purchaser at least five Business Days in advance of the Closing;
(ix) copies of notices from Everest to the Everest Redeemed Holders informing them of the Everest Redemption; and
(x) a copy of the minutes of a duly held meeting of the board of directors of Everest authorising the transfer of Everest A Shares to the Purchaser.
(b) The OP Agreement Olympus Sellers’ Representatives shall, and each Olympus Seller shall cause the Articles;Olympus Sellers’ Representatives to, deliver or cause to be delivered to Purchaser (provided, that in the case of Section 2.7(b)(i) only, such delivery shall be made by Olympus (and not the Olympus Sellers’ Representatives or any Olympus Seller)):
(ci) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release duly executed by Operating Partnership and the Company transfers in favor of Purchaser, or such other Affiliate of Purchaser as Purchaser may designate by written notice to Olympus in accordance with Section 2.15 at least five Business Days prior to the employees and Affiliates Closing Date, in respect of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens Acquired Olympus Shares (other than the Permitted EncumbrancesDragged Olympus Equityholders) and effectuate the transactions contemplated herebyAcquired Olympus Z Shares, includingtogether with either the share certificates for the Acquired Olympus Shares (other than the Dragged Olympus Shares) and the Acquired Olympus Z Shares or an indemnity, without limitationin customary form, and only in relation to the extent applicable, grant deeds share certificates for the Acquired Olympus Shares (if transferred directly), assignments of ground leases, air space leases other than the Dragged Olympus Equityholders) and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is requiredAcquired Olympus Z Shares;
(iii) [A bargain and sale deed transfers in substantially the form attached as Exhibit Ffavor of Purchaser, or in such form other Affiliate of Purchaser as is customary in the applicable jurisdiction which the Title Company shall require in order Purchaser may designate by written notice to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor Olympus at least five Business Days prior to the extent necessary to enable the Title Company to issue to the Operating Partnership or its SubsidiaryClosing Date, effective as in respect of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor Dragged Olympus Shares duly executed in accordance with Section 2.1(b)(viii)the power of attorney in Article 28 of the Olympus Articles of Association;
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.
Appears in 1 contract
Sources: Deed (WEX Inc.)
Closing Deliveries. On (a) At the Closing DateClosing, Little Rock shall deliver to Camden:
(i) a certified copy of the parties shall makeresolutions of Little Rock's Board of Directors, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through as required for valid approval of the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention execution of this Agreement and the other consummation of the purchase and assumption transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit Bhereby;
(bii) The OP an Assignment and Assumption of Seller Liabilities Agreement and in substantially the Articlesform of Exhibit 1 hereto;
(ciii) The Amendment or other evidence an Assignment and Assumption of Contracts Agreement in substantially the transfer form of OP Units to Contributor and by Contributor to its ParticipantsExhibit 2 hereto;
(div) Evidence a ▇▇▇▇ of the DTC Registered REIT Stock, which shall bear Sale in substantially the legend set forth in the Articles or a written statement form of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without chargeExhibit 3 hereto;
(ev) An affidavit from Contributor (ora quit claim deed conveying all of Little Rock's real property to the Camden, if Contributor is a disregarded entity within other than that certain real property included in the meaning of Retained Assets as described in Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes1(c)(i) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2Stock Purchase Agreement (the "Real Property");
(fvi) The release executed by Operating Partnership an Assignment and Successor Trustee Agreement with respect to the Company in favor transfer of the employees and Affiliates of the Supervisor ▇▇▇ Accounts in substantially the form attached hereto as set forth in Exhibit E4;
(gvii) A copy listings of the most recent as-built survey Deposit Liabilities as of the Propertystart of business on the Closing Date (the "Deposit Listings") on magnetic tape or utilizing such other method of information transfer as the parties may mutually agree, if anywhich Deposit Listings shall include account number, outstanding principal balance, and accrued interest;
(hviii) Any other documents that are in Little Rock's files and records related to all loans (the possession "Loans") comprising the Seller Assets as of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or start of business on the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebyEffective Date, including, without limitation, and only all deposit related overdrafts and/or overdrafts pursuant to an overdraft protection plan which are associated with Deposit Liabilities, the notes or other instruments evidencing such Loans which shall be duly endorsed on their face or by separate assignment by Little Rock to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is requiredCamden without recourse;
(iix) [A bargain teller working cash, ▇▇▇▇▇ cash and sale deed in substantially vault cash at the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective Monticello Branch as of the Closing, with respect start of business on the Closing Date;
(x) such records and files specifically relating to the PropertySeller Assets and Seller Liabilities, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (includingexcluding, without limitation, non-imputation endorsementsthose matters specified in Section 2(e) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)Stock Purchase Agreement;
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.
Appears in 1 contract
Closing Deliveries. On the Closing Date, the parties shall make, execute, acknowledge and deliver, At or cause prior to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the each Closing, with respect to each Principal Holder that requests the Property, either Exchange contemplated for such Closing:
(i) to the extent that such Principal Holder’s Exchange Shares are certificated, such Principal Holder shall deliver to HMH B.V. or the Corporation, as applicable, certificates representing the Exchange Shares for the number Bundles of Exchange Shares specified in the applicable Redemption Request (or an ALTA extended coverage owner’s affidavit of loss in lieu thereof in customary form, without any requirement to post a bond or leasehold policy of title insurance (in current formfurnish any other security), with accompanied by security transfer powers, in form reasonably satisfactory to HMH B.V. or the Corporation, as applicable, duly executed in blank by such endorsements thereto as Principal Holder or such Principal ▇▇▇▇▇▇’s duly authorized attorney, to be Exchanged based on the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or Exchange Rate in effect at the applicable Closing;
(ii) such endorsements Principal Holder shall represent in writing that no Liens exist on the Exchange Shares delivered pursuant to Sections 2.01(d)(i) (other than transfer restrictions imposed by or under applicable securities laws, the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” Agreement and co-insurance endorsementsthis Agreement), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnershipor that any such Liens have been released, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property ultimately as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)per Closing;
(kiii) The Operating Partnership and in the Company on the one hand and Contributor on the other hand shall provide event that Akastor elects, pursuant to the other a certified copy Hybrid Exchange Option, to exchange Mercury US Shares in lieu of all appropriate corporate resolutions or partnership or limited liability company actions authorizing HMH B.V. Non-Voting Class A Shares, ▇▇▇▇▇▇▇ shall represent in writing that the execution, delivery Mercury US Shares have been duly authorized and performance by the Operating Partnership validly issued and the Company (if so requested by Contributor) are fully paid and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3non-assessable;
(liv) Any Tenant Estoppelssuch Principal Holder shall deliver to HMH B.V. or the Corporation, any Ground Lease Estoppels and any other tenant estoppel certificatesas applicable, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii)executed Redemption Request;
(mv) The Operating Partnership if such Principal Holder delivers to HMH B.V. or the Corporation, pursuant to Section 2.01(d)(i), a certificate representing a number of Exchange Shares that is greater than the number of Bundles of Exchange Shares specified in the applicable Redemption Request, HMH B.V. or the Corporation will deliver to such Principal Holder certificates representing the excess Exchange Shares, as applicable; and
(vi) HMH B.V. or the Corporation, as applicable, shall deliver or cause to be delivered to such Principal Holder (x) the applicable Stock Consideration, registered in such names and such denominations as such Principal Holder requested pursuant to Section 2.01(b)(iii) or, if the Corporation and the Company on Exchanging Principal Holder have mutually agreed as provided in Section 2.01(a), (y) the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to applicable Cash Consideration. To the extent that any representation Stock Consideration is to be paid or warranty speaks as settled through the facilities of an earlier dateThe Depository Trust Company, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release HMH B.V. or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing)Corporation, as applicable, in each caseshall, duly executed by subject to Section 3.02(a) below, upon the applicable party; and
(p) An assignment written instruction of Excluded Assets from a Principal Holder, deliver or cause to be delivered such Stock Consideration deliverable to such Principal Holder, through the facilities of The Depository Trust Company, to the Operating Partnership or a Subsidiary, as applicable, in favor account of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableparticipant of The Depository Trust Company designated by such Principal Holder.
Appears in 1 contract
Sources: Exchange Agreement (HMH Holding Inc)
Closing Deliveries. On (a) At the Closing DateClosing, the parties Seller shall make, execute, acknowledge and deliver, deliver (or cause to be made, executed, acknowledged and delivered, through ) to Buyer the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal following documents and items instruments of conveyance and assignment, in each case reasonably satisfactory in form and substance to Buyer and its counsel and duly executed by Seller or such other signatory as may be required to be executed or delivered in connection with by the Closing (collectively nature of the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingdocument:
(ai) The Contribution limited warranty deed(s) in recordable form effective to vest in Buyer good and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence marketable title to all parcels of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Owned Real Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, each case free and clear of all Liens (other than the Permitted EncumbrancesLiens);
(ii) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, duly executed bills of sale, general assignments certificates of title, endorsements, assignments, consents, estoppel certificates, subordination non-disturbance and all state attornment agreements and local other good and sufficient instruments of sale, conveyance, transfer Tax returns and any filings with any applicable governmental jurisdiction in which assignment, sufficient to sell, convey, transfer and assign the Operating Partnership is required to file its partnership documentation or Authorizations, the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Tangible Personal Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form)the Assumed Contracts, with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Real Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating PartnershipLeases, and with a tie-in endorsement with respect the other Assets to all Contributed Properties located in Buyer free and clear of any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title Liens (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the other than Permitted Encumbrances (collectively, the “Title Policies”Liens);
(kiii) The Operating Partnership releases, payoff letters and other instruments evidencing the Company on the one hand release of any and Contributor on the other hand shall provide all Liens applicable to the Assets other than Permitted Liens;
(iv) certified copies of the required consents or resolutions of the directors, members, managers, and/or partners of Seller (or a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions committee thereof duly authorized), authorizing the execution, delivery and performance by Seller of the Operating Partnership and the Company (if so requested transactions contemplated by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and certification that such consents or resolutions were duly adopted at a duly convened meeting of the documents listed directors, members, managers, or partners or committee, at which a quorum was present and acting throughout or by unanimous written consent, and that such consents or resolutions remain in this Section 2.3full force and effect, and have not been amended, rescinded or modified, except to the extent attached thereto;
(lv) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificatesan affidavit of non-foreign status of Seller that complies with Section 1445 of the Code, in each case, to the extent obtained by form attached as Exhibit D hereto (the Contributor in accordance with Section 2.1(b)(viii“FIRPTA Certificate”);
(mvi) The Operating Partnership a certificate, dated as of the Closing Date, executed by an officer of Seller certifying that the conditions set forth on Sections 6.1(a) and the Company on the one hand and Contributor on the other hand shall provide (b) have been satisfied;
(vii) subject to the other a certification regarding the accuracy provisions of Section 1.2 hereof, (x) copies of all Authorizations set forth in all material respects of each of their respective representations Schedule 1.1(a) and warranties in this Agreement at the Closing Date (except y) to the extent in the possession of Seller or its Affiliates or readily available thereto, copies of all Assumed Contracts (including Real Property Leases) and Station Documents;
(viii) a certificate from the appropriate Governmental Authority of
(A) Nevada as to the good standing of Seller and (B) Hawaii as to the good standing as a foreign entity of Seller;
(ix) all Consents and estoppel certificates that any representation Seller is required or warranty speaks as of an earlier datehas otherwise been able to obtain pursuant to this Agreement;
(x) the Spectrum Auction Contingency Agreement, in which case it must be true and correct only the form attached hereto as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respectsExhibit B (the “Spectrum Auction Contingency Agreement”);
(nxi) Any books, records and Organizational Documents relating to Contributor that are a transition services agreement in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closingthe “Transition Services Agreement”), as applicable;
(xii) an Intercreditor Agreement executed by Seller, in each case, duly executed by the applicable partyform attached hereto as Exhibit E (the “Intercreditor Agreement”); and
(pxiii) An assignment such other documents to be delivered by Seller as are reasonably necessary to effectuate and document the transactions contemplated herein.
(b) At the Closing, Buyer shall deliver (or cause to be delivered) to Seller the following documents and instruments of Excluded Assets conveyance and assignment, in each case reasonably satisfactory in form and substance to Seller and its counsel and duly executed by Buyer or such other signatory as may be required by the nature of the document:
(i) the Purchase Price, which shall be paid in the manner specified in
(ii) an instrument or instruments of assumption of the Authorizations, the Assumed Contracts, the Real Property Leases, and the other Assumed Obligations to be assumed by Buyer pursuant to this Agreement;
(iii) a certificate, dated as of the Closing Date, executed by an officer of Buyer, certifying that the conditions set forth in Sections 7.1(a) and (b) have been satisfied;
(iv) certificates from the Companyappropriate Governmental Authority of
(A) Delaware as to the good standing of Buyer and (B) Hawaii as to the good standing as a foreign entity of Buyer;
(v) certified copies of the required consents or resolutions of the directors or managers of Buyer, (or a committee thereof duly authorized), authorizing the execution, delivery and performance by Buyer of the transactions contemplated by this Agreement, and certification that such consents or resolutions were duly adopted at a duly convened meeting of the directors or managers, at which a quorum was present and acting throughout or by unanimous written consent, and that such consents or resolutions remain in full force and effect, and have not been amended, rescinded or modified, except to the extent attached thereto;
(vi) the Spectrum Auction Contingency Agreement;
(vii) the Transition Services Agreement;
(viii) the Intercreditor Agreement executed by each of Buyer, the Operating Partnership or a Subsidiary, other Companies and the Agent party thereto; and
(ix) such other documents to be delivered by Buyer hereunder as applicable, in favor of Contributor, are reasonably necessary to achieve effectuate and document the distributions transactions contemplated under Section 1.4, if applicableherein.
Appears in 1 contract
Sources: Asset Purchase Agreement
Closing Deliveries. On Concurrently with the Closing Dateexecution of this Amendment, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingBorrowers shall:
(a) The Contribution and Assumption Agreement deliver to the Administrative Agent, for delivery to each Lender having a new or increased Revolving Credit Commitment, a Revolving Credit Note in the form attached hereto as Exhibit Bamounts specified in Schedule 1 to the Credit Agreement (after giving effect to this Amendment);
(b) The OP Agreement deliver to the Administrative Agent officer’s certificates for each Borrower certifying copies of the resolutions of the governing body of such Borrower evidencing approval of the execution and delivery of this Amendment and the Articlesexecution of any other Loan Documents required in connection therewith;
(c) The Amendment or other evidence deliver to the Administrative Agent, with respect to each Domestic Credit Party, the results of Uniform Commercial Code lien searches, satisfactory to the transfer of OP Units to Contributor and by Contributor to its ParticipantsAdministrative Agent;
(d) Evidence deliver to the Administrative Agent a good standing certificate (or equivalent) for each Domestic Credit Party, issued on or about the Third Amendment Effective Date, by the Secretary of the DTC Registered REIT Stock, which shall bear substantially the legend set forth State in the Articles state or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without chargestates where such Credit Party is incorporated or formed;
(e) An affidavit from Contributor (orexecute and deliver to the Administrative Agent, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii)for its sole benefit, the sole owner of Contributor for such purposes) of non-foreign status satisfying Third Amendment Administrative Agent Fee Letter, and pay to the requirements of Treasury Regulations section 1.1445-2(b)(2)Administrative Agent the fees stated therein;
(f) The release executed by Operating Partnership execute and deliver to the Company in favor Administrative Agent the Third Amendment Closing Fee Letter, and pay to the Administrative Agent, for the benefit of the employees and Affiliates of Lenders, the Supervisor in the form attached hereto as Exhibit Efees stated therein;
(g) A copy cause each Guarantor of Payment to execute the most recent as-built survey of the Property, if any;attached Guarantor Acknowledgment and Agreement; and
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute pay all legal fees and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as expenses of the Closing, Administrative Agent in connection with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels Amendment and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableDocuments.
Appears in 1 contract
Sources: Credit Agreement (Universal Logistics Holdings, Inc.)
Closing Deliveries. On the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in At the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii)Closing, the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and Seller shall deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;Buyer:
(i) [A bargain and sale deed in substantially signature pages to each of the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit Closing Documents duly executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or Seller;
(ii) such endorsements the documents required to be delivered by the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” Seller pursuant to Sections 7.1 and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)7.2;
(kiii) The Operating Partnership and certified copies of the Company on resolutions duly adopted by the one hand and Contributor on the other hand shall provide to the other a certified copy Seller’s board of all appropriate corporate resolutions or partnership or limited liability company actions directors authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this AgreementAgreement and each of the other agreements in connection with the Transaction, as well as any related documents and other approvals required for the documents listed in this Section 2.3Seller to consummate the Transaction;
(liv) Any Tenant Estoppelsreasonable documentation evidencing the release, or authorizing the release, of any Ground Lease Estoppels Encumbrances existing as of the Closing on any of the Purchased Assets, other than Permitted Encumbrances;
(v) any certificates, duly executed elections or other documents required to be delivered pursuant to Section 8.9;
(vi) the Trust Certificate, dated as of the Closing Date;
(vii) reasonable documentation evidencing that the Seller properly withheld and remitted applicable Taxes on any Intercompany Loans (as defined in the DIP Term Sheet) imposed under the Tax Act and any other tenant estoppel certificatesApplicable Laws; and
(viii) actual possession of the Purchased Assets.
(b) At the Closing, in each case, the Buyer shall deliver to the extent obtained Seller:
(i) signature pages to each of the Closing Documents duly executed by the Contributor Buyer;
(ii) payment of the Purchase Price in accordance with Section 2.1(b)(viii)3.3, and in respect of any amount payable to the Seller to such account as specified by Seller in writing no less than two (2) days prior to the Closing Date, or otherwise in accordance with the Approval and Vesting Order;
(miii) The Operating Partnership certified copies of the resolutions duly adopted by the Buyer’s board of directors authorizing the execution, delivery and the Company on the one hand performance of this Agreement and Contributor on each of the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender agreements in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing)Transaction, as applicable, in each casewell as any other approvals required for the Buyer to consummate the Transaction;
(iv) any certificates, duly executed elections or other documents required to be delivered pursuant to Section 8.9;
(v) the documents required to be delivered by the applicable partyBuyer pursuant to Section 7.3; and
(pvi) An assignment an instrument of Excluded Assets from assumption of liabilities with respect to the CompanyAssumed Liabilities in a form satisfactory to the Seller, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableacting reasonably.
Appears in 1 contract
Closing Deliveries. On At the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingClosing:
(a) The Contribution Trango shall deliver or cause to be delivered to Purchaser:
(i) duly executed transfers in favor of Purchaser, or such other Affiliate of Purchaser as Purchaser may designate by written notice to Everest in accordance with Section 2.15 at least five Business Days prior to the Closing Date, in respect of the Acquired Everest Shares together with either the share certificates for the Acquired Everest Shares or an indemnity in a form to be agreed by Trango and Assumption Purchaser in relation to the share certificates for the Acquired Everest Shares;
(ii) the certificates required to be delivered pursuant to Section 8.2(g)(i) and Section 8.2(g)(iii);
(iii) a counterpart signature page to the Transition Services Agreement, duly executed by Trango;
(iv) a counterpart signature page to the Colocation Services Agreement Amendment, duly executed by Trango;
(v) a counterpart signature page to each of the Colocation Services Order Amendments, duly executed by Trango;
(vi) a counterpart signature page to the Investor Rights Agreement, duly executed by Trango, Trango Holdco and ▇▇▇▇▇▇▇ ▇▇▇▇▇;
(vii) a counterpart signature page to the Everest Escrow Agreement, duly executed by Trango;
(viii) resignations, substantially in the form attached hereto as Exhibit BJ, effective as of the Closing Date, of the directors of each of Everest and its Subsidiaries, in each case, requested by Purchaser at least five Business Days in advance of the Closing;
(ix) copies of notices from Everest to the Everest Redeemed Holders informing them of the Everest Redemption; and
(x) a copy of the minutes of a duly held meeting of the board of directors of Everest authorising the transfer of Everest A Shares to the Purchaser.
(b) The OP Agreement Olympus Sellers’ Representatives shall, and each Olympus Seller shall cause the Olympus Sellers Representatives to, deliver or cause to be delivered to Purchaser (provided, that in the case of Section 2.7(b)(i) only, such delivery shall be made by Olympus (and not the Olympus Sellers’ Representatives or any Olympus Seller)):
(i) duly executed transfers in favor of Purchaser, or such other Affiliate of Purchaser as Purchaser may designate by written notice to Olympus in accordance with Section 2.15 at least five Business Days prior to the Closing Date, in respect of the Acquired Olympus Shares (other than the Dragged Olympus Equityholders) and the ArticlesAcquired Olympus Z Shares, together with either the share certificates for the Acquired Olympus Shares (other than the Dragged Olympus Shares) and the Acquired Olympus Z Shares or an indemnity, in customary form, in relation to the share certificates for the Acquired Olympus Shares (other than the Dragged Olympus Equityholders) and the Acquired Olympus Z Shares;
(cii) The Amendment transfers in favor of Purchaser, or such other evidence Affiliate of Purchaser as Purchaser may designate by written notice to Olympus at least five Business Days prior to the Closing Date, in respect of the transfer Dragged Olympus Shares duly executed in accordance with the power of OP Units to Contributor and by Contributor to its Participantsattorney in Article 28 of the Olympus Articles of Association;
(diii) Evidence duly executed powers of attorney in a form to be agreed by Olympus and Purchaser granted by each Olympus Seller in favor of Purchaser in respect of the DTC Registered REIT Stock, which shall bear substantially the legend set forth voting rights in the Articles or a written statement Acquired Olympus Shares held by the Olympus Sellers and the Acquired Olympus Z Shares held by Olympus in its capacity as trustee of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without chargeDESOP Trust;
(eiv) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of certificates required to be delivered pursuant to Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes8.2(g)(ii) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2and Section 8.2(g)(iv);
(fv) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor resignations, substantially in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its SubsidiaryJ, effective as of the ClosingClosing Date, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership directors of each of Olympus and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificatesits Subsidiaries, in each case, to requested by Purchaser at least five Business Days in advance of the extent obtained by the Contributor in accordance with Section 2.1(b)(viii)Closing;
(mvi) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide a counterpart signature page to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each caseOlympus Escrow Agreement, duly executed by the applicable partyOlympus Sellers’ Representatives;
(vii) where applicable, a copy of a letter from each Olympus Seller to Olympus informing Olympus that it has ceased to be a Registrable RLE/PSC on the Closing Date;
(viii) a copy of a resolution of the board of directors of Olympus, dated prior to the date of this Agreement, approving the terms of this Agreement in so far as they relate to Olympus, including consummation of the sale of the Acquired Olympus Shares; and
(pix) An assignment as evidence of Excluded Assets from the Companyauthority of each person executing a document referred to in this Section 2.7(b) on behalf of an Olympus Seller or the Olympus Sellers’ Representative, a copy of any power of attorney conferring the authority, substantially in the form set out in Exhibit K.
(c) Purchaser shall:
(i) (A) pay to Trango, in cash by wire transfer of immediately available funds, Trango’s portion of the Closing Cash Consideration, (B) pay to Trango Holdco, in cash by wire transfer of immediately available funds, Trango Holdco’s portion of the Closing Cash Consideration and (C) deposit (1) with the Exchange Agent, pursuant to Section 2.8(a), the Operating Partnership Non-Trango Equityholders’ aggregate portion of the Closing Cash Consideration (except for that portion of the Closing Cash Consideration attributable to the Dragged Olympus Equityholders) (for onward distribution by the Exchange Agent as applicable to the Non-Trango Equityholders) and (2) into such bank account of Olympus as Olympus notifies in writing to Purchaser no later than five Business Days prior to Closing, the Dragged Olympus Equityholders’ aggregate proportion of the Closing Cash Consideration (for onward distribution by Olympus, acting as trustee for the Dragged Olympus Equityholders in accordance with Article 28 of the Olympus Articles of Association, as applicable to the Dragged Olympus Equityholders), in the case of each of clauses (A), (B) and (C), as set forth in the Everest Funds Flow or a SubsidiaryOlympus Funds Flow, as applicable;
(ii) (A) deliver to a book entry account in the name of a broker-dealer designated by Trango, to hold on Trango’s behalf, Trango’s portion of the Closing Share Consideration, in favor book-entry form (along with evidence in the books and records maintained by the transfer agent for the Purchaser Common Stock reflecting the ownership of Contributorsuch shares of Purchaser Common Stock), (B) deliver to a book entry account in the name of a broker-dealer designated by Trango Holdco, to achieve hold on Trango Holdco’s behalf, Trango Holdco’s portion of the distributions contemplated Closing Share Consideration, in book-entry form (along with evidence in the books and records maintained by the transfer agent for the Purchaser Common Stock reflecting the ownership of such shares of Purchaser Common Stock) and (C) deposit with the Exchange Agent, pursuant to Section 2.8(a), evidence of book-entry shares constituting the Eligible Non-Trango Equityholders’ aggregate portion of the Closing Share Consideration (for onward distribution in book-entry form by the Exchange Agent as applicable to the Eligible Non-Trango Equityholders), in each case as set forth in the Everest Funds Flow or Olympus Funds Flow, as applicable;
(iii) in accordance with Section 2.3(f), pay to Everest, in order for Everest and its Subsidiaries to pay to each Everest Redeemed Holder and Everest Seller, the amount set forth opposite such holder’s name on the Everest Awards Statement, subject to the provisions of Section 2.3(f) of the Disclosure Schedule;
(iv) in accordance with Section 2.3(g), pay to Olympus, in order for Olympus and its Subsidiaries to pay to each Olympus Redeemed Holder, the Olympus Redemption Closing Amount set forth opposite such holder’s name on the Olympus Awards Statement;
(v) pay on behalf of Everest and its Subsidiaries, in cash by wire transfer of immediately available funds, the Estimated Unpaid Everest Expenses (other than any such amounts paid in accordance with Section 2.7(c)(iii)) in accordance with the invoices, written instructions or other documents evidencing such amounts delivered to Purchaser at least three Business Days prior to the Closing Date;
(vi) pay on behalf of Olympus and its Subsidiaries, in cash by wire transfer of immediately available funds, the Estimated Unpaid Olympus Expenses (other than any such amounts paid in accordance with Section 2.7(c)(iv)) in accordance with the invoices, written instructions or other documents evidencing such amounts delivered to Purchaser at least three Business Days prior to the Closing Date;
(vii) deliver to the Escrow Agent (A) the Everest Retained Cash Amount in immediately available funds and the Everest Retained Shares in book-entry form (such delivery to be in satisfaction of Purchaser’s obligation pursuant to Section 2.5(a)) and (B) the deferred consideration comprising the Olympus Deferred Cash Amount in immediately available funds and the Olympus Deferred Shares in book-entry form (such delivery to be in satisfaction of Purchaser’s obligation pursuant to Section 2.5(b));
(viii) pay to the Olympus Sellers’ Representatives, in cash by wire transfer of immediately available funds, the Olympus Seller Expense Amount into an account designated by the Olympus Sellers’ Representatives, for purposes of satisfying costs, expenses and/or liabilities incurred on behalf of the Olympus Sellers and otherwise in accordance with this Agreement (such payment to be in satisfaction of Purchaser’s obligation pursuant to Section 11.16(g));
(ix) deliver to Olympus in its capacity as trustee of the DESOP Trust an undertaking to pay £1 to Olympus in full satisfaction of its obligation to pay the Z Share Consideration;
(x) deliver to Trango and the Olympus Sellers’ Representatives the certificate required to be delivered pursuant to Section 8.3(d);
(xi) deliver to Trango a counterpart signature page to the Transition Services Agreement, duly executed by Purchaser;
(xii) deliver to Trango a counterpart signature page to the Investor Rights Agreement, duly executed by Purchaser;
(xiii) deliver to Trango a counterpart signature page to the Everest Escrow Agreement, duly executed by Purchaser and the Escrow Agent;
(xiv) deliver to Olympus Sellers’ Representatives a counterpart signature page to the Olympus Escrow Agreement, duly executed by Purchaser and the Escrow Agent; and
(xv) deliver to Trango and the Olympus Sellers’ Representatives a copy of the R&W Insurance Policy, duly executed by (A) Purchaser or an Affiliate of Purchaser and (B) the insurer thereunder, along with evidence that the applicable premium and all other amounts required under Section 1.4, if applicablethe R&W Insurance Policy to be paid on or prior to the Closing have been paid and all conditions thereunder have been satisfied.
Appears in 1 contract
Sources: Share Purchase Agreement (WEX Inc.)
Closing Deliveries. On the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in At the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units Closing, Foundation shall deliver to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;Acquisition Company:
(i) [A bargain certified copies of the Articles of Incorporation and sale deed in substantially Code of Regulations of Foundation and the form attached as Exhibit F, or in such form as is customary in Articles of Incorporation and Constitution of the applicable jurisdiction which the Title Company shall require in order to issue the Title PoliciesBank;]
(jii) A standard owner’s affidavit executed certificates signed by Contributor to appropriate officers of Foundation stating that: (A) each of the extent necessary to enable representations and warranties contained in Article 2 hereof is true and correct at the Title Company to issue to time of the Operating Partnership or its Subsidiary, effective Closing with the same force and effect as if such representations and warranties had been made at Closing (except that representations and warranties that by their terms speak as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) date of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any Agreement or some other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand date shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of such date); and (B) all of the conditions set forth in Sections 6.1(b) and 6.1(d) hereof have been satisfied or waived as provided therein;
(iii) certified copies of the resolutions of the Board of Directors of Foundation and of resolutions of its shareholders as required for valid approval of the execution of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement;
(iv) certified copies of the resolutions of the Board of Directors of the Bank as required for the charter conversion;
(v) a certificate of the Secretary of State of the State of Ohio, dated not more than thirty (30) days prior to Closing, stating that earlier date Foundation is in good standing and except a certificate of corporate existence, dated not more than thirty (30) days prior to Closing, from the OTS as to the Bank;
(vi) the Certificate of Merger executed by Foundation in proper form for filing with the Secretary of State of the State of Ohio in order to cause the Merger to become effective;
(vii) a legal opinion from Vorys, Sate▇, ▇▇▇▇▇▇▇ ▇▇▇ Peas▇ LLP, counsel for Foundation, in form reasonably acceptable to counsel to Acquisition Company and Foundation; and,
(viii) a certificate signed by an appropriate officer of Foundation stating, as of the Closing Date, the number of Outstanding Foundation Common Shares, the number of Foundation Common Shares subject to outstanding Stock Options, the "strike" price for each such Stock Option, the owners of such Stock Options, the number of Foundation Common Shares held in the Bank Recognition Plan and the persons to whom such Foundation Common Shares are issuable and the number of outstanding rights to be awarded a Foundation Common Share under the Bank Recognition Plan as to which no Foundation Common Shares have been acquired by or issued to the Bank Recognition Plan and the persons to whom such rights have been awarded.
(b) At the Closing, Acquisition Company shall deliver to Foundation:
(i) certified copies of the Articles of Incorporation and Regulations of each of Acquisition Company and of Acquisition Sub;
(ii) certificates signed by appropriate officers of Acquisition Company stating that: (A) each of the representations and warranties contained in Article 3 hereof is true and correct at the time of the Closing with the same force and effect as if such representations and warranties had been made at Closing (except that are qualified by materiality or Material Adverse Effect, which representations and warranties that by their terms speak as of the date of this Agreement or some other date shall be certified true and correct only as being accurate of such date); and (B) all of the conditions set forth in all respects)Section 6.2(b) and 6.2(d) hereof (but excluding the approval of Foundation's shareholders) have been satisfied or waived as provided therein;
(niii) Any books, records certified copies of the resolutions of the Boards of Directors of Acquisition Company and Organizational Documents relating to Contributor that are in Acquisition Sub and of Acquisition Sub's sole shareholder as required for valid approval of the possession execution of Contributor or which can be obtained through Contributor’s reasonable effortsthis Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement;
(iiv) All documents a legal opinion from Keat▇▇▇, ▇▇ething & Klek▇▇▇, ▇▇L, counsel for Acquisition Company, in form reasonably required by a Lender in connection with acceptable to counsel for Foundation and Acquisition Company;
(v) certificates of the assumption or prepayment Secretary of an Existing Loan at or prior to Closing and State of the State of Ohio, dated not more than thirty (ii30) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or days prior to Closing), as applicablestating that Acquisition Company and Acquisition Sub are in good standing;
(vi) the Certificate of Merger executed by Acquisition Sub, reflecting the terms and provisions hereof and in proper form for filing with the Secretary of State of the State of Ohio, in each case, duly executed by order to cause the applicable partyMerger to become effective; and,
(pvii) An assignment a copy of Excluded Assets from the Company, signed employment agreement between Lair▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ the Operating Partnership or a Subsidiary, as applicable, Bank referred to in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable5.5(a).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Foundation Bancorp Inc)
Closing Deliveries. On the Closing Date, the parties thereto (or with respect to which the delivery relates) shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through executed and/or delivered to each other (if the Power Closing is to occur by mail) or to the Cleveland Office of Attorney or Escrow Agent (if the Attorney-in-Fact (described Closing is to occur in Article 5 hereofperson), the OP Agreement and other legal following documents and items required to be executed or delivered in connection with (except as otherwise indicated, the Closing parties shall deliver four (collectively the “Closing Documents”4) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention counterparts of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:each document):
(a) The Contribution an Assignment and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement Lease/Sublease in substantially the form attached hereto as Schedule 9(a) (the “Assignment and Assumption of Leases”) pursuant to which KCPLP shall assign to KCPLLC, and KCPLLC shall assume, all of KCPLP’s right, title and interest in and to the Tower Lease, the Hotel Lease, the Hotel Sublease and the Garage Sublease;
(b) a ▇▇▇▇ of sale in substantially the form attached hereto as Schedule 9(b) (the “▇▇▇▇ of Sale”) conveying to KCPLLC all of KCPLP’s right, title and interest in and to all furnishings, furniture, supplies, equipment, fixtures and other personal property located at, or used in connection with the ownership, operation and maintenance of the Project, including without limitation (i) all heating, lighting, air conditioning, ventilating, plumbing, electrical or other mechanical equipment, furniture, furnishings, carpeting, appliances, tools, inventory, supplies, signs, draperies and other equipment and personal property at the Land or the Improvements, and (ii) specifically including the equipment, fixtures and personal property listed in Exhibit C (unless such Existing Loans are repaid at or prior to Closing)A attached thereto, specifically excluding, however, the art work located in the lobby and in the Conference Center on the 27th floor of the Tower Improvements, as applicablemore specifically identified on Exhibit B attached thereto;
(c) an assignment and assumption agreement in substantially the form attached hereto as Schedule 9(c) (the “Assignment and Assumption of Tenant Leases and Security Deposits”) pursuant to which KCPLP will assign, and KCPLLC will assume, all right, title and interest of KCPLP, as landlord or licensor, in and to all Tenant Leases and Security Deposits. Any Security Deposits maintained in the form of a letter of credit shall be delivered to ▇▇▇▇▇ at Closing and KCPLP shall endeavor to cause the reissuance or endorsement of each case, duly executed by such letter of credit for the applicable party; andbenefit of KCPLLC within a reasonable time after Closing;
(pd) An an assignment of Excluded Assets from and assumption agreement in substantially the Company, form attached hereto as Schedule 9(d) (the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.“Assignment and
Appears in 1 contract
Sources: Recapitalization and Reconstitution Agreement (Wells Real Estate Investment Trust Ii Inc)
Closing Deliveries. On Administrative Agent shall have received each of ------------------ the Closing Datefollowing documents, the parties shall makeinstruments and agreements, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power each of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and each Bank and each of which shall, unless otherwise indicated, be dated the followingEffective Date:
(a) The Contribution and Assumption Agreement a Note payable to the order of each Bank (as applicable), each in the form attached hereto as Exhibit Bamount of such Bank's Commitment after giving effect to the Assignment and Acceptance Agreements referenced in the recitals hereto;
(b) The OP Agreement Mortgages duly executed and the Articles;
(c) The Amendment or delivered by Borrower, together with such other evidence of the transfer of OP Units to Contributor assignments, conveyances, amendments, agreements and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebywritings, including, without limitation, UCC-1 financing statements, in form and substance satisfactory to Administrative Agent, pursuant to which Borrower shall grant to Administrative Agent a first and prior Lien, subject only to Permitted Encumbrances, in and to the Unocal Properties;
(c) a copy of the Restated Certificate of Incorporation and all amendments thereto, of Borrower accompanied by a certificate that such copy is true, correct and complete, and dated within ten (10) days of the Effective Date, issued by the appropriate Governmental Authority of the jurisdiction of incorporation of Borrower, and accompanied by a certificate of the Secretary or comparable Authorized Officer of Borrower that such copy is true, correct and complete on the Effective Date;
(d) a copy of the bylaws of Borrower, and all amendments thereto, accompanied by a certificate of the Secretary or comparable Authorized Officer of Borrower that such copy is true, correct and complete as of the date hereof;
(e) certain certificates and other documents issued by the appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested relating to the existence of Borrower and to the effect that Borrower is in good standing with respect to the payment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(f) a certificate of incumbency of all officers of Borrower (to the extent applicablea party to any Loan Paper) who will be authorized to execute or attest to any Loan Paper, grant deeds dated the date hereof, executed by the Secretary or comparable Authorized Officer of Borrower;
(g) copies of resolutions or comparable authorizations approving the First Amendment, the Mortgages and the other Loan Papers executed in connection with the First Amendment and authorizing the transactions contemplated by this First Amendment and the other Loan Papers, duly adopted by the Board of Directors or comparable governing authority of Borrower accompanied by certificates of the Secretary or comparable officer of Borrower that such copies are true and correct copies of resolutions duly adopted at a meeting of or (if transferred directly)permitted by applicable Law and, assignments of ground leasesif required by such Law, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which by the Operating Partnership is required to file its partnership documentation or the recording of deeds Bylaws or other Property Interest transfer charter documents is requiredof Borrower) by the unanimous written consent of the Board of Directors or comparable governing authority of Borrower, and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect as of the date hereof;
(h) an opinion of ▇▇▇▇▇▇ & Hanger, L.L.P., special counsel for Borrower, dated the date hereof, favorably opining as to the enforceability of this First Amendment and each of the other Loan Papers and otherwise in form and substance satisfactory to Administrative Agent and Banks;
(i) [A bargain and sale deed in substantially the form attached an opinion of Loomis, Ewert, Parsley, ▇▇▇▇▇ & Gotting, special Michigan counsel to Administrative Agent, favorably opining as Exhibit F, to such matters as Administrative Agent or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title PoliciesBanks may request;]
(j) A standard owner’s affidavit executed by Contributor such UCC-11 search reports as Administrative Agent shall require, prepared as of a date not more than twenty (20) days prior to the extent necessary to enable the Title Company to issue to the Operating Partnership or its SubsidiaryEffective Date, effective conducted in such jurisdictions and reflecting such names as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)Administrative Agent shall request;
(k) The Operating Partnership a Certificate of Ownership Interests signed by an Authorized Officer of Borrower in the form of Exhibit G attached to the Credit Agreement --------- (with applicable conforming changes relevant to the Unocal Properties and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3Unocal Acquisition);
(l) Any Tenant Estoppelsa copy of each Unocal Acquisition Document and all other material documents, any Ground Lease Estoppels instruments and any other tenant estoppel certificatesagreements executed and/or delivered by Borrower in connection with the Unocal Acquisition Agreement and the closing of the Unocal Acquisition, in each case, together with a certificate from an Authorized Officer of Borrower certifying that (A) such copies are accurate and complete and represent the complete understanding and agreement of the parties with respect to the extent obtained by subject matter thereof, and (B) subject only to the Contributor increase in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership the Borrowing Base and funding in connection therewith and herewith, the Company Unocal Acquisition has been consummated on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy terms set forth in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects)Unocal Acquisition Documents;
(n) Any booksa report or reports in form, records scope and Organizational Documents relating detail acceptable to Contributor that are in Administrative Agent and Banks setting forth the possession results of Contributor a review of the Unocal Properties and other operations, which report(s) shall not reflect the existence of facts or circumstances which would constitute a material violation of any Applicable Environmental Law or which can be obtained through Contributor’s reasonable efforts;
are likely to result in a material liability to any Credit Party, and/or otherwise reveal any conditions or circumstances which would reflect that the representations and warranties contained in Section 9.14 of the Credit Agreement (iafter giving effect to the Unocal Acquisition) All documents reasonably required by a Lender are inaccurate in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyany respect; and
(po) An assignment of Excluded Assets from the Companysuch other documents, the Operating Partnership or a Subsidiaryinstruments, agreements and actions as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablemay reasonably be required by Administrative Agent and each Bank.
Appears in 1 contract
Closing Deliveries. On (a) At the Closing Date, Oglebay and ONCO shall make the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingfollowing deliveries:
(ai) The Contribution stock certificates (or stock powers) properly executed evidencing the transfer of the ONTAC Shares to Newco and Assumption Agreement the transfer of the ETCO Shares to Rouge;
(ii) an assignment of the EXCO Interests to Newco;
(iii) the Preliminary Working Capital Statement referred to in Section 6.6(a);
(iv) the certificate referred to in Section 8.1(a);
(v) resolutions of their respective Boards of Directors or committees thereof, as necessary, certified by the Secretary or Assistant Secretary, authorizing the transactions contemplated by this Agreement;
(vi) a Bill ▇▇ Sale with respect to the mining equipment referred to in Section 6.1;
(vii) a letter from Wyat▇ & ▇o. with regard to the present value of estimated FAS 106 liabilities and the Unfunded Benefit Liabilities that exist with respect to any Plan maintained by ONTAC or any ERISA Affiliate for employees of ONTAC;
(viii) evidence that all consents set forth on Schedule 2.4 have been obtained.
(ix) a release by Oglebay of its rights to receive royalties under the Royalty Arrangements defined in Section 6.2;
(x) instrument(s) sufficient to dismiss pending arbitrations as provided in Section 6.7;
(xi) an opinion of counsel substantially in the form attached hereto as Exhibit BD;
(xii) all of the corporate records of ONTAC in the possession of Oglebay or ONCO and written resignations of all of the officers and directors of ONTAC;
(xiii) all of the corporate records of ETCO in the possession of Oglebay or ONCO;
(xiv) all of the partnership records of EXCO in the possession of Oglebay or ONCO; and
(xv) a release of Pellet Sales Contracts with Stelco, AK Steel, or their predecessors in interest.
(b) At the Closing the Remaining Companies and Newco, as appropriate in accordance with their respective obligations under this Agreement, shall make the following deliveries:
(i) The OP Purchase Price (as required pursuant to Section 1.4) in immediately available United States funds transferred to Oglebay and ONCO. Such amount may be allocated by each party to this Agreement and the Articlesas their respective interests may appear;
(cii) The Amendment or other evidence of the transfer due incorporation and authorization of OP Units to Contributor and by Contributor to its ParticipantsNewco;
(diii) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth certificate referred to in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(28.2(a);
(fiv) The release executed resolutions of their respective Boards of Directors or committees thereof, as necessary, certified by Operating Partnership and the Company in favor of Secretary or Assistant Secretary, authorizing the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit Etransactions contemplated by this Agreement;
(gv) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, an assumption agreement with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)Assumed Liabilities;
(kvi) The Operating Partnership and a release of Oglebay of its obligations under the Company Repurchase Agreement (as hereinafter defined), a release of Oglebay of its obligations under the Mining Leases set forth on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3Schedule 3.4;
(lvii) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, instrument(s) sufficient to dismiss pending arbitrations as provided in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii)6.7;
(mviii) The Operating Partnership and the Company evidence that all consents set forth on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of Schedule 3.4 have been obtained; and
(ix) opinions from respective counsel for each of their respective representations Rouge, ETCO, AK Steel, Stelco, AKS Sub, Stelco Sub and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier dateNewco, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.E.
Appears in 1 contract
Sources: Exit Agreement (Rouge Steel Co)
Closing Deliveries. On Administrative Agent shall have received each of the following documents, instruments and agreements, each of which shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and each Bank and each of which shall, unless otherwise indicated, be dated the Closing Date:
(i) a Note payable to the order of each Bank, each in the parties shall makeamount of such Bank’s Commitment, execute, acknowledge duly executed by Borrower;
(ii) the Mortgages and deliver, or cause Amendments to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required Mortgages to be executed or delivered in connection with on the Closing (collectively the “Closing Documents”) Date pursuant to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement Section 6.1(a), duly executed and the delivered by Borrower and Equity Oil, as applicable, together with such other transactions contemplated to take place in connection therewith. The Closing Documents assignments, conveyances, amendments, agreements and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebywritings, including, without limitation, UCC-1 and only UCC-3 financing statements, in form and substance satisfactory to Administrative Agent, creating first and prior Liens in all Borrowing Base Properties;
(iii) a Parent Pledge Agreement duly executed and delivered by WPC together with (A) to the extent applicablenot previously delivered to Administrative Agent pursuant to the terms of the Existing Credit Agreement, grant deeds certificates evidencing one hundred percent (if transferred directly)100%) of the issued and outstanding Equity of Borrower and Equity Oil, assignments of ground leaseswhich certificates shall be accompanied by stock powers executed in blank, air space leases and space leases, bills of sale, general assignments (B) such financing statements (duly authorized) as Administrative Agent shall request to evidence and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which perfect the Operating Partnership is required Liens granted pursuant to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is requiredsuch Parent Pledge Agreement;
(iiv) [A bargain Facility Guaranties duly executed by WPC and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title PoliciesEquity Oil;]
(jv) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request financing statements (including, without limitation, non-imputation endorsements) or the financing statements referenced in subclauses (ii) such endorsements and (iii) above) in form and substance acceptable to Administrative Agent as Administrative Agent shall specify to fully evidence and perfect all Liens contemplated by the Loan Papers (to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership extent such Liens may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsementsbe perfected by filing a financing statement), all of which shall be filed of record in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-such jurisdictions as Administrative Agent shall require in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)its sole discretion;
(kvi) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of the articles or certificate of incorporation, certificate of organization, or comparable charter documents, and all appropriate corporate resolutions or partnership or limited liability company actions authorizing the executionamendments thereto, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each Credit Party accompanied by a certificate that such copy is true, correct and complete, and dated within ten (10) days of their respective representations and warranties in this Agreement at the Closing Date (except or within such other period as acceptable to Administrative Agent), issued by the appropriate Governmental Authority of the jurisdiction of incorporation of each such Credit Party, and accompanied by a certificate of the Secretary or comparable Authorized Officer of each such Credit Party that such copy is true, correct and complete on the Closing Date;
(vii) a copy of the bylaws, regulations or comparable charter documents, and all amendments thereto, of each Credit Party accompanied by a certificate of the Secretary or comparable Authorized Officer of each such Credit Party that such copy is true, correct and complete as of Closing Date;
(viii) certain certificates and other documents issued by the appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested relating to the extent existence of each Credit Party and to the effect that each such Credit Party is in good standing with respect to the payment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(ix) a certificate of incumbency of all officers of each Credit Party who will be authorized to execute or attest to any representation Loan Paper, dated the Closing Date, executed by the Secretary or warranty speaks as comparable Authorized Officer of an earlier dateeach such Credit Party;
(x) copies of resolutions or comparable authorizations approving the Loan Papers and authorizing the Closing Transactions and the transactions contemplated by this Agreement and the other Loan Papers, in which case it must be duly adopted by the Board of Directors (or comparable authority) of each Credit Party accompanied by certificates of the Secretary or comparable officer of each such Credit Party that such copies are true and correct only as copies of that earlier date and except for such representations and warranties that are qualified resolutions duly adopted at a meeting of or (if permitted by materiality or Material Adverse Effectapplicable Law and, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably if required by a Lender in connection with such Law, by the assumption bylaws or prepayment comparable charter documents of an Existing Loan at each such Credit Party, as applicable) by the unanimous written consent of the Board of Directors (or prior to Closing and (iicomparable authority) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless of each such Existing Loans are repaid at or prior to Closing)Credit Party, as applicable, and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect as of the Closing Date;
(xi) an opinion of (a) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Credit Parties, and (b) with respect to Texas law issues, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, special counsel for the Credit Parties, each dated the Closing Date, favorably opining as to the enforceability of each of the Loan Papers and otherwise in form and substance satisfactory to Administrative Agent and Banks;
(xii) an opinion of special counsel for Administrative Agent in each caseof California, duly executed by Colorado, Louisiana, Michigan, Montana, New Mexico, North Dakota, Oklahoma and Wyoming, each dated the Closing Date, favorably opining as to the enforceability of the applicable partyMortgages and Amendments to Mortgages in each applicable State and otherwise in form and substance satisfactory to Administrative Agent and Banks;
(xiii) a certificate signed by an Authorized Officer of Borrower stating that (a) the representations and warranties contained in this Agreement and the other Loan Papers are true and correct in all respects, and (b) no Default or Event of Default has occurred and is continuing;
(xiv) a Certificate of Ownership Interests signed by an Authorized Officer of Borrower in the form of Exhibit J attached hereto;
(xv) copies of all reports in Borrower’s files (or otherwise reasonably available to Borrower) pertaining to Borrower’s Mineral Interests and operations (after giving effect to the CQ Acquisition), which report(s) shall not reflect the existence of facts or circumstances which would constitute a material violation of any Applicable Environmental Law or which are likely to result in a material liability to any Credit Party;
(xvi) certificates from Borrower’s insurance broker setting forth the insurance maintained by Borrower and stating that such insurance is in full force and effect, and which certificates shall evidence that such insurance complies with the requirements of Section 9.6; and
(pxvii) An assignment a copy of Excluded Assets each CQ Acquisition Document, together with a certificate from an Authorized Officer of Borrower certifying that such copies are accurate and complete and represent the Company, complete understanding and agreement of the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, parties with respect to achieve the distributions contemplated under Section 1.4, if applicablesubject matter thereof.
Appears in 1 contract
Closing Deliveries. On the Closing Date(a) At Closing, the parties Seller shall make, execute, acknowledge and deliver, or shall cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
: (ai) The Contribution all Transfer Documents for the conveyance of the Property. "Transfer Documents" shall mean: (A) a special warranty deed duly executed and Assumption Agreement acknowledged by Seller in the form of Exhibit C attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence hereto, conveying 100% of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth Seller's interest in the Articles or Real Property (the "Deed"); (B) a written statement ▇▇▇▇ of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor Sale in the form of Exhibit D attached hereto as Exhibit E;
hereto, duly executed by Seller; (gC) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental required by the jurisdiction in which the Operating Partnership Property is required located, a properly-completed property transfer tax return or affidavit in form and substance appropriate to file its partnership documentation or such jurisdiction; and (D) counterpart signature pages to the recording of deeds or other Property Interest transfer documents is required;
New Management Agreement, duly executed by Manager. (iii) [A bargain and sale deed an affidavit from Seller in substantially the form of Exhibit E attached as Exhibit Fhereto, or in such form as stating under penalty of perjury, the Seller's United States Taxpayer Identification Number and that Seller is customary in the applicable jurisdiction which the Title Company shall require in order not a foreign person pursuant to issue the Title Policies;]
(jSection 1445(b)(2) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, Code and a comparable affidavit satisfying the withholding requirements imposed by any other relevant jurisdiction; (iii) with respect to Seller's receipt of OP Unit Consideration pursuant to Section 1.2(c): (A) counterpart signature pages to the Property, either admission agreement in the form of Exhibit F attached hereto (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current formthe "LP Admission Agreement"), with such endorsements thereto duly executed by Seller, which evidences (x) the admission of Seller as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), a limited partner in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with (y) that Seller has joined as a tie-in endorsement with respect party to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy agreement of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name limited partnership of the Operating Partnership (or a Subsidiary thereof, as the Operating "OP Partnership may designateAgreement"), subject only and (z) the issuance of such OP Units to Seller; (B) counterpart signature pages to the Permitted Encumbrances redemption rights agreement in the form of Exhibit G attached hereto (collectivelythe "Redemption Rights Agreement"), duly executed by Seller; and (C) a Confidential Purchaser Questionnaire in the form of Exhibit H attached hereto, duly executed by Seller; (iv) such other instruments as are reasonably required by the Title Company for Closing in accordance with the terms hereof. (b) At Closing, Purchaser shall deliver, or shall cause the delivery, the “Title Policies”);
following: (ki) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide counterpart signatures to the other a certified copy Transfer Documents (as applicable) executed by Purchaser; (ii) the balance of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the executionPurchase Price payable in accordance with Section 1.2(d) hereof; (iii) counterpart signature pages to the LP Admission Agreement and Redemption Rights Agreement, delivery and performance duly executed by the Operating Partnership and the Company General Partner; and (if so requested by Contributoriv) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any such other tenant estoppel certificates, in each case, to the extent obtained by the Contributor instruments as are reasonably required for Closing in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableterms hereof.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Closing Deliveries. On At the Closing DateClosing, the parties TDI shall make, execute, acknowledge and deliver, have delivered or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items caused to be delivered at to The Fashion House and the Closing shall be Fashion House Shareholders the following:
(ai) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested resolutions duly adopted by the Company or Board of Directors of TDI authorizing and approving the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute Reverse Share Exchange and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(lii) Any Tenant Estoppelsa certificate of good standing for TDI from the Secretary of State of the State of Colorado, any Ground Lease Estoppels dated not earlier than five days prior to the Closing Date (or such other period of time as The Fashion House may accept);
(iii) written resignations of all officers and directors of TDI in office immediately prior to the Closing, and board resolutions electing the following individuals to the positions with TDI and each Subsidiary listed opposite their names below: John Hanna Chairman of t▇▇ ▇▇▇▇▇; President and CEO Christopher Wyatt Director Joseph McCann Director Eric Richardson Director Steven W. Trager Director Ronald Wittman Treasurer, Ch▇▇▇ ▇▇▇▇▇▇▇▇▇ Officer and Secretary
(iv) a file stamped copy of an amendment to the Articles of Incorporation confirming implementation of the Reverse Split and changing of the corporate name to The Fashion House Holdings, Inc., or such other name as determined by The Fashion House, subject only to the administrative delay necessitated by notice requirements under Rule 10b-7 and the Nasdaq OTC coordinator;
(v) irrevocable instructions to the Transfer Agent authorizing and directing the issuance of a certificate for and in the name of each Fashion House Shareholder representing the number of TDI Shares set forth opposite such Fashion House Shareholder's name on Schedule I attached hereto;
(vi) this Agreement duly executed by TDI;
(vii) all corporate records, agreements, seals and any other tenant estoppel certificates, in each caseinformation reasonably requested by The Fashion House's representatives with respect to TDI, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii)that TDI possesses such materials;
(mviii) proof of filing of the Form 10-QSB for the quarter ended June 30, 2005, with content reasonably acceptable to The Operating Partnership Fashion House;
(ix) a duly signed Officer's Certificate and Secretary's Certificate in a form acceptable to The Fashion House;
(x) a legal opinion of counsel for TDI in a form acceptable to The Fashion House;
(xi) confirmation that all loans and other monetary obligations listed on Schedule 4.19 have either been waived or will be paid in full out of the Company on proceeds of the one hand and Contributor on $325,000 delivered at closing; and
(xii) such other documents as The Fashion House and/or the other hand shall provide to Fashion House Shareholders may reasonably request in connection with the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except transactions contemplated hereby, to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for TDI possesses such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablematerials.
Appears in 1 contract
Sources: Reverse Share Exchange Agreement (Tdi Holding Corp)
Closing Deliveries. On Administrative Agent shall have received each of the following documents, instruments and agreements, each of which shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and Required Banks and each of which shall, unless otherwise indicated, be dated the Closing Date:
(i) a Note payable to the order of each Bank in the amount of such Bank's Commitment, duly executed by Borrower;
(ii) a Restricted Subsidiary Guarantee duly executed by SWAT;
(iii) a Restricted Subsidiary Pledge Agreement duly executed by Borrower together with (A) certificates evidencing one hundred percent of the parties issued and outstanding capital stock of SWAT of every class (all certificates delivered pursuant to this SECTION 6.1(A)(III) shall make, execute, acknowledge and deliver, be duly endorsed or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereofaccompanied by duly executed blank stock powers), and (B) such financing statements executed by Borrower as Administrative Agent shall request to perfect the OP Agreement Liens granted pursuant to such Pledge Agreement;
(iv) a Certificate of Ownership Interests substantially in the form of EXHIBIT H, duly executed and other legal documents delivered by an Authorized Officer of Borrower;
(v) an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President and items required Corporate Counsel for Borrower, favorably opining as to be such matters as Administrative Agent or Required Banks may request;
(vi) an opinion of Gardere & ▇▇▇▇▇, L.L.P., special counsel to Administrative Agent, in form and substance satisfactory to Administrative Agent;
(vii) a Certificate executed or delivered by an Authorized Officer of Borrower stating that (A) the representations and warranties of Borrower contained in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place Loan Papers are true and correct in connection therewith. The Closing Documents all respects, (B) no Default or Event of Default has occurred which is continuing, and other items to be delivered at the Closing shall be the following:
(aC) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend all conditions set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request this SECTION 6.1 and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.SECTION
Appears in 1 contract
Sources: Credit Agreement (Snyder Oil Corp)
Closing Deliveries. On At the Closing DateClosing, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement Pubco and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items Representative Stockholder shall have delivered or caused to be delivered at to BBC and the Closing shall be BBC Shareholders the following:
(ai) The Contribution this Agreement duly executed by Pubco and Assumption Agreement in the form attached hereto as Exhibit BRepresentative Stockholder;
(bii) The OP Agreement letters of resignation from Pubco’s sole officer and the Articles;
(c) The Amendment or other evidence director, with such resignations as to all of the transfer of OP Units offices he currently holds with Pubco to Contributor and by Contributor to its Participants;
(d) Evidence of be effective on the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitationClosing Date, and only to the extent applicable, grant deeds (if transferred directly), assignments confirming that such officer or director has no claim against Pubco in respect of ground leases, air space leases and space leases, bills any outstanding remuneration or fees of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective whatever nature as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(kiii) The Operating Partnership and resolutions duly adopted by the Company on Board of Directors of Pubco approving the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions following events or partnership or limited liability company actions authorizing actions, as applicable:
a. the execution, delivery and performance of this Agreement;
b. the Acquisition and the terms thereof;
c. adoption of bylaws in the form agreed by the Operating Partnership parties;
d. fixing the number of authorized directors on the board of directors at a minimum of one director and a maximum of five directors;
e. the appointment of M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as Chairman of the Board of Directors, and the Company (if so requested by Contributor) and Contributor (if so requested appointment of additional directors as may be appointed by the Operating Partnership Board of Directors from time to time at its sole discretion following the Closing; and
f. the appointment of the following persons as officers of Pubco, effective on the Closing Date, with the titles set forth opposite his or her name (the Company“BBC Officers”): M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Chief Executive Officer, President, Secretary, Chairman of the Board and Interim Chief Financial Officer
(iv) certified articles of incorporation and a certificate of good standing for Pubco from its jurisdiction of incorporation, dated not earlier than five (5) days prior to the Closing Date;
(v) an instruction letter signed by the President of Pubco addressed to Pubco’s transfer agent of record, in a form reasonably acceptable to BBC and consistent with the terms of this Agreement, any related documents instructing the transfer agent to issue stock certificates representing the Pubco Shares to be delivered pursuant to this Agreement registered in the names of the BBC Shareholders as set forth in Annex I and to cancel the documents listed shares held by the Representative Stockholder as set forth in this Section 2.3Annex II;
(lvi) Any Tenant Estoppelsthe Separation Agreement duly executed by Pubco and the Representative Stockholder, any Ground Lease Estoppels and any other tenant estoppel certificatesall exhibits thereto, evidencing the Representative Stockholder’s resignation from all officer and director positions with Pubco and the cancellation of an aggregate of 100,000,000 shares of Pubco Common Stock owned by him in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii)consideration for $175,000;
(mvii) The Operating Partnership A certificate of Standard Registrar and Transfer Co., Inc., Pubco’s transfer agent and registrar, certifying as of the Company on the one hand and Contributor on the other hand shall provide business day prior to the other Acquisition and before taking into consideration the cancellation of Pubco Common Stock as indicated in Section 7.l(a)(vii) hereof, a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as complete list of that earlier date the names and except for such representations and warranties that are qualified addresses of the record owners of all of the outstanding shares of Pubco Common Stock, together with the number of shares of Pubco Common Stock held by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects)each record owner;
(nviii) Any booksa certificate of the Secretary of Pubco, records and Organizational Documents relating dated as of the Closing Date, certifying as to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably the incumbency of officers of Pubco executing this Agreement and all exhibits and schedules hereto and all other documents, instruments and writings required by pursuant to this Agreement (the “Transaction Documents”), (ii) a Lender copy of the Articles of Incorporation and By-Laws of Pubco, as in effect on and as of the Closing Date, and (iii) a copy of the resolutions of the Board of Directors of Pubco authorizing and approving Pubco’s execution, delivery and performance of the Transaction Documents, all matters in connection with the assumption or prepayment of an Existing Loan at or prior to Closing Transaction Documents, and the transactions contemplated thereby;
(iiix) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, a duly executed share cancellation agreement, and all exhibits thereto, by and between Pubco and G▇▇▇ Stockport together with the applicable partystock certificates evidencing his shares, a notarized stock power and an instruction letter authorizing the cancellation of his shares addressed to Pubco’s transfer agent of record;
(x) all corporate records, board minutes and resolutions, tax and financial records, agreements, seals and any other information or documents reasonably requested by BBC’s representatives with respect to Pubco; and
(pxi) An assignment of Excluded Assets from such other documents as BBC and/or the Company, BBC Shareholders may reasonably request in connection with the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions transactions contemplated under Section 1.4, if applicablehereby.
Appears in 1 contract
Closing Deliveries. On (a) At or prior to the Closing, Seller (or other Seller Party as applicable) has delivered or caused to be delivered to Buyer the following:
(i) this Agreement executed by ▇▇▇▇▇▇ and the Owners;
(ii) an Escrow Agreement by and among Buyer, Seller and the Escrow Agent (the “Escrow Agreement”), executed by Seller;
(iii) a bill of sale, assignment and assumption agreement in form and substance acceptable to Buyer (the “Assignment and Assumption Agreement”) and executed by Seller, effecting the assignment to and assumption by Buyer of the Assets and the Assumed Liabilities;
(iv) Domain Name Assignment Agreements in form and substance acceptable to Buyer executed by (A) Seller and the applicable Owner (the “Pre-Closing Domain Name Assignment”) and (B) Seller (the “Closing Domain Name Assignment”);
(v) Payoff Letters from any Person holding Indebtedness of Seller, any other lienholders holding Encumbrances on the Assets and any Person to whom Seller owes any Selling Expenses;
(vi) delivery of all UCC-3 termination statements and all other documents and instruments necessary, if any, to release and discharge all Encumbrances on the Assets;
(vii) certificates of good standing or equivalent, issued by the Secretary of State of the State of Ohio and each other jurisdiction set forth on Schedule 3.1 and dated no more than ten (10) days prior to the Closing Date, reflecting, with respect to the parties shall makeState of Ohio, executethat Seller is validly existing and, acknowledge with respect to the State of Ohio and delivereach such other jurisdiction, or cause that Seller is authorized to be made, executed, acknowledged and delivered, through transact business in such jurisdiction;
(viii) a certificate from an officer of Seller certifying the Power Organizational Documents of Attorney or the Attorney-in-Fact (described in Article 5 hereof)Seller, the OP Agreement resolutions of the Owners and other legal documents governing authority of Seller authorizing the Transactions, and items required to be executed or delivered in connection with the Closing (collectively incumbency and signatures of the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention officers of Seller executing this Agreement and the other transactions contemplated to take place Transaction Documents executed by Seller in connection therewith. The Closing Documents herewith;
(ix) a transition services agreement in form and substance acceptable to Buyer, executed by Seller (the “TSA”);
(x) written evidence satisfactory to Buyer of all consents required to be obtained from certain third parties in connection with the Transactions;
(xi) certificates of title to all Seller-owned Motor Vehicles and such other items instruments and documents that are necessary to transfer the Motor Vehicles, in form and substance acceptable to Buyer;
(xii) a certificate from Seller certifying under penalty of perjury and satisfying each of the requirements of United States Treasury Regulations Section 1.1445-2(b)(2) stating that Seller (or its applicable beneficial owners) is not a “foreign person” as defined in Section 1445(f)(3) of the Code (each, a “FIRPTA Certificate”);
(xiii) real property leases (or assignments thereof) for each location of Seller in form and substance acceptable to Buyer and executed by each applicable lessor (and Seller, as applicable);
(xiv) the binder and certificate of insurance with respect to the Continuum Policy; and
(xv) such other documents, certificates and instruments reasonably necessary to consummate the Transactions.
(b) At the Closing, Buyer has delivered or caused to be delivered at to Seller or, in the Closing shall be case of the delivery in Section 1.6(b)(iii) to the Escrow Agent, the following:
(ai) The Contribution the Closing Cash Payment;
(ii) the Payoff Amounts;
(iii) the Escrow Amount;
(iv) this Agreement executed by ▇▇▇▇▇;
(v) the Escrow Agreement executed by ▇▇▇▇▇;
(vi) the Assignment and Assumption Agreement in the form attached hereto as Exhibit Bexecuted by ▇▇▇▇▇;
(bvii) The OP Agreement and the ArticlesClosing Domain Name Assignment executed by ▇▇▇▇▇;
(cviii) The Amendment or other evidence of the transfer of OP Units to Contributor and TSA executed by Contributor to its Participants▇▇▇▇▇;
(dix) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles real property leases (or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without chargeassignments thereof) delivered under Section 1.6(a)(xiii) executed by ▇▇▇▇▇;
(ex) An affidavit from Contributor (orcertificate of good standing or equivalent, if Contributor is a disregarded entity within issued by the meaning Secretary of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor State of the employees State of Ohio and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
dated no more than ten (g10) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only days prior to the extent applicableClosing Date, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closingreflecting, with respect to the PropertyState of Ohio, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (that Buyer is validly existing and authorized to transact business in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)jurisdiction;
(kxi) The Operating Partnership a certificate from an officer of Buyer certifying the resolutions of the governing authority of Buyer authorizing the Transactions, and the Company on incumbency and signatures of the one hand officers of Buyer executing this Agreement and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance Transaction Documents executed by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender ▇▇▇▇▇ in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyherewith; and
(pxii) An assignment of Excluded Assets from such other documents, certificates and instruments reasonably necessary to consummate the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableTransactions.
Appears in 1 contract
Sources: Asset Purchase Agreement (Quanex Building Products CORP)
Closing Deliveries. On (a) At Closing Seller shall deliver to Purchaser:
(i) a special warranty deed (the Closing Date“Deed”) executed by Seller and acknowledged in the form annexed hereto as Exhibit 2 (and any other instruments necessary to record the Deed);
(ii) the Assignment and Assumption of the Service Contracts (as designated by Purchaser and any permitted replacements or renewals thereof as approved by Purchaser) executed by Seller in the form annexed hereto as Exhibit 3.
(iii) an Assignment and Assumption of Licenses, Permits, Guarantees and Warranties executed by Seller in the parties shall makeform annexed hereto as Exhibit 4;
(iv) if Purchaser elects to assume any of the Service Contracts not terminated by Seller, execute, acknowledge and delivernotice to the service contractors executed by Seller in the form annexed hereto as Exhibit 5;
(v) duplicate originals, or cause if duplicate originals are not available, copies of the Service Contracts which Purchaser elects to be madeassume;
(vi) unless maintained at the Premises, executed(a) all licenses and permits, acknowledged authorizations and deliveredapprovals pertaining to the Premises in Seller’s possession or control (b) the Guarantees and Warranties in Seller’s possession or control; (c) all maintenance and operation files, through manuals, books and records and plans, specifications and drawings relating to the Power Premises in Seller’s possession or control;
(vii) payment of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered any broker’s commission incurred by Seller in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:Closing;
(aviii) The Contribution any and Assumption Agreement all other deliveries required pursuant to this Contract;
(ix) duly executed certificate of Seller in the applicable form set forth in Treasury Regulations §1.1445-2(b)(2) and any additional certificates required under state or local law;
(x) the transfer tax return(s) executed by Seller;
(xi) a ▇▇▇▇ of Sale, executed by Seller in the form attached hereto as of Exhibit B6 annexed hereto;
(xii) keys, combinations and codes to all locks and security devices to the Premises;
(xiii) evidence of Seller’s organizational authority reasonably satisfactory to the Title Company;
(xiv) any CCR estoppel certificate(s) in accordance with Section 6 above;
(xv) Letters addressed to the architects, engineers, surveyors and other consultants and professionals who prepared any of the Plans authorizing such persons to deliver to Purchaser upon request any of such documents in their possession or control; provided that Seller makes no representation or warranty that any such person shall be willing to provide any such documents to Purchaser or whether or not any charge shall be levied by such person if provided;
(xvi) Execution and delivery of the Option Agreement; and
(xvii) Copies of the Condominium Documents, or to the extent not previously executed by Seller, execution and delivery thereof.
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units At Closing Purchaser shall deliver to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;Seller:
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as balance of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (Purchase Price as provided in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)Section 3 hereof;
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or Assignment and Assumption of the Existing Loan Indemnity Agreement Service Contracts executed by Purchaser in substantially the form attached annexed hereto as Exhibit C 3;
(unless such Existing Loans are repaid at iii) the Assignment and Assumption of the Service Contracts (as designated by Purchaser and any permitted replacements or prior to Closing), renewals thereof as applicable, in each case, duly approved by Purchaser) executed by Seller in the applicable partyform annexed hereto as Exhibit 3;
(iv) notice to the service contractors in the form annexed hereto executed by Purchaser in the form annexed hereto as Exhibit 5;
(v) transfer tax return(s) executed by Purchaser;
(vi) evidence of Purchaser’s organizational authority reasonably satisfactory to the Title Company;
(vii) execution and delivery of the Option Agreement; and
(pviii) An assignment to the extent reasonably required by Seller, execution of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableappropriate Condominium Documents.
Appears in 1 contract
Sources: Contract of Sale (Gsi Commerce Inc)
Closing Deliveries. On (a) At the Closing, Seller shall deliver to Acquirer the following (the "Seller Closing Deliveries"):
(i) certificate(s) representing the Membership Interests, duly endorsed in blank or accompanied by stock powers duly executed in blank by the registered holder or holders thereof, as of the Closing Date and bearing any required legend;
(ii) copies of all documents evidencing the ownership by Pacific LLC International SA de CV of the Property;
(iii) the articles of incorporation of Pacific LLC, its shareholder register, and all minutes and resolutions of its board of directors;
(iv) the Operating Agreement of Pacific LLC, certified by the Secretary of Pacific LLC as of the Closing Date;
(v) resolutions of the board of directors and unanimous consent of the members of Pacific LLC approving this Agreement and the transactions contemplated hereby, certified by the Secretary of Pacific LLC as of the Closing Date;
(vi) an incumbency certificate, dated as of the Closing Date, in form reasonably satisfactory to Acquirer, executed by the parties Secretary of Pacific LLC;
(vii) copies of an appraisal report of the Property completed in April 2003 by the registered public officer in the State of Guerrero; and
(viii) ▇ ▇▇▇▇l opinion from Baker and McKenzie in the form ▇▇▇▇▇hed he▇▇▇▇ ▇▇ EXHIBIT 7 setting forth standard opinions for a transaction of this type including but not limited to: (i) marketable title to the Property, free and clear of any liens, restrictions or encumbrances of any kind, except Permitted Encumbrances; (ii) valid existence of Seller, Pacific LLC and Pacific S.A.; (iii) legal authority of Seller to enter into this Agreement, (iv) valid existence of the Lease, and (v) no pending or threatened litigation against Seller, Pacific LLC or Pacific S.A., and
(b) At the Closing, Acquirer shall makedeliver to Seller the following (the "Acquirer Closing Deliveries"):
(i) an Amended and Restated Advisory Agreement between Acquirer and Advisor acceptable to Seller, executein its sole and absolute discretion, acknowledge and deliverpursuant to which a non-affiliated designee of Seller shall either be appointed managing member of the Advisor or, or cause to if such appointment can not be made, executedAcquirer shall engage a replacement Advisor pursuant to a new Advisory Agreement acceptable to the Seller, acknowledged in it sole and deliveredabsolute discretion;
(ii) certificates(s) representing 65,000 shares of Series B Convertible Preferred Stock of the Acquirer, through along with appropriate stock powers and documents required for transfer, duly executed by the Power President and Secretary of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with Acquirer as of the Closing Date and bearing any required legend;
(collectively iii) resolutions of the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention board of directors of Acquirer approving this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at hereby, certified by the Secretary of Acquirer as of the Closing shall be the following:Date;
(aiv) The Contribution and Assumption Agreement an incumbency certificate, dated as of the Closing Date, in form reasonably satisfactory to Seller, executed by the Secretary of Acquirer;
(v) a fully executed Pledge Agreement, in the form attached hereto as Exhibit B;EXHIBIT 1
(bvi) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stocka fully executed Registration Rights Agreement, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit EEXHIBIT 2;
(gvii) A copy a fully executed Series B Preferred Stock Certificate of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements)Designations, in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless EXHIBIT 3, with evidence satisfactory to Seller that such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by Certificate of Designations has been filed with the applicable partySecretary of State of the State of Maryland; and
(pviii) An assignment of Excluded Assets from a fully executed Consulting Agreement with Razor Capital Consultants as set forth in the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.Consulting Agreement attached hereto Exhibit 5
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Healthcare Investors of America Inc)
Closing Deliveries. On JV Corp shall have received at or prior to the Closing Datesuch documents, the parties shall make, execute, acknowledge and deliver, instruments or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered certificates as JV Corp may reasonably request in connection with the Closing (collectively consummation of the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingTransactions, including, without limitation:
(a1) The Contribution a fully-executed assignment, in form and Assumption Agreement in substance reasonably satisfactory to JV Corp, effecting the form attached hereto as Exhibit Btransfer of the Interests to JV Corp;
(b2) The OP Agreement certificates as to the legal existence and good standing of the ArticlesCompany and each Subsidiary, issued by such entities’ states of organization and each state where the Company or any Subsidiary is qualified to do business;
(c3) The Amendment or other evidence a certified copy of the transfer Articles of OP Units to Contributor Incorporation of FMB and by Contributor to its Participantsall amendments and supplements thereto;
(d4) Evidence a copy of the DTC Registered REIT Bylaws of FMB and all amendments and supplements thereto;
(5) copies of all consents, approvals, licenses and other authorizations required to be obtained by FMB and the Company by this Agreement;
(6) fully-executed employment agreements with J▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, S▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and B▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, each in form and substance reasonably satisfactory to JV Corp and the employee;
(7) a fully-executed real property lease for the Company’s offices at 3▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “New Lease”), in form and substance reasonably satisfactory to JV Corp;
(8) the Escrow Agreement, executed by FMB, in form and substance reasonably satisfactory to JV Corp;
(9) a stockholders agreement among JV Corp, FMB and Holdco with respect to the JV Corp Common Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about provide, among other things, for certain restrictions on transferability the transfer of JV Corp Common Stock, and which may provide, among other things, for (i) the right for Holdco or an Affiliate of Holdco to purchase all of FMB’s shares of JV Corp Common Stock for fair value upon a stockholder as set forth Change in Control of FMB and (ii) the pledge of the JV Corp Common Stock issued in the Articles on request name of FMB to secure any indemnity obligations of FMB pursuant to the provisions of Article VI hereof in excess of (A) the Escrow Funds (less any amounts released to FMB) (the “Stockholders Agreement”) and without charge(B) the set off right described in the last paragraph of Section 6.4 of this Agreement, executed by FMB, in form and substance reasonably satisfactory to JV Corp;
(e10) An affidavit from Contributor (ora transition services agreement allowing for the continuation and separation of computer systems and information technologies, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii)and payroll services and benefits, the sole owner transfer of Contributor certain phone numbers from FMB to the Company, and certain other actions (the “Transition Services Agreement”) executed by FMB, in form and substance reasonably satisfactory to JV Corp;
(11) an agreement between the Company and First Mariner Bank with respect to the employment or engagement of, and the provision of mortgage origination services by, certain individuals specified therein, for a period of up to twelve (12) months, for consideration of $60,000.00 per month (the “Mortgage Services Agreement”) executed by First Mariner Bank, in form and substance reasonably satisfactory to JV Corp;
(12) a trademark license agreement executed by FMB, in form and substance reasonably satisfactory to JV Corp, with respect to FMB’s marks “Mariner Finance” and “Mariner Finance and Design”, pursuant, respectively, to Trademark Registration Numbers 3,521,490 and 3,521,489, as more specifically described in such purposes) of non-foreign status satisfying trademark license agreement (the requirements of Treasury Regulations section 1.1445-2(b)(2“Trademark License Agreement”);
(f13) The release if necessary, executed by Operating Partnership assignments transferring all right, title and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor interest to any Intellectual Property owned or which can be obtained through Contributor’s reasonable efforts which are reasonably requested used by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds Subsidiaries or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached proprietary rights as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed required by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents in form and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, substance reasonably satisfactory to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyJV Corp; and
(p14) An assignment a copy of Excluded Assets from the CompanyTax Opinion (as defined in Section 4.2(i)); provided, the Operating Partnership or a Subsidiaryhowever, as applicablethat, in favor providing a copy of Contributorthe Tax Opinion, FMB makes no express or implied representation or warranty to achieve the distributions contemplated under Section 1.4, if applicableany Party with respect to any matter set forth therein.
Appears in 1 contract
Sources: Contribution and Joint Venture Agreement (First Mariner Bancorp)
Closing Deliveries. On Administrative Agent received each of the following documents, instruments and agreements, in such counterparts as are acceptable to Administrative Agent and each Bank and each of which is, unless otherwise indicated, dated the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(ai) The Contribution and Assumption Agreement a Note payable to the order of each Bank, each in the form attached hereto as Exhibit Bamount of such Bank's Commitment, duly executed by Borrower;
(bii) The OP the Amended and Restated Pledge Agreement duly executed and delivered by Borrower together with (A) certificates of interests evidencing all of the Articlesoutstanding membership interests of Spanish Peaks owned by Borrower, duly endorsed for transfer to Administrative Agent, or such other duly executed assignments of such membership interests as are acceptable to Administrative Agent, Banks or their counsel, and (B) such UCC-1 financing statements and UCC-3 amendments and assignments executed by Borrower and Existing Bank, as Administrative Agent shall request to confirm, evidence and perfect the Liens granted pursuant to such Amended and Restated Pledge Agreement;
(ciii) The Amendment or the Assignments and Amendments to Mortgages duly executed and delivered by Borrower and Existing Bank together with such other evidence of the transfer of OP Units to Contributor assignments, conveyances, amendments, agreements and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebywritings, including, without limitation, UCC-3 amendments and only assignments, in form and substance satisfactory to Administrative Agent, to properly assign and convey to Administrative Agent the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is requiredExisting Mortgages;
(iiv) [A bargain the Mortgages to be executed on the Closing Date pursuant to Section 6.1, duly executed and sale deed in substantially the form attached as Exhibit Fdelivered by Borrower, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), together with such endorsements thereto as the Operating Partnership may reasonably request (other assignments, conveyances, amendments, agreements and other writings, including, without limitation, non-imputation endorsementsUCC-1 financing statements in form and substance satisfactory to Administrative Agent;
(v) or a Certificate of Ownership Interests substantially in the form of Exhibit I, duly executed and delivered by an Authorized Officer of Borrower;
(iivi) such endorsements an opinion of Morris, Laing, Evan▇, ▇▇▇▇▇ & ▇enn▇▇▇, counsel for Borrower, in form and substance satisfactory to Administrative Agent;
(vii) an opinion of Thom▇▇▇▇ & ▇night, P.C., special Delaware corporate counsel for Borrower, in form and substance satisfactory to Administrative Agent;
(viii) an opinion of Prui▇▇, ▇▇sh▇▇ & ▇ach▇▇▇▇, ▇▇ecial Utah counsel for Borrower, favorably opining as to the currently held owner’s or leasehold policy enforceability of title insurance the Mortgages in Utah and otherwise in form and substance satisfactory to Administrative Agent;
(ix) an opinion of Bjor▇, ▇▇▇▇▇▇▇ & ▇ani▇▇▇▇▇, ▇.C., special Colorado counsel for the Property Borrower, favorably opining as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the enforceability of the Mortgages in Colorado and otherwise in form and substance satisfactory to Administrative Agent;
(x) a certificate signed by an amount reasonably acceptable to Authorized Officer of Borrower stating that (a) the Operating Partnershiprepresentations and warranties contained in this Agreement and the other Loan Documents are true and correct in all respects, and (b) no Default or Event of Default has occurred and is continuing, and (c) all conditions set forth in this Section 7.1 and Section 7.2 have been satisfied;
(xi) a copy of each Merger Document, together with a tie-in endorsement certificate executed by an Authorized Officer of Borrower certifying that such copies are accurate and complete and represent the complete understanding and agreement of the parties with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy the subject matter thereof;
(xii) copies of title insurance, the Merger Certificate filed with the Kansas and levels Delaware Secretaries of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title State (as applicable) to all real property and improvements comprising the Property ), together with such certificates, affidavits or other instruments suitable for recording same in the name applicable counties and offices in Colorado, Kansas, Texas and Utah, certifying or otherwise evidencing that such copies are accurate and complete copies of the Operating Partnership (or a Subsidiary thereof, Merger Certificate as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)so filed;
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.
Appears in 1 contract
Closing Deliveries. On Administrative Agent shall have received each of the following documents, instruments and agreements, each of which shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and each Bank and each of which shall, unless otherwise indicated, be dated the Closing Date:
(i) a Note payable to the order of each Bank, each in the parties shall makeamount of such Bank’s Commitment, execute, acknowledge duly executed by Borrower;
(ii) the Mortgages and deliver, or cause Amendments to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required Mortgages to be executed or delivered in connection with on the Closing (collectively the “Closing Documents”) Date pursuant to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement Section 6.1(a), duly executed and the delivered by Borrower and Equity Oil, as applicable, together with such other transactions contemplated to take place in connection therewith. The Closing Documents assignments, conveyances, amendments, agreements and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebywritings, including, without limitation, UCC-1 and only UCC-3 financing statements, in form and substance satisfactory to Administrative Agent, creating first and prior Liens in the Required Reserve Value of the Borrowing Base Properties;
(iii) a Parent Pledge Agreement duly executed and delivered by WPC together with (A) to the extent applicablenot previously delivered to Administrative Agent pursuant to the terms of the Existing Credit Agreement, grant deeds certificates evidencing one hundred percent (if transferred directly)100%) of the issued and outstanding Equity of Borrower and Equity Oil, assignments of ground leaseswhich certificates shall be accompanied by stock powers executed in blank, air space leases and space leases, bills of sale, general assignments (B) such financing statements (duly authorized) as Administrative Agent shall request to evidence and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which perfect the Operating Partnership is required Liens granted pursuant to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is requiredsuch Parent Pledge Agreement;
(iiv) [A bargain Facility Guaranties duly executed by WPC and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title PoliciesEquity Oil;]
(jv) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request financing statements (including, without limitation, non-imputation endorsements) or the financing statements referenced in subclauses (ii) such endorsements and (iii) above) in form and substance acceptable to Administrative Agent as Administrative Agent shall specify to fully evidence and perfect all Liens contemplated by the Loan Papers (to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership extent such Liens may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsementsbe perfected by filing a financing statement), all of which shall be filed of record in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-such jurisdictions as Administrative Agent shall require in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)its sole discretion;
(kvi) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of the articles or certificate of incorporation, certificate of organization, or comparable charter documents, and all appropriate corporate resolutions or partnership or limited liability company actions authorizing the executionamendments thereto, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each Credit Party accompanied by a certificate that such copy is true, correct and complete, and dated within twenty (20) days of their respective representations and warranties in this Agreement at the Closing Date (except or within such other period as acceptable to Administrative Agent), issued by the appropriate Governmental Authority of the jurisdiction of incorporation of each such Credit Party, and accompanied by a certificate of the Secretary or comparable Authorized Officer of each such Credit Party that such copy is true, correct and complete on the Closing Date;
(vii) a copy of the bylaws, regulations or comparable charter documents, and all amendments thereto, of each Credit Party accompanied by a certificate of the Secretary or comparable Authorized Officer of each such Credit Party that such copy is true, correct and complete as of Closing Date;
(viii) certain certificates and other documents issued by the appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested relating to the extent existence of each Credit Party and to the effect that each such Credit Party is in good standing with respect to the payment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(ix) a certificate of incumbency of all officers of each Credit Party who will be authorized to execute or attest to any representation Loan Paper, dated the Closing Date, executed by the Secretary or warranty speaks as comparable Authorized Officer of an earlier dateeach such Credit Party;
(x) copies of resolutions or comparable authorizations approving the Loan Papers and authorizing the Closing Transactions and the transactions contemplated by this Agreement and the other Loan Papers, in which case it must be duly adopted by the Board of Directors (or comparable authority) of each Credit Party accompanied by certificates of the Secretary or comparable officer of each such Credit Party that such copies are true and correct only as copies of that earlier date and except for such representations and warranties that are qualified resolutions duly adopted at a meeting of or (if permitted by materiality or Material Adverse Effectapplicable Law and, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably if required by a Lender in connection with such Law, by the assumption bylaws or prepayment comparable charter documents of an Existing Loan at each such Credit Party, as applicable) by the unanimous written consent of the Board of Directors (or prior to Closing and (iicomparable authority) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless of each such Existing Loans are repaid at or prior to Closing)Credit Party, as applicable, and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect as of the Closing Date;
(xi) an opinion of (a) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Credit Parties, and (b) with respect to Colorado law issues, ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel of Borrower, each dated the Closing Date, and in form and substance satisfactory to Administrative Agent and Banks;
(xii) an opinion of special counsel for Administrative Agent in each caseof California, duly executed by Colorado, Louisiana, Michigan, Montana, New Mexico, North Dakota, Oklahoma and Wyoming, each dated the Closing Date, favorably opining as to the enforceability of the applicable partyMortgages and Amendments to Mortgages in each applicable State and otherwise in form and substance satisfactory to Administrative Agent and Banks;
(xiii) a certificate signed by an Authorized Officer of Borrower stating that (a) the representations and warranties contained in this Agreement and the other Loan Papers are true and correct in all respects, and (b) no Default or Event of Default has occurred and is continuing;
(xiv) a Certificate of Ownership Interests signed by an Authorized Officer of Borrower in the form of Exhibit J attached hereto;
(xv) copies of all reports in Borrower’s files (or otherwise reasonably available to Borrower) pertaining to Borrower’s Mineral Interests and operations, which report(s) shall not reflect the existence of facts or circumstances which would constitute a material violation of any Applicable Environmental Law or which are likely to result in a material liability to any Credit Party;
(xvi) certificates from Borrower’s insurance broker setting forth the insurance maintained by Borrower and stating that such insurance is in full force and effect, and which certificates shall evidence that such insurance complies with the requirements of Section 9.6; and
(pxvii) An assignment to the extent not previously provided, a copy of Excluded Assets each Celero ▇▇▇▇▇▇ Acquisition Document, together with a certificate from an Authorized Officer of Borrower certifying that such copies are accurate and complete and represent the Company, complete understanding and agreement of the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, parties with respect to achieve the distributions contemplated under Section 1.4, if applicablesubject matter thereof.
Appears in 1 contract
Closing Deliveries. On the Closing Date, the parties shall make, execute, acknowledge and deliver, At or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection conjunction with the Closing (collectively the “Closing Documents”) to which it is a Closing, each party or for which it is otherwise responsible that are shall execute and deliver all documents reasonably necessary to carry out effect and complete the intention Closing. As part of this Agreement the Closing, Seller shall execute and the other transactions contemplated deliver to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingPurchaser:
(ai) The Contribution and Assumption Agreement in a special warranty deed (the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii“Deed”), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release properly executed by Operating Partnership Seller and witnessed and notarized for recording, conveying fee simple title to the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through ContributorReal Property insured by Escrow Agent at Escrow Agent’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directlystandard rates, free and clear of all Liens (liens, restrictions, encumbrances, easements, tenancies, contracts and other than matters except for the Permitted EncumbrancesExceptions (as defined in Section 7 below). The Deed shall contain the legal description of the Property, as reflected on the Title Commitment;
(ii) an assignment and b▇▇▇ of sale conveying any and all Real Property that is or might be considered personal property;
(iii) evidence of termination of any management agreement for the Property and/or any service contracts which Purchaser does not elect to assume;
(iv) a quitclaim deed properly executed by Seller and witnessed and notarized for recording, which quitclaim deed shall contain the legal description of the Property, as reflected on the Survey;
(v) a certificate (“Seller’s Closing Certificate”), dated as of the date of Closing and duly executed by Seller stating that the representations and warranties of Seller contained in this Contract are true and correct in all material respects as of the date of Closing;
(vi) an owner’s title affidavit and indemnity in form and substance satisfactory to Escrow Agent (in its capacity as the title insurance company insuring Purchaser’s fee simple title to the Real Property) (the “Owner’s Affidavit”), however, Purchaser acknowledges that the deletion of the standard survey exception will require delivery by Purchaser of an ALTA survey to the title insurance company;
(vii) an affidavit, in form and substance satisfactory to Purchaser, stating that Seller is not a “foreign person,” as referred to and defined in Internal Revenue Code Sections 1445(f)(3) and effectuate 7701(a)(30), and stating Seller’s address and United States taxpayer identification number;
(viii) Intentionally Omitted; and
(ix) such documents, agreements and certificates as Escrow Agent may reasonably require in order to consummate the transactions contemplated herebysale of the Property in accordance with this Contract, including, without limitation, and only instruments reasonably satisfactory to Escrow Agent reflecting the extent applicable, grant deeds (if transferred directly), assignments proper authority of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which Seller to consummate the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed transactions contemplated by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableContract.
Appears in 1 contract
Sources: Contract for the Purchase of Real Estate (Lincoln Educational Services Corp)
Closing Deliveries. On (a) At the Closing, Atlas shall deliver, cause to be delivered or pay the following, as applicable:
(i) the Merger Consideration as adjusted by the Adjustment Amount (less the Escrowed Units and less the Allocated Administrative Portion) to the holders of the Titan Class A Units pursuant to Section 2.1; provided that any Cash Consideration to be paid to the holders of the Titan Class A Units pursuant to this Section 1.3(a)(i) shall be paid via wire transfer in immediately available funds to accounts designated by each such holder or Representative prior to Closing;
(ii) the Escrowed Units to the Escrow Agent pursuant to the Escrow Agreement and the Allocated Administrative Portion to Representative to be paid via wire transfer in immediately available funds to an account designated by Representative prior to Closing;
(iii) the Escrow Agreement executed by Atlas and the Escrow Agent in the form of Annex C-1 attached hereto (the “Escrow Agreement”);
(iv) a certificate executed by an officer of Atlas to Representative, dated as of the Closing Date, certifying that the parties conditions set forth in Sections 7.3(a) and (b) have been satisfied;
(v) (A) a statement from Atlas’s transfer agent for the Atlas Common Units included in the Merger Consideration (less the Atlas Common Units that are included in the Escrowed Units) to the holders of the Titan Class A Units, evidencing a book entry position in the name of the holders of the Titan Class A Units for the Merger Consideration (less the Atlas Common Units that are included in the Escrowed Units, the Cash Consideration and the Atlas Preferred Units), free and clear of any Encumbrances, other than transfer restrictions under the Atlas Partnership Agreement and applicable federal and state securities laws and (B) a certificate or certificates representing the Atlas Preferred Units (less the Atlas Preferred Units that are included in the Escrowed Units) and meeting the requirements of the Atlas Partnership Agreement, free and clear of any Encumbrances, other than transfer restrictions under the Atlas Partnership Agreement and applicable federal and state securities laws;
(vi) a legal opinion of Ledgewood to the holders of Titan Class A Units in the form of Annex C attached hereto, dated as of the Closing Date;
(vii) the Registration Rights Agreement to Riverstone, executed by Atlas in the form of Annex D attached hereto (the “Registration Rights Agreement”); and
(viii) the First Amendment to the Limited Partnership Agreement of Atlas to the holders of the Titan Class A Units executed by Atlas Resource Partners GP, LLC, in the form of Annex F attached hereto, which shall makebe modified to effect the changes described in Annex F attached hereto (the “First Amendment to Atlas LPA”).
(b) At the Closing, execute, acknowledge and Titan shall deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required following to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingAtlas:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain a certificate executed by an executive officer of Titan certifying that the conditions set forth in Sections 7.2(a) and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies(b) have been satisfied;]
(jii) A standard owner’s affidavit a certificate executed by Contributor to an executive officer of Titan setting forth the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy the amount of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements all distributions to the currently held owner’s holders of Titan Class A Units made by Titan on or leasehold policy of title insurance for after the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” Effective Date and co-insurance endorsements), in either event with coverage for the Property equal prior to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release amount of all contributions to Titan made by or on behalf of its members on or after the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or Effective Date and prior to the Closing), as applicable, in each case, duly executed by the applicable party; and
(piii) An assignment of Excluded Assets from the Companycertificate contemplated by Section 6.7(b).
(c) At the Closing, Representative shall execute and deliver to Atlas and the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve Escrow Agent the distributions contemplated under Section 1.4, if applicableEscrow Agreement.
Appears in 1 contract
Closing Deliveries. On At the Closing DateClosing, subject to the parties shall maketerms and conditions set forth herein, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection simultaneously with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingParties’ deliveries hereunder:
(a) The Contribution Seller shall deliver to Buyer:
(i) Required Transfer Documentation, executed by Seller;
(ii) all notices required to be delivered to DTC or any other holder of a global note or entity that maintains the book-entry registration system for the Real Estate Securities, executed by Seller;
(iii) For each Real Estate Security in physical form, the original certificate or note evidencing such Real Estate Security and/or attached or accompanying transfer powers, executed by Seller;
(iv) certificates representing the Class P and Class IO Regular Interests of ACGS LLC and/or attached or accompanying transfer powers, executed by ACGS LLC;
(v) the REMIC Administrator Assignment and Assumption Agreement, executed by Seller;
(vi) evidence that the Subordinate Participation Agreement dated March 2, 2004, relating to First Union Commercial Mortgage Securities, Inc., Series 2002-C1 has been terminated;
(vii) written notice to Structured Assets Securities Corporation II pursuant to the CMBS Document required by LB-UBS 2004-C1 and LB-UBS 2005-CI, and written waiver by L▇▇▇▇▇ Brothers Inc. and UBS Securities LLC of the 10 day notice required under the side letters relating to LB-UBS 2004-C1 and LB-UBS 2005-C1;
(viii) evidence that the amendment to the REMIC Agreement in the form attached hereto agreed to by the Buyer and Seller providing for the certification of the Class P and Class IO Regular Interests and the Residual Interest (as Exhibit Bsuch terms are defined in the REMIC Agreement) has been executed and delivered;
(ix) a legal opinion from counsel to Seller that the certificates representing the Class P and Class IO Regular Interests have been validly issued and are entitled to the benefits of the REMIC Agreement and the ACGS LLC sale and servicing agreement;
(x) the FIRPTA Certificate, executed by Seller;
(xi) subject to Section 2.6(a) below with respect to the ACGS Consent, evidence that all other Seller Required Consents have been obtained.
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units Buyer shall deliver to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;Seller:
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor Purchase Price via wire transfer to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (iaccount(s) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or specified by Seller;
(ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (includingany Required Transfer Documentation, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyBuyer; and
(piii) An assignment of Excluded Assets from the CompanyThe REMIC Administrator Assignment and Assumption Agreement, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableexecuted by Buyer.
Appears in 1 contract
Sources: Real Estate Securities Purchase Agreement (Allied Capital Corp)
Closing Deliveries. On (a) At the Closing DateStockVal Option Closing, the parties Sellers shall make, execute, acknowledge and deliverdeliver to Purchaser, or cause in the case of clause (iv) below, make available to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingPurchaser:
(ai) The Contribution general bills of sale and Assumption Agreement assignment, in form and substance reasonably satisfactory to Purchaser, with respect to the form attached hereto as Exhibit B;
StockVal Assets (bother than real estate) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable Purchaser so as to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directlyconvey to Purchaser good title, free and clear of all Liens (other than Permitted Liens), to all of Sellers’right, title and interest in and to the Permitted EncumbrancesStockVal Assets, each executed by the Sellers;
(ii) special or limited warranty deeds and effectuate owner’s title insurance policy commitments, each in form and substance reasonably satisfactory to Purchaser, with respect to any owned real property used in the transactions contemplated herebyStockVal Business;
(iii) an assignment and assumption of leases, includingsecurity deposits and prepaid rents assigning to Purchaser all of Sellers’right, without limitationtitle and interest in and to leased real property used in the StockVal Business and all security deposits and prepaid rents thereunder;
(iv) all of Sellers’books and records, customer files and related business records pertaining to the StockVal Assets, the originals of all contracts included in the StockVal Assets, in Sellers’possession, the originals of all permits and warranties, and only copies of all maintenance records and operating manuals in Sellers’possession pertaining to the extent applicablepersonal property or any portion of their respective owned or leased real property used in the StockVal Business;
(v) a certificate of non-foreign status relating to the StockVal Business in accordance with Section 1445 of the Code, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings similar State required documents requested by Purchaser or in respect of which there is Sellers’Knowledge; and
(vi) all other documents, certificates, instruments or writings reasonably requested by Purchaser in connection with any applicable governmental jurisdiction in which purchase of the Operating Partnership is required StockVal Assets pursuant to file its partnership documentation Sections 10.1 or 10.2 hereof.
(b) At the recording of deeds or other Property Interest transfer documents is required;StockVal Option Closing, Purchaser shall deliver to Bridge:
(i) [A bargain and sale deed the StockVal Exercise Price by wire transfer of immediately available funds to an account or accounts designated in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed writing by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partyBridge; and
(pii) An an assumption agreement in form and substance reasonably acceptable to Bridge, providing for the assignment by Sellers and the assumption by Purchaser of Excluded Assets from the Company, StockVal Designated Contracts Purchaser has elected to assume and have assigned to it or Purchaser’s Designee pursuant to the Operating Partnership or a Subsidiary, as applicable, in favor terms of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablethis Agreement.
Appears in 1 contract
Closing Deliveries. On 8.1 At or prior to the Closing Date, the parties Closing:
8.1.1 Seller shall make, execute, acknowledge and deliverdeliver to Purchaser in respect of the Property bargain and sale deeds without covenants against grantor’s acts, in the form attached hereto as Exhibit M and made a part hereof (the “Deeds”).
8.1.2 Seller shall execute, acknowledge and deliver to Purchaser an assignment of all of Seller’s right, title and interest as landlord or cause otherwise under each of the Space Leases in respect of the Property, and of any security deposits required thereunder to be made, executed, acknowledged and delivered, through held by Seller on the Power date of Attorney or the Attorney-in-Fact Closing (described in Article 5 hereofunless Seller elects to credit any of such security deposits to the Purchase Price), in the OP Agreement form attached hereto as Exhibit N and other legal made a part hereof (the “Assignment of Space Leases”), and shall deliver to Purchaser (a) executed originals or copies (if Seller does not have originals in its possession), of each of such Space Leases.
8.1.3 Seller shall execute and deliver to Purchaser notices to the Space Lessees under the Space Leases advising them of the sale of the Property in the form attached hereto as Exhibit O and made a part hereof.
8.1.4 Seller shall execute, acknowledge and deliver to Purchaser an omnibus assignment (the “Omnibus Assignment”), in the form attached hereto as Exhibit P and made a part hereof conveying and transferring to Purchaser all right, title and interest of Seller, if any, in and to all Personal Property, Improvements, Permits, Warranties, Intangible Personal Property, Plans and Leasing Brokerage Agreements relating to the Property and Plans.
8.1.5 To the extent in Seller’s possession or control, Seller shall deliver to Purchaser (a) all keys, access cards and security codes to all portions of the Property and the Building, (b) all presently effective warranties or guaranties from any contractors, subcontractors, suppliers, manufacturers, servicemen or materialmen in connection with any of the Personal Property or any construction, renovation, repairs or alterations of the Units, the Improvements or any tenant improvements (collectively, the “Warranties”), and (c) copies of all as-built plans and specifications for the Units (the “Plans”).
8.1.6 Seller shall deliver to Purchaser a certificate, duly executed and acknowledged by Seller, in accordance with Section 1445 of the Code (a “FIRPTA Certificate”).
8.1.7 Seller shall deliver to Purchaser limited liability company resolutions of Seller and consents of its members in customary form reasonably satisfactory to the Title Company, authorizing the transaction contemplated herein and the execution and delivery of the documents and items required to be executed and delivered hereunder.
8.1.8 Seller shall deliver to Purchaser a certificate of Seller, dated as of the Closing, certifying to the fulfillment of the conditions set forth in Section 9.2.2 hereof (the “Bring Down Certificate”).
8.1.9 (a) Seller shall after the date hereof request and use commercially reasonable efforts to obtain from each Space Lessee an estoppel (“Estoppel”) which shall be either (i) in the form attached hereto as Exhibit Q and made a part hereof or delivered (ii) in the event any Space Lease provides for the form of Estoppel that the Space Lessee thereunder shall be required to deliver to the landlord under such Space Lease or set(s) forth the matters to be contained in such an Estoppel in connection with a sale and/or ground lease and/or mortgaging of all or any part of the Closing Property, in such form or containing those matters required to be addressed by such Space Lessee. Seller shall deliver copies of each Estoppel to Purchaser for its review promptly following receipt thereof. Notwithstanding the foregoing, other than the Citibank Estoppel (collectively as hereinafter defined), the obtaining and delivery of Estoppels shall not be a condition to Purchaser’s obligation to close hereunder. On or before the second (2nd) Business Day prior to the Closing, as a condition to Purchaser’s obligation to close, Purchaser shall have received an Estoppel from Citigroup, Inc. (“Citibank”) in the form attached to the Space Lease between Unit A Seller and Citibank (the “Closing DocumentsCitibank Estoppel”) to which it is ).
8.1.10 Seller shall execute, acknowledge and deliver a party or for which it is otherwise responsible that are necessary to carry out Combined Real Estate Transfer Tax Return and Credit Line Mortgage Certificate, Form TP-584 in respect of the intention Property (the “State Transfer Tax Return”).
8.1.11 Seller shall execute, acknowledge and deliver a New York City Department of this Agreement and Finance Real Property Transfer Tax Return in respect of the other transactions contemplated to take place in connection therewith. The Closing Documents and other items Property (the “City Transfer Tax Return”).
8.1.12 Seller shall request to be delivered at to Purchaser, an estoppel certificate (a “Board Estoppel”) for the Closing benefit of and upon which Purchaser is entitled to rely, which shall be in the following:form attached hereto as Exhibit Y and made a part hereof, which the Condominium is obligated to deliver pursuant to Section 31 of the Declaration (the “Required Form”).
(a) The Contribution 8.1.13 Seller shall execute, acknowledge and Assumption deliver to Purchaser a counterpart of a Management Letter Agreement in the form attached hereto as Exhibit B;X (the “Management Letter”).
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units 8.1.14 Seller shall deliver to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or Purchaser a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit fully-executed letter from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor Citibank in the form attached hereto as Exhibit E;Z, which fully executed letter Purchaser acknowledges has been delivered prior to the date hereof.
(g) A copy of the most recent as-built survey of the Property8.1.15 Seller shall execute, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute acknowledge and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require a title affidavit in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C R and made a part hereof.
8.1.16 Seller shall cause to be delivered on the day immediately preceding the Closing Date a letter in the form of Exhibit U from Seller addressed to the Seller Designees and to the Secretary of the Board of Managers removing the Seller Designees from the Board of Managers and as officers of the Condominium and designating the persons selected by Purchaser to fill the vacancies resulting from the resignations of Seller’s Designees (unless such Existing Loans are repaid at the “Seller’s Designation Letter”).
8.2 At or prior to the Closing):
8.2.1 Purchaser shall pay to Seller the Purchase Price or the balance of the Purchase Price as required pursuant to Section 3.2 hereof.
8.2.2 Purchaser shall deliver to Seller copies of Purchaser’s resolutions authorizing the transaction contemplated by this Agreement.
8.2.3 Purchaser shall execute, as applicableacknowledge and deliver to Seller a counterpart of the Assignment of Space Leases.
8.2.4 Intentionally Omitted.
8.2.5 Purchaser shall execute, acknowledge and deliver to Seller a counterpart of the State Transfer Tax Return.
8.2.6 Purchaser shall execute, acknowledge and deliver to Seller a counterpart of the City Transfer Tax Return.
8.2.7 Purchaser shall execute, acknowledge and deliver to Seller a counterpart of the Omnibus Assignment and Assumption.
8.2.8 Purchaser shall execute, acknowledge and deliver to Seller a counterpart of the Management Letter.
8.2.9 Prior to Closing, Purchaser shall deliver to Seller, to be held in escrow by Seller, letters of resignation, in each casethe form attached hereto as Exhibit V, duly executed by each of the applicable party; andpersons identified in Seller’s Designation Letter, which letters of resignation Seller shall have the right to deliver to the Board of Managers if the Closing does not occur.
(p) An assignment 8.3 Seller and Purchaser, at the Closing, shall prepare, execute and deliver to each other, subject to all the terms and provisions of Excluded Assets from the Companythis Agreement a closing statement setting forth, inter alia, the Operating Partnership or a Subsidiary, as applicable, in favor closing adjustments and material monetary terms of Contributor, to achieve the distributions transaction contemplated under Section 1.4, if applicablehereby.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mack Cali Realty Corp)
Closing Deliveries. On At the Closing DateClosing, the parties ▇▇▇▇▇▇ shall make, execute, acknowledge and deliver, have delivered or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items caused to be delivered at to Dandrit and the Closing shall be Shareholders’ Representative, the following:
(ai) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(bA) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested resolutions duly adopted by the Company or board of directors of ▇▇▇▇▇▇ authorizing and approving the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute Exchange and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company of (if so requested by Contributor1) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents including the delivery of the ▇▇▇▇▇▇ Shares in exchange for the Dandrit Interests and (2) an equity incentive plan in a form to be approved and accepted by Dandrit and (B) resolutions duly adopted by the documents listed shareholders of ▇▇▇▇▇▇ authorizing and adopting an equity incentive plan in this Section 2.3a form which shall be satisfactory to Dandrit;
(lii) Any Tenant Estoppelsthe resignation of the officers of ▇▇▇▇▇▇, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, subject to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii)provisos of clause (iii) below;
(miii) The Operating Partnership subject to and in compliance with Rule 14f-1 under the Company Exchange Act, the existing directors of ▇▇▇▇▇▇ shall increase the size of the Board as appropriate, elect and appoint the individuals set forth on the one hand and Contributor on the other hand shall provide Schedule II to the other a certification regarding Board as indicated to fill vacancies created by such increase in the accuracy in all material respects size of each of their respective representations and warranties in this Agreement at the Closing Date (Board, upon which such directors, except to the extent they are remaining as indicated below, will resign, and provided further, that any representation or warranty speaks the positions of Chief Executive Officer, President, Chief Financial Officer and Treasurer as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties set forth on Schedule II shall be certified as being accurate in all respects)elected upon the Closing by the current directors of ▇▇▇▇▇▇;
(niv) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable effortsthis Agreement duly executed by ▇▇▇▇▇▇;
(iv) All all corporate records, agreements, seals and any other information reasonably requested by Dandrit or the Shareholders’ Representative with respect to ▇▇▇▇▇▇;
(vi) a cancellation agreement with respect to the cancellation of up to an aggregate of 4,400,000 issued and outstanding shares of common stock owned by an existing stockholder of ▇▇▇▇▇▇, effective upon the closing of the Exchange;
(vii) the ▇▇▇▇▇▇ Shares; provided, however, that certificates representing the ▇▇▇▇▇▇ Shares shall be delivered within ten (10) business days of the Closing;
(viii) evidence of the satisfaction of any outstanding liabilities, debts and obligations of ▇▇▇▇▇▇, other than the outstanding accounts payable and other debt payable to related parties as set forth on Schedule 4.9;
(ix) such other documents as Dandrit or the Shareholders’ Representative may reasonably required by a Lender request in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions transactions contemplated under Section 1.4, if applicablehereby.
Appears in 1 contract
Sources: Share Exchange Agreement (DanDrit Biotech USA, Inc.)
Closing Deliveries. On At the Closing DateClosing, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing following actions shall be the followingtaken, all of which will be deemed taken simultaneously and no one of which will be deemed completed until all have been completed:
A. Seller shall deliver to Purchaser:
(ai) The Contribution a bargain and Assumption Agreement sale deed with covenants against grantor's acts, including the covenant in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence required by Subdivision 5 of Section 13 of the transfer of OP Units Lien Law in proper statutory form for recording, duly executed and acknowledged by Seller so as to Contributor and by Contributor convey title to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth Purchaser in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directlyfee simple absolute, free and clear of all Liens liens and encumbrances except as herein stated;
(other than ii) a check to the Permitted Encumbrancesorder of Purchaser or the appropriate recording officers for the amount of the New York State transfer tax payable by reason of delivery of the deed, together with any required tax return executed by Seller;
(iii) and effectuate a certification of Non-Foreign Status under FIRPTA;
(iv) the transactions contemplated herebyoriginals, including, without limitation, and only to the extent applicablein Seller's possession, grant deeds (if transferred directly)of all agreements affecting the Premises, assignments of ground leasesplans, air space leases drawings, surveys, warranties, licenses and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is requiredpermits;
(iv) [A bargain any and sale deed in substantially all documents, affidavits and agreements reasonably required to issue a title policy from a reputable title insurance company;
(vi) a Certificate of Occupancy valid for the form existing use of the Premises;
(vii) a Subdivision Map of Section 56.025, Tax Block 4, P/O Lots 45 and 48.1 approved by the City of Kingston and all applicable governmental authorities (the "Parking Lot"), which lot shall provide Purchaser with at least one hundred sixty (160) parking spaces as shown on the schematic plan attached hereto as Exhibit F, C. Seller acknowledges that such Subdivision Map must comply with all applicable regulations or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, ordinances with respect to the Propertyamount of parking spaces allocated to the Premises. In the event the City of Kingston or applicable governmental authority makes approval of the Subdivision Map subject to the provision of additional parking spaces, either then Seller shall revise the Subdivision Map, subject to Purchaser's reasonable approval, to provide the required additional parking spaces; and
(viii) demolish the passageway between the Premises and the adjacent structure and repair per the scope of work attached hereto as Exhibit D.
B. Purchaser shall (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as pay the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or purchase price and (ii) such endorsements complete and execute, to the currently held owner’s or leasehold policy of title insurance for extent necessary, the Property as returns delivered by Seller and cause the Operating Partnership may reasonably request (includingsame, without limitationtogether with the checks delivered by Seller, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to be remitted to the an amount reasonably acceptable appropriate offices promptly after the Closing.
C. Purchaser agrees to the Operating Partnership, and with accept a tie-in endorsement with respect to all Contributed Properties located in any state for which title such tie-in endorsements can be issued for an owner’s or leasehold policy of as a reputable title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate)company will insure, subject only to the Permitted Encumbrances (collectivelyexceptions and conditions contained in this contract, at such title company's regular rates and without special endorsement.
D. Seller and Purchaser shall apportion the “Title Policies”);following on an accrual basis as of midnight on the day preceding the Closing:
(ka) The Operating Partnership real estate taxes, water charges and sewer rents; and (b) utilities and fuel, if any, and vault charges, if any. Seller shall furnish a reading to a date not more than ten (10) days prior to the Closing for any water meter on the Premises and the Company unfixed meter charge and sewer rent, if any, for the intervening time shall be apportioned on the one hand and Contributor on the other hand shall provide to the other a certified copy basis of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablereading.
Appears in 1 contract
Sources: Purchase and Sale Agreement (National Micronetics Inc)
Closing Deliveries. On (a) At the Closing, GMI shall deliver to Acquirer the following (the "GMI Closing Deliveries"):
(i) certificate(s) representing the GM Shares, duly endorsed in blank or accompanied by stock powers duly executed in blank by GMI as of the Closing Date and bearing any required legend;
(ii) the articles of incorporation of GM, certified by the Secretary of State of Delaware;
(iii) the bylaws of GM;
(iv) a corporate good standing certificate for GM by the Secretary of State of Delaware;
(v) the articles of incorporation of GMI, certified by the Secretary of State of New York;
(vi) the bylaws of GMI, certified by the Secretary of GMI as of the Closing Date, ;
(vii) a corporate good standing certificate for GMI by the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through Secretary of State of New York;
(viii) resolutions of the Power board of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention directors of GMI approving this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, includingcertified by the Secretary of GMI as of the Closing Date;
(ix) resolutions of the shareholders of GMI approving this Agreement and the transactions contemplated hereby, without limitationcertified by the Secretary of GM as of the Closing Date;
(x) the Shareholders Agreement, dated as of the Closing Date, executed by GMI and only PH Capital;
(xi) an incumbency certificate, dated as of the Closing Date, in form reasonably satisfactory to Acquirer, executed by the extent applicableSecretary of GMI; and
(xii) a closing certificate, grant deeds dated as of the Closing Date, in form reasonably satisfactory to Acquirer, executed by an officer of GMI.
(if transferred directly)b) At the Closing, assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which Acquirer shall deliver to GMI the Operating Partnership is required to file its partnership documentation or following (the recording of deeds or other Property Interest transfer documents is required;"Acquirer Closing Deliveries"):
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(jcertificate(s) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as representing 42,500,000 shares of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each caseAcquirer Common Stock, duly executed by the applicable partyPresident and Secretary of Acquirer as of the Closing Date and bearing any required legend;
(ii) certificates(s) representing 5,000 shares of Series A Preferred Stock, duly executed by the President and Secretary of Acquirer as of the Closing Date and bearing any required legend;
(iii) the articles of incorporation of Acquirer, including any amendment thereto required to increase the authorized number of shares of Acquirer Common Stock or otherwise to consummate the transactions contemplated by this Agreement;
(iv) the bylaws of Acquirer, certified by the Secretary of Acquirer as of the Closing Date;
(v) resolutions of the board of directors of Acquirer approving this Agreement and the transactions contemplated hereby, certified by the Secretary of Acquirer as of the Closing Date;
(vi) resolutions of the shareholders of Acquirer approving this Agreement and the transactions contemplated hereby, certified by the Secretary of Acquirer as of the Closing Date;
(vii) the PH Capital Option Agreement, dated as of the Closing Date, executed by PH Capital;
(viii) the VP Option Agreement, dated as of the Closing Date, executed by VP;
(ix) the Assignment Agreement, dated as of the Closing Date, executed by VP;
(x) the Assumption Agreement, dated as of the Closing Date, executed by Acquirer;
(xi) the Series B Purchase Agreement, dated as of the Closing Date, executed by MBP and Acquirer;
(xii) the Shareholders Agreement, dated as of the Closing Date, executed by Acquirer and VP;
(xiii) an incumbency certificate, dated as of the Closing Date, in form reasonably satisfactory to GMI, executed by the Secretary of Acquirer; and
(pxiv) An assignment a closing certificate, dated as of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicableClosing Date, in favor form reasonably satisfactory to GMI, executed by an officer of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableAcquirer.
Appears in 1 contract
Sources: Stock Exchange Agreement (American Pulp Exchange Inc)
Closing Deliveries. On At the Closing Date, the parties Closing:
(a) MD Office and Stockholders shall make, execute, acknowledge and deliver, deliver or cause to be madedelivered to Digirad the following:
(i) a certificate of the Secretary (or equivalent officer) of MD Office, executedin form and substance satisfactory to Digirad and its counsel, acknowledged certifying: (A) that attached thereto are true and delivered, through correct copies of the Power of Attorney or MD Office Charter Documents as in effect immediately prior to the Attorney-in-Fact Closing; (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”B) to which it is a party or for which it is otherwise responsible that are necessary the names and signatures of the officers of MD Office authorized to carry out the intention of sign this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items documents to be delivered at the Closing shall be the following:
hereunder; (aC) The Contribution that attached thereto are true and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence correct copies of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested all resolutions adopted by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest board of Contributor directly, free and clear directors of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions MD Office authorizing the execution, delivery and performance of this Agreement by the Operating Partnership MD Office and the Company consummation of the Transactions, and that all such resolutions are in full force and effect; (if so requested by ContributorD) that attached thereto is a true and Contributor correct list of all holders of MD Office capital stock as reflected in the stock transfer books of MD Office; and (if so requested by the Operating Partnership or the CompanyE) that attached thereto is a true and correct copy of a unanimous written consent of all holders of MD Office capital stock approving this Agreement, any related documents Agreement and the documents listed in this Section 2.3;consummation of the Transactions.
(lii) Any Tenant Estoppelsletters of resignation, any Ground Lease Estoppels in form and any other tenant estoppel certificatessubstance satisfactory to Digirad and its counsel, in the name of and executed by (A) each member of MD Office’s Board of Directors resigning his or her position as a director of MD Office effective as of the Closing Date, and (B) each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇ resigning his or her position as an officer of MD Office effective as of the Closing Date, in each case, except as otherwise agreed to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii)parties;
(miii) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide duly executed counterparts to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except Transaction Documents to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects)MD Office is a party;
(niv) Any books, records and Organizational duly executed counterparts to each of the Transaction Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable effortsany such Stockholder is a party;
(iv) All documents reasonably required by a Lender in connection with the assumption or prepayment bank account signature cards for each account of an Existing Loan at or prior to Closing and MD Office;
(iivi) the Existing Loan Release or Required Consents;
(vii) all corporate, minute and stock records of MD Office, which delivery requirement shall be deemed satisfied if MD Office makes such items available to Digirad by leaving them in the Existing Loan Indemnity Agreement in substantially offices of MD Office at the form Closing;
(viii) duly executed counterpart by ▇▇▇▇▇ ▇▇▇▇▇ to the employment agreement attached hereto as Exhibit C (unless such Existing Loans are repaid at or the “Samia Agreement”);
(ix) duly executed counterpart by ▇▇▇▇▇ ▇▇▇▇▇▇ to the transition services agreement attached hereto as Exhibit D (the “▇▇▇▇▇▇ Agreement” and together with the Samia Agreement, the “New Service Agreements” and each, a “New Service Agreement”);
(x) a certificate from the Secretary of State of the State of California, dated as of a recent date prior to Closing), certifying as to the good standing of MD Office;
(xi) the Financial Statements;
(xii) a duly completed and executed certification of non-foreign status pursuant to Section 1.1445-2(b)(2) of the Treasury Regulations;
(xiii) a certificate with respect to the amount of MD Office Cash Balance at the Effective Time, executed by an officer of MD Office;
(xiv) to all parties to whom MD Office Transaction Expenses are owed or payable, as set forth on Section 3.30 of the Disclosure Schedule, payment in full of all such MD Office Transaction Expenses;
(xv) to all parties to whom amounts are owed or payable in connection with the Indebtedness of MD Office, as set forth on Section 3.28 of the Disclosure Schedule, payment in full of all amounts are owed or payable in connection with such Indebtedness of MD Office;
(xvi) to all Stockholders to whom amounts are owed or payable in connection with Stockholder Liabilities, as set forth on Section 3.28 of the Disclosure Schedule, payment in full of all amounts are owed or payable in connection with such Stockholder Liabilities;
(xvii) evidence that S Corporation election letter modification is filed and effective; and
(xviii) all other documents and certificates required to be delivered by MD Office and the Stockholders pursuant to the terms of this Agreement.
(b) Digirad shall deliver or cause to be delivered the following:
(i) irrevocable instructions to Digirad’s transfer agent to deliver the Stock Consideration deliverable in respect of each Stockholder who has executed and delivered the applicable Stockholder Documents;
(ii) a certificate of the Secretary (or equivalent officer) of Digirad, in form and substance satisfactory to Stockholder Representative and its counsel, certifying: (A) that attached thereto are true and correct copies of the Digirad Charter Documents as in effect immediately prior to the Closing; (B) to the names and signatures of the officers of Digirad authorized to sign this Agreement and the other documents to be delivered hereunder; and (C) that attached thereto are true and correct copies of all resolutions adopted by the board of directors of Digirad authorizing the execution, delivery and performance of this Agreement by Digirad and the consummation of the Transactions, and that all such resolutions are in full force and effect.
(iii) to the Stockholder Representative, duly executed counterparts to each of the Transaction Documents to which Digirad is a party;
(iv) to ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇, as applicable, in each case, duly executed by counterparts of the applicable partySurviving Corporation to the New Service Agreements;
(v) to each Stockholder, such Stockholder’s Pro Rata Share of MD Office Cash Balance; and
(pvi) An assignment all other documents and certificates required to be delivered by Digirad and Merger Sub pursuant to the terms of Excluded Assets from this Agreement.
(c) MD Office shall have provided Digirad all information required by Digirad to allow Digirad to pay all Additional MD Office Transaction Expenses.
(d) MD Office shall file with the Company, Secretary of State of the Operating Partnership or State of California a Subsidiaryduly executed California Agreement of Merger and California Officer’s Certificate, as applicablerequired by the CGCL, in favor of Contributor, and the parties shall take all such other and further actions as may be required by Law to achieve make the distributions contemplated under Section 1.4, if applicableMerger effective upon the terms and subject to the conditions hereof.
Appears in 1 contract
Sources: Merger Agreement (Digirad Corp)
Closing Deliveries. On (a) At the Closing DateClosing, Seller shall deliver to Buyer:
(i) a Certificate or Certificates signed by an appropriate officer of Seller stating that (A) each of the parties shall make, execute, acknowledge representations and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described warranties contained in Article 5 hereofThree hereof is true and correct in all material respects at the time of the Closing, and (B) all of the conditions set forth in Sections 7.02(b) and 7.02(d), the OP Agreement and other legal documents and items insofar as Section 7.02(d) pertains to approvals required to be executed obtained by Seller, have been satisfied or delivered in connection with waived as provided therein;
(ii) a certified copy of the Closing (collectively resolutions of Seller's Board of Directors, as required for valid approval of the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention execution of this Agreement and the other transactions consummation of the purchase and assumption transaction contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit Bhereby;
(biii) The OP Agreement and evidence of payment to Buyer, by wire transfer in immediately available funds to an account designated by Buyer, of the ArticlesEstimated Asset Purchase Price, if payable to Buyer;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (iiv) an ALTA extended coverage owner’s or leasehold policy executed Assignment and Assumption of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Deposit Liabilities Agreement in substantially the form attached hereto set forth in EXHIBIT 1 hereto;
(v) an executed Assignment and Assumption of Contracts Agreement in substantially the form set forth in EXHIBIT 2 hereto;
(vi) a ▇▇▇▇ of Sale in substantially the form set forth in EXHIBIT 3 hereto;
(vii) a warranty deed (subject to Permitted Exceptions, as Exhibit C (unless such Existing Loans are repaid at or prior to Closingterm is defined in Section 11.15 hereof), conveying the Real Property to the Buyer, together with a commitment for title insurance with respect to the Real Property;
(viii) an Assignment and Successor Trustee Agreement with respect to the transfer of the ▇▇▇ Accounts in substantially the form set forth in EXHIBIT 4;
(ix) a Non-Competition Agreement in substantially the form set forth in EXHIBIT 5;
(x) such other bills of sale, assignments, and other instruments and documents as applicablecounsel for Buyer may reasonably require as necessary or desirable for transferring, in assigning and conveying to Buyer good, marketable and insurable title to the Assets;
(xi) listings of the Deposit Liabilities as of the Closing Date (the "Deposit Listings") on magnetic tape or utilizing such other method of information transfer as the parties may mutually agree, which Deposit Listings shall include, for each caseaccount, duly executed by the applicable partyaccount number, outstanding principal balance, and accrued interest; and
(pxii) An assignment such Records as are capable of Excluded Assets from being delivered to Buyer.
(b) At the CompanyClosing, Buyer shall deliver to Seller:
(i) a Certificate or Certificates signed by an appropriate officer of Buyer stating that (A) each of the Operating Partnership representations and warranties contained in Article Four is true and correct in all material respects at the time of the Closing, and (B) all of the conditions set forth in Sections 7.01(b) and 7.01(d), insofar as Section 7.01(d) pertains to approvals required to be obtained by Buyer, have been satisfied or waived as provided therein;
(ii) a Subsidiarycertified copy of the resolutions of the Board of Directors of Buyer authorizing the execution of this Agreement and the consummation of the purchase and assumption transaction contemplated hereby;
(iii) evidence of payment to Seller, as applicableby wire transfer in immediately available funds to an account designated by Seller, in favor of Contributor, to achieve the distributions contemplated under Section 1.4Estimated Asset Purchase Price, if applicablepayable to Seller;
(iv) an executed Assignment and Assumption of Deposit Liabilities Agreement in substantially the form set forth in EXHIBIT 1 hereto;
(v) an executed Assignment and Assumption of Contracts Agreement in substantially the form set forth in EXHIBIT 2 hereto; and
(vi) an executed Assignment and Successor Trustee Agreement with respect to the transfer of the ▇▇▇ Accounts in substantially the form set forth in EXHIBIT 4 hereto.
(c) On the next business day following the Closing, Buyer shall deliver to Seller evidence of payment to Seller, by wire transfer in immediately available funds to an account designated by Seller, of the Premium.
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (HCB Bancshares Inc)
Closing Deliveries. On (a) At the Closing DateClosing, the parties Seller shall make, execute, acknowledge and deliver, deliver or cause to be made, executed, acknowledged and delivered, through the Power delivered to Purchaser all of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(ai) The Contribution a duly executed and Assumption Agreement in the form attached hereto as Exhibit Bcompleted IRS Form W-9 from Seller;
(bii) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units certificate referred to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(24.2(f);
(fiii) The release an original, fully executed by Operating Partnership and notarized statutory warranty deed conveying the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the PropertyFacility, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable subject to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached of Exhibit K (the “Statutory Warranty Deed”);
(iv) such documents as Exhibit Fare reasonably required to evidence Seller’s existence and authority to convey the Facility to Purchaser or to consummate the transaction contemplated by this Agreement, or including (A) a customary owner’s affidavit and gap indemnity in such form as is customary in reasonably necessary to cause the applicable jurisdiction which the Title Company shall require in order title company to issue the Title Policies;]
(j) A standard an ALTA owner’s affidavit executed by Contributor policy of title insurance insuring fee simple title to the extent necessary to Facility in Purchaser without taking exception for the standard preprinted exceptions or broker liens and any “gap” exception, (B) a termination of any Encumbrances in recordable form or an affidavit from Seller in recordable form that will enable the Title Company to issue the Title Policy without exception for the Amgen Easement or with affirmative insurance in form and substance reasonably acceptable to Purchaser over the Amgen Easement and (C) those affidavits and other documents required by Alabama Code. Section 40-18-86;
(v) counterparts of each of the Ancillary Agreements (other than the Equity Commitment Letter), each duly executed on behalf of Seller;
(vi) an Alabama Department of Revenue Real Estate Sales Validation Form (RT-1) and any required transfer tax forms or required forms for withholding (as determined by Purchaser); and
(vii) a counterpart to the Operating Partnership or its SubsidiaryAmended and Restated Limited Liability Company Agreement of Parent, effective as in substantially the form of Exhibit L (the “LLC Agreement”), duly executed by Seller.
(b) At the Closing, with respect Purchaser shall deliver or cause to be delivered to Seller the Closing Cash Payment, by wire transfer in immediately available funds to an account specified in writing by Seller at least one Business Day prior to the PropertyClosing Date, either and all of the following:
(i) an ALTA extended coverage owner’s or leasehold policy of title insurance (the certificate referred to in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”Section 4.3(c);
(kii) The Operating Partnership a current sales and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions use tax resale certificate (or partnership or limited liability company actions authorizing the execution, delivery and performance sales tax license) issued by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership Alabama Department of Revenue or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3other applicable state Taxing Authority;
(liii) Any Tenant Estoppelsa Subscription Agreement in substantially the form of Exhibit M, any Ground Lease Estoppels pursuant to which the Sponsor will fund cash required to fulfill Buyer’s obligations pursuant to this Section 3.2(b) and any other tenant estoppel certificates$[* * *] in balance sheet cash to be used in connection with the Facility Operations after the Closing, in each case, to in exchange for the extent obtained by issuance of Preferred Units of Parent (the Contributor in accordance with Section 2.1(b)(viii“Subscription Agreement”);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable partySponsor, Parent and the other parties thereto; and
(piv) An assignment counterparts of Excluded Assets from each of the CompanyAncillary Agreements, the Operating Partnership or a Subsidiary, as applicable, in favor each duly executed on behalf of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablePurchaser.
Appears in 1 contract
Closing Deliveries. On the Closing DatePrior to, or concurrently with, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power execution of Attorney or the Attorney-in-Fact (described in Article 5 hereof)this Amendment, the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingBorrowers shall:
(a) The Contribution execute and deliver to the Agent a fully executed Borrower Assumption Agreement in the form of Exhibit A attached hereto as Exhibit Bhereto;
(b) The OP execute and deliver to each Lender that has requested a Revolving Note, a new or replacement Revolving Note, as applicable, in the amount specified in Schedule 1 to the Credit Agreement and the Articles(after giving effect to this Amendment);
(c) The Amendment or other evidence cause each Loan Party party to the Pledge Agreement to execute and deliver to the Agent, for the benefit of the transfer of OP Units Lenders, an Amended and Restated Pledge Agreement, in form and substance satisfactory to Contributor and by Contributor the Agent, with respect to its Participantsthe Pledged Securities;
(d) Evidence cause any Person that owns any Equity Interests in Ramaco Coal, LLC to (i) execute and deliver to the Agent, for the benefit of the DTC Registered REIT StockLenders, which shall bear substantially appropriate transfer powers for each of the legend set forth in Pledged Securities of Ramaco Coal, LLC that are certificated, and (ii) deliver to the Articles or a written statement Agent, for the benefit of information that the Company will furnish a full statement about certain restrictions on transferability Lenders, the Pledged Securities (to a stockholder as set forth in the Articles on request and without chargeextent such Pledged Securities are certificated) of Ramaco Coal, LLC;
(e) An affidavit from Contributor cause Ramaco Coal, LLC to deliver to the Agent an officer’s certificate certifying the names of the officers of such Person that are authorized to sign the Loan Documents, together with the true signatures of such officers and certified copies of (or, if Contributor is a disregarded entity within i) the meaning resolutions of Section 1.1445-2(d)(2)(iii), the sole owner board of Contributor for such purposesdirectors (or comparable documents) of non-foreign status satisfying such Person evidencing approval of the requirements execution, delivery and performance of Treasury Regulations section 1.1445-2(b)(2)this Amendment and any other Loan Documents required in connection herewith, and (ii) the organizational documents of such Person;
(f) The release executed by Operating Partnership and deliver to the Company in favor Agent certified copies of the employees and Affiliates resolutions of the Supervisor board of directors (or comparable documents) of each Borrower evidencing approval of the execution, delivery and performance of this Amendment and any other Loan Documents required in the form attached hereto as Exhibit Econnection herewith;
(g) A copy of deliver to the most recent as-built survey of the PropertyAgent a full force and effect or good standing certificate (or comparable document, if anyneither certificate is available in the applicable jurisdiction), as the case may be, for each Borrower, issued on or about the date hereof by the Secretary of State in the state such entity is formed;
(h) Any deliver to the Agent accurate and complete copies of any Lien, pending suit, title and other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested public record searches required by the Company or Agent;
(i) deliver to the Operating Partnership or that are reasonably necessary or desirable Agent an executed legal opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PLLC, in form and substance satisfactory to assignthe Agent, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate which shall cover such matters incident to the transactions contemplated herebyby this Amendment, and the other Loan Documents as the Agent may reasonably require;
(j) execute and deliver to the Agent a letter of direction authorizing the Agent, on behalf of the Lenders, to disburse the proceeds of the Loans on the date hereof, which letter of direction includes the authorization to pay the fees and expenses owing by the Borrowers in connection with this Amendment and the wire instructions that set forth the locations to which such funds shall be sent;
(k) deliver to the Agent certificates of insurance on ▇▇▇▇▇ 25 and 27 or 28 form and proof of endorsements satisfactory to the Agent (which proof of endorsement may be provided within a reasonable time after closing of this Amendment as long as such certificates of insurance, satisfactory to the Agent, are provided to the Agent prior to closing), providing for adequate personal property and liability insurance for Ramaco Coal, LLC, with the Agent listed as lender’s loss payee and additional insured, as appropriate;
(l) deliver to each Lender, at least three (3) Business Days prior to the date hereof, all documentation and other information requested by any such Lender required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations requested at least five (5) Business Days prior to the date hereof, including, without limitation, the USA PATRIOT Act and only Beneficial Ownership Regulations; and
(m) deliver to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor Agent evidence that Investec Bank PLC has consented to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, transactions contemplated hereby with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable▇▇▇▇▇ Acquisition Indebtedness.
Appears in 1 contract
Closing Deliveries. On At the Closing, Seller shall deliver to Buyer:
(i) a Certificate or Certificates signed by an appropriate officer of Seller stating that (A) each of the representations and warranties contained in Article Three is true and correct in all material respects at the time of the Closing Datewith the same force and effect as if such representations and warranties had been made at Closing, and (B) all of the parties shall make, execute, acknowledge conditions set forth in Sections 7.02(b) and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof7.02(d), the OP Agreement and other legal documents and items insofar as Section 7.02(d) pertains to approvals required to be executed obtained by Seller, have been satisfied or delivered waived as provided therein;
(ii) evidence of payment to Buyer, by wire transfer in connection with immediately available funds to an account designated by Buyer, of the Closing Estimated Purchase Price;
(collectively iii) a certified copy of the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out articles of incorporation, as amended, bylaws, as amended, and resolutions of the intention Board of Directors of Seller authorizing the execution of this Agreement and the other transactions consummation of the purchase and assumption transaction contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit Bhereby;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (iiv) an ALTA extended coverage owner’s or leasehold policy executed Assignment and Assumption of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Deposit Liabilities Agreement in substantially the form attached hereto set forth in Exhibit 2 hereto;
(v) an executed Assignment and Assumption of Contracts Agreement in substantially the form set forth in Exhibit 3 hereto;
(vi) an executed ▇▇▇▇ of Sale in substantially the form set forth in Exhibit 4 hereto;
(vii) a special warranty deed (subject to Permitted Encumbrances), conveying the Real Property to Buyer;
(viii) an executed Assignment, Transfer and Appointment of Successor Trustee for ▇▇▇ Accounts in substantially the form set forth in Exhibit 5;
(ix) an executed Limited Power of Attorney in substantially the form set forth in Exhibit 6;
(x) such other bills of sale, assignments, and other instruments and documents as Exhibit C counsel for Buyer may reasonably require as necessary or desirable for transferring, assigning and conveying to Buyer good, marketable and insurable title to the Assets;
(unless xi) listings of the Deposit Liabilities as of the Closing Date (the “Deposit Listings”) on magnetic tape or utilizing such Existing Loans other method of information transfer as the parties may mutually agree, which Deposit Listings shall include, for each account, the account number, outstanding principal balance, and accrued interest;
(xii) such Records as are repaid capable of being delivered to Buyer, which Records may, at Seller’s option, be delivered by delivery of imaged photocopies or prior to Closing)other non-original and non-paper media in lieu of original copies;
(xiii) updated schedules, as applicable, of the Personal Property, the Safe Deposit Box Business, and the Deposit Liabilities as of the latest date preceding the Closing Date for which such information is available;
(xiv) an executed certificate, in each caseform and substance reasonably satisfactory to Buyer, duly executed by as to the applicable partynon-foreign status of Seller pursuant to Section 1.445-2(b)(2) of the United States Treasury Regulations; and
(pxv) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableCash on Hand.
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (Your Community Bankshares, Inc.)
Closing Deliveries. On The transaction contemplated hereby shall close on the date of Closing Date, at the offices of the Escrowee or at such other date and place as the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through may mutually agree at a time agreed on by the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:parties.
(a) The Contribution On the date of Closing, Seller shall deliver to the Escrowee for deposit into the escrow, the following closing documents, all duly executed and Assumption Agreement acknowledged and in recordable form as appropriate, each of which shall be in form and substance acceptable to counsel for Purchaser:
(i) a warranty deed conveying good and marketable fee simple title to the Property, and all easements and other rights appurtenant thereto, to Purchaser or its designee, subject only to Permitted Exceptions;
(ii) such other documents and instruments as are required to transfer Seller's interest in the Property as required by the title company or any laws or regulations;
(iii) an executed certification by Seller as of the date of Closing reaffirming its representations and warranties set forth in the Option Agreement;
(iv) an affidavit of non-foreign status of Seller as in the form attached hereto as Exhibit BA;
(v) such information about Seller required by escrowee or Purchaser which is required for federal, state or local income tax information recording purposes;
(vi) an Owner's Affidavit in the form required by the title company;
(vii) the Gap Undertaking;
(viii) any required documentary or transfer tax declaration; and
(ix) Connecticut Transfer Act Disclosure document.
(b) The OP Agreement and On the ArticlesClosing Date, Purchaser shall deliver to the Escrowee for deposit into the escrow, the following items:
(i) the balance of the Purchase Price;
(ii) Owner's Affidavit; and
(iii) any required documentary or transfer stamp declaration.
(c) The Amendment Seller and Purchaser shall jointly deposit into the escrow or deliver to each other evidence of at Closing and agreed proration statement fully executed by the transfer of OP Units to Contributor and by Contributor to its Participants;respective parties.
(d) Evidence Purchaser and Seller shall cooperate in the filing of the DTC Registered REIT Stockappropriate forms with the Connecticut Department of Environmental Protection ("DEP") pursuant to the provisions of Connecticut General Statutes Section 22a-134 et. seq. (the "Transfer Act"). If a Form III or Form IV is required, due in whole or in part to Discharges or Releases of Hazardous Substances for which shall bear substantially Purchaser is responsible under the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company Asset Purchase Agreement or the Operating Partnership or that are reasonably necessary or desirable to assignLease, transfer, convey, contribute and deliver Purchaser shall act as the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, certifying party with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender Transfer Act in connection with the assumption transaction; provided, however, that if there also exists an Environmental Condition which is the obligation of Seller pursuant to the Asset Purchase Agreement or prepayment the Lease, Seller shall execute an agreement to indemnify, defend and save harmless Purchaser from and against any and all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, including without limitation, attorneys' fees, which may be imposed upon or incurred by Purchaser for such Discharges or Releases of an Existing Loan Hazardous Substances for which Seller is responsible under the Asset Purchase Agreement or the Lease (without in any way limiting, reducing or superseding the indemnification provided in the Asset Purchase Agreement) and provided, further, that notwithstanding the foregoing, Purchaser, at its option, may postpone the Closing for up to one (1) year after the date the Environmental Condition is remediated. If a Form II is the appropriate form to be filed, or if a Form IV is required due solely to Discharges or Releases of Hazardous Substances that occurred prior to the Closing Date or for which Seller is otherwise responsible under the Asset Purchase Agreement, Seller shall prepare, act as the certifying party under and (ii) the Existing Loan Release file such Form. If post-remediation monitoring or the Existing Loan Indemnity Agreement in substantially the form attached hereto natural attenuation monitoring is required as Exhibit C (unless such Existing Loans are repaid at a result of Discharges or Releases of Hazardous Substances that occurred prior to Closing)the Closing Date under the Asset Purchase Agreement, as applicable, in each case, duly executed by it shall be the applicable party; and
(p) An assignment responsibility of Excluded Assets the Seller to conduct such monitoring. If further remediation of Hazardous Substances existing on or emanating from the CompanyLand prior to the Closing Date under the Asset Purchase Agreement is necessary based upon the results of such monitoring, the Operating Partnership or a Subsidiary, as applicable, Seller shall take such further action to remediate the Land in favor of Contributor, to achieve accordance with the distributions contemplated under Section 1.4, if applicableRemediation Standards.
Appears in 1 contract
Closing Deliveries. On (a) At the Closing, the Sellers will, for themselves and as agents for the Selling Affiliates (as applicable), deliver or cause to be delivered to the Purchaser, for itself and as agent for the Designated Affiliates (as applicable):
(i) Business Transfer Agreements, executed by the applicable Asset Selling Affiliates;
(ii) Share Transfer Documents, executed by the applicable Share Selling Affiliates;
(iii) certificates representing such of the Shares as are certificated (duly endorsed in blank or accompanied by stock powers duly executed in blank or other appropriate transfer forms in form reasonably satisfactory to the Purchaser for transfer) with all appropriate stock transfer tax stamps affixed, and such other deeds, documents and instruments as are necessary or appropriate to effect the valid transfer of the remainder of the Shares executed by the applicable Share Selling Affiliates;
(iv) assignment of all Purchased Intellectual Property in the form of Exhibit B (the “IP Assignment”) executed by the applicable Asset Selling Affiliate;
(v) the Transition Services Agreement, executed by the Sellers;
(vi) letters of resignation effective as of the Closing Date from the directors and officers (or their equivalent) of the Acquired Companies, executed by the relevant directors and officers (or their equivalent) in a form reasonably satisfactory to the Purchaser;
(vii) the minute books, stock ledger and seal (if any) of each of the Acquired Companies (which, at the election of the Sellers, will be delivered from representatives of the Sellers to representatives of the Purchaser locally in the jurisdiction of incorporation or formation of the applicable Acquired Company);
(viii) a FIRPTA certificate with respect to CareFusion 209, Inc. in accordance with the requirements of Treasury Regulation Section 1.1445-2(b)(2) certifying that Viasys Holdings, Inc. is a U.S. person;
(ix) a FIRPTA certificate in accordance with the requirements of Treasury Regulation Section 1.1445-2(b)(2) certifying that CareFusion 209, Inc. is a U.S. person;
(x) a certificate, dated as of the Closing Date, executed by an officer of each of the Sellers confirming the satisfaction of the conditions specified in Sections 6.1(a) and 6.1(b);
(xi) assignments of the Notes Receivable, executed by the applicable debtor and in a form reasonably satisfactory to the Purchaser;
(xii) a certificate, dated as of the Closing Date, executed on behalf of each of the Sellers by its secretary, an assistant secretary or an authorized officer, certifying (A) the Organizational Documents of each of the Acquired Companies; (B) resolutions of the board of directors, sole director or shareholders (or equivalent), as the case may be, of each of the Sellers and other Selling Affiliates to evidence: (i) the approval of the sale, assignment and transfer of the Purchased Assets and the Shares, and the transactions contemplated by this Agreement; and (ii) the authorization of the execution of and the performance by the relevant Seller Group member of its obligations under each of the documents to be executed by it;
(xiii) pay-off, lien release or similar letters from holders of Indebtedness of any Acquired Company or any other Selling Affiliates to the extent then encumbering any of the Purchased Assets (in each case, other than Closing Indebtedness (if any) of the Selling Affiliates), in a form reasonably acceptable to the Purchaser;
(xiv) the Sellers shall have executed and delivered to the Purchaser a release in form and substance reasonably satisfactory to the Purchaser that acknowledges that, as of the Closing Date, the parties shall makeSellers and the Selling Affiliates have no claim of any nature against any of the Acquired Companies and that none of the Acquired Companies have any or owe any liability to the Sellers or the Selling Affiliates, executein each case other than any Intercompany Accounts; and
(xv) such other instruments of sale, acknowledge transfer, conveyance and deliverassignment as the Purchaser reasonably requests for the purpose of consummating the transactions contemplated by this Agreement.
(b) At the Closing, the Purchaser will, for itself and as agent for the Designated Affiliates (as applicable), deliver or cause to be madedelivered to the Sellers, executedfor themselves and as agents for the Selling Affiliates (as applicable):
(i) the Cash Purchase Price (A) plus or minus the Estimated Closing Net Working Capital Adjustment Amount as applicable, acknowledged and delivered(B) minus the Estimated Closing Indebtedness, through by wire transfer of immediately available funds in U.S. dollars to the Power of Attorney or account(s) specified by the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required Sellers no later than two Business Days prior to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:Date;
(aii) The Contribution and Assumption Agreement the Business Transfer Agreements, executed by the Purchaser and/or the applicable Designated Affiliates;
(iii) the Share Transfer Documents, if any, that call for a signature by the Purchaser and/or its Designated Affiliates, executed by the Purchaser and/or such Designated Affiliates, as applicable;
(iv) the IP Assignment, executed by the Purchaser and/or such Designated Affiliates, as applicable;
(v) the Transition Services Agreement, executed by the Purchaser;
(vi) a release in the form attached hereto as of Exhibit B;
(b) The OP Agreement and the Articles;
(c) The Amendment or other evidence C, executed by Purchaser on behalf of each of the transfer of OP Units Acquired Companies with respect to Contributor and by Contributor to its Participants;
(d) Evidence each of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles resigning officers and directors (or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2their equivalent);
(fvii) The release a certificate, dated as of the Closing Date, executed on behalf of each of the Purchaser by Operating Partnership its secretary, an assistant secretary or an authorized officer, certifying resolutions of the board of directors, sole director or shareholders (or equivalent), as the case may be, of each of the Purchaser and its applicable Affiliates to evidence: (i) the approval of the purchase, assignment and transfer of the Purchased Assets and the Company in favor of the employees Shares, and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or authorization of the Existing Loan Indemnity Agreement execution of and the performance by the relevant Purchaser and its Affiliates (as applicable) of its obligations under each of the documents to be executed by it;
(viii) a certificate, dated as of the Closing Date, executed by an officer of the Purchaser confirming the satisfaction of the conditions specified in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to ClosingSections 6.2(a) and 6.2(b), as applicable, in each case, duly executed by the applicable party; and
(pix) An such other instruments of sale, transfer, conveyance and assignment as the Sellers reasonably request for the purpose of Excluded Assets from consummating the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions transactions contemplated under Section 1.4, if applicableby this Agreement.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Natus Medical Inc)
Closing Deliveries. On (a) At the Closing, the Seller shall deliver or cause to be delivered to the Purchaser:
(i) to the extent certificated, certificate(s) representing all of the Equity Interests, together with membership interest transfer powers, duly endorsed in blank and certificates representing all of the membership interests or shares of capital stock of the Company Subsidiaries;
(ii) copies of the Escrow Agreement, the Lease Agreement, the Transition Services Agreement and any other Transaction Documents to which the Seller is a party, duly executed by the Seller and any of its Affiliates (as applicable);
(iii) an officer’s certificate, dated as of the Closing Date, duly executed by an authorized officer of the parties shall makeSeller, execute, acknowledge and deliver, or cause stating that the conditions to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”set forth in Sections 8.2(a) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the Articles;
have been satisfied (c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title PoliciesSeller Closing Certificate”);
(kiv) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy secretary’s certificate, dated as of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each caseDate, duly executed by the Secretary of the Seller, attesting to: (A) the incumbent officers of the Seller; and (B) resolutions of the Board of Directors of the Seller and, if required under the Organizational Document of the Seller, the stockholders of the Seller, in each case approving the Transactions;
(v) copies of the Organizational Documents of the Company and each of the Company Subsidiaries certified by the appropriate Governmental Entity (as to Organizational Documents filed therewith) as of a date as near as reasonably practicable to the Closing Date;
(vi) to the extent issued by each of the relevant jurisdictions, good standing certificates for the Company and each of the Company Subsidiaries for their respective jurisdictions of organization, each dated as of a date as near as reasonably practicable to the Closing Date;
(vii) resignations of all officers and directors of the Company and each of the Company Subsidiaries;
(viii) an affidavit, duly executed and acknowledged by an officer of the Seller, certifying that the Seller is a “domestic corporation” within the meaning of Sections 7701(a)(3) and (4) of the Code and Sections 1.897-1(j) and 1.1445-2 of the applicable Treasury Regulations;
(ix) any additional items required to be delivered at Closing by Section 8.2.
(b) At the Closing, the Purchaser shall deliver or cause to be delivered to the Seller:
(i) evidence reasonably satisfactory to the Seller of: (A) payment of the Escrow Deposit to the Escrow Agent as described in Section 2.4; and (B) payment of the remainder of the Purchase Price (less the Escrow Deposit) to the Seller;
(ii) copies of the Escrow Agreement, the Lease Agreement, the Transition Services Agreement and any other Transaction Documents to which the Purchaser is a party, duly executed by the Purchaser;
(iii) an officer’s certificate, dated as of the Closing Date, duly executed by an authorized officer of the Purchaser, stating that the conditions to the Closing set forth in Sections 8.1(a) and (b) have been satisfied (the “Purchaser Closing Certificate”);
(iv) a secretary’s certificate, dated as of the Closing Date, duly executed by the Secretary of the Purchaser, attesting to: (A) the incumbent officers of the Purchaser; and (B) resolutions of the Board of Directors or similar governing body of the Purchaser approving the Transactions; and
(pv) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, any additional items required to achieve the distributions contemplated under be delivered at Closing by Section 1.4, if applicable8.2.
Appears in 1 contract
Closing Deliveries. On (a) At the Closing DateClosing, the parties shall make, execute, acknowledge and deliver, Sellers will deliver or cause to be made, executed, acknowledged and delivered, through delivered to the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingPurchasers:
(ai) The Contribution such executed instruments of transfer or other evidence sufficient to transfer all of the Equity Interests to Purchasers (together, the “Equity Transfer Documents)”, including certificates representing the Shares and Assumption Agreement statutory share transfer forms (the “Share Transfer Forms”) in the form attached hereto as of Exhibit B;
(b) The OP Agreement A executed by each Share Seller and all other documents necessary to register the Articles;
(c) The Amendment or other evidence of Share Transfer Forms with the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2Mauritian Registrar General);
(fii) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the PropertyOption Shares: (A) notices of exercise of options, either in a form reasonably acceptable to Share Purchaser, in which each Option Holder (i) an ALTA extended coverage owner’s exercises all of the vested options in Class B Shares of the Company held by him or leasehold policy of title insurance (in current form)her upon Closing, with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements authorizes the Share Purchaser to pay the aggregate exercise price payable in respect of the exercise of Options to the currently held owner’s or leasehold policy Company from the portion of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal Initial Purchase Price payable to the an amount reasonably acceptable Option Holder therefor, (iii) authorizes the sale of the Option Shares to the Operating PartnershipShare Purchaser and instructs the Seller Representative to carry out all necessary actions to effect such sale and purchase, and (iv) authorizes the Share Purchaser to pay the net consideration from the sale of Option Shares to [***] = Confidential Treatment requested for redacted portion; redacted portion has been filed separately with a tie-the Commission. the Option Holders (having first deducted from the sale proceeds (1) the aggregate exercise price payable in endorsement with respect of the exercise of the Options, plus (2) sufficient funds to all Contributed Properties located in satisfy any state for which such tie-in endorsements can be issued for an owner’s income tax liability and or leasehold policy any other tax or social security withholding required where appropriate and (3) the pro rata share of title insurance, and levels of reinsurance for the Property as reasonably acceptable contributions to the Operating PartnershipEscrow Amount and the pro rata share of transaction fees and expenses associated with the exercise of the option and the sale of the Option Shares as set forth on Schedule B); and (B) a Share Transfer Form, insuring fee simple and/or leasehold title executed by each Option Holder (as applicableall such documents, collectively, the “Option Share Transfer Documents”);
(iii) to all real property and improvements comprising the Property a release in the name form of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances Exhibit B executed by each Seller (collectively, the “Title PoliciesSeller Releases”);
(kiv) The Operating Partnership an employment agreement, substantially in the respective forms agreed between the parties, as applicable, executed by Agoda Thailand and [***] (collectively, the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii“Employment Agreements”);
(mv) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects resignations effective as of each of their respective representations and warranties in this Agreement at the Closing Date (except of each director and officer of each Acquired Company as the Purchasers may have requested in writing prior to the extent that any representation or warranty speaks as Closing Date, with exception of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects)the persons set forth on Schedule E;
(nvi) Any booksa certificate in the form of Exhibit C of the secretary or assistant secretary (or equivalent officer, records as applicable) of each Acquired Company dated as of the Closing Date and Organizational Documents attaching with respect to each Acquired Company (A) the Acquired Company’s charter and all amendments thereto, certified by the Secretary of State (or equivalent) of the jurisdiction of the Acquired Company’s organization not more than five business days prior to the Closing Date, (B) the Acquired Company’s bylaws (or equivalent) and all amendments thereto and (C) a certificate of good standing (or equivalent) of the Acquired Company certified by the Secretary of State (or equivalent) of the jurisdiction of the Acquired Company’s organization, where applicable, and issued not more than five business days prior to the Closing Date; (D) all resolutions of the board of directors or other authorizing body (or a duly authorized committee thereof) of the Acquired Companies relating to Contributor that are in this Agreement and the possession transactions contemplated by this Agreement; and (E) incumbency and signatures of Contributor or which can be obtained through Contributor’s reasonable effortsthe officers of the Company executing any agreement contemplated by this Agreement;
(ivii) All documents a receipt for the Initial Purchase Price, less the Escrow Amount, in a form reasonably required by a Lender satisfactory to the Purchasers;
(viii) an escrow agreement in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as of Exhibit C D (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly the “Escrow Agreement”) executed by Sellers’ Representative and JPMorgan Chase Bank, N.A. (the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.“Escrow Agent”);
Appears in 1 contract
Closing Deliveries. On A. At the Closing DateClosing, the parties Seller shall makedeliver to Purchaser, executeexecuted and acknowledged, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingas applicable:
(a) i. The Contribution and Assumption Agreement Deeds;
ii. A general ▇▇▇▇ of sale for the Personal Property, in the form attached hereto of Exhibit 8(A)(ii), conveying as Exhibit Bmore particularly set forth therein, to Purchaser all of Seller’s right, title and interest in and to the Personal Property;
(b) The OP Agreement iii. An assignment and assumption, in the form of Exhibit 8(A)(iii), which provides for, as more particularly set forth therein, the assignment by Seller of all of Seller’s right, title and interest as landlord in and to the Leases and the Articles;
assumption by Purchaser of all of Seller’s obligations as landlord under the Leases arising from and after the Closing Date (c) The Amendment or other evidence the “Assignment and Assumption of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2Leases”);
iv. An estoppel certificate from the Condominium Board pursuant to Section 2.2.2.4 of the By-Laws (fthe “Condominium Estoppel”): (1) The release executed by Operating Partnership setting forth the date and amounts to which Common Charges and any additional Common Charges (including Special Assessments) have been paid, and the Company in favor amount of any unpaid indebtedness owed under the Condominium Documents and (2) acknowledging that there are not, to the best knowledge of the employees Condominium Board, any uncured defaults or violations by any Unit owner under the Condominium Documents or specifying any defaults or violations if any are claimed;
v. Executed originals of all Leases, Brokerage Agreements and Affiliates Surviving Contracts, or copies thereof to the extent executed originals thereof are not in Seller’s or property manager’s possession;
vi. A certification of nonforeign status, in form required by Internal Revenue Code (the Supervisor “Code”) Section 1445 and the regulations issued thereunder;
vii. Notice letters to the Tenants, in the form attached hereto as of Exhibit E8(A)(vii) (the “Tenant Notice Letters”), to be prepared by Purchaser;
viii. The Tenant Estoppels (gas hereinafter defined) A copy of to the most recent as-built survey of the Property, if anyextent delivered under Article 10 hereof;
ix. A Real Property Transfer Tax Return with respect to the New York City Real Property Transfer Tax (h) Any other documents that are the “RPT Form”);
x. A New York State Real Estate Transfer Tax Return and Credit Line Mortgage Certificate with respect to the New York State Real Estate Transfer Tax (the “Form TP-584”);
xi. A New York State Real Property Transfer Report Form RP-5217 NYC (the “RP-5217”);
xii. A Department of Housing Preservation and Development Affidavit in Lieu of Registration Statement (the possession “Non-Multiple Dwelling Affidavit”);
xiii. Evidence of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assignauthority, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens good standing (other than the Permitted Encumbrancesif applicable) and effectuate due authorization of Seller to enter into the transactions contemplated herebywithin transaction and to perform all of its obligations hereunder, including, without limitation, the execution and only delivery of all of the closing documents required by this Agreement, and setting forth such additional facts, if any, as may be needed to show that the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases transaction is duly authorized and space leases, bills of sale, general assignments is in conformity with Seller’s organizational documents and all state applicable laws and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company Insurer to issue omit all exceptions regarding Seller’s standing, authority and authorization;
xiv. To the extent in Seller’s or its property manager’s possession or control (a) those transferable licenses and permits, authorizations and approvals pertaining to the Operating Partnership Premises which are not posted at the Premises, and (b) all transferable guarantees and warranties which Seller has received in connection with any work or its Subsidiary, effective as of services performed or equipment installed in and improvements to the Premises;
xv. To the extent available at Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto documentation as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by the Purchaser to calculate the Overage Rent due and owing after the Closing or if not available then Seller will deliver same within a Lender in connection with reasonable time following the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement Closing;
xvi. A title affidavit in substantially the form attached hereto as Exhibit C 8(A)(xvi) (unless the “Title Affidavit”);
xvii. A closing statement (the “Closing Statement”);
xviii. Keys to locks at the Property in the possession or control of Seller or its property manager; and
xix. The Tenant Deposits (hereinafter defined) held by Seller in the form of cash, at Seller’s option, either (i) in the form of a cashier’s check issued by a bank reasonably acceptable to Purchaser, or (ii) as part of an adjustment to the Purchase Price. In the event one or more Tenant Deposits are in the form of a letter of credit, then Seller shall deliver at Closing (subject to the following sentence) the original letter(s) of credit with all amendments thereto (collectively, the “Letters of Credit”), together with documentation sufficient to cause the Letters of Credit to be transferred or assigned to Purchaser, or, with respect to any of the Letters of Credit that are not transferable, replaced, upon approval thereof by the issuer of the letter(s) of credit. Seller shall use commercially reasonable efforts to cause the Letters of Credit that are not transferable to be re-issued to Purchaser promptly following the Closing Date, it being understood that the re-issuance of such Existing Loans Letters of Credit shall not be a condition precedent to Purchaser’s obligation hereunder. Any fees levied by the issuer of any of the Letters of Credit shall be paid by Purchaser, which obligation shall survive the Closing as to those non-transferable Letters of Credits which are repaid not transferred to Purchaser at the Closing (collectively, the “Non-Transferable Letters of Credit”). Seller shall cooperate with Purchaser post-closing to transfer the Non-Transferable Letters of Credit, and until the Non-Transferable Letters of Credit shall be transferred to Purchaser or prior replaced, as aforesaid, Purchaser may request Seller to draw upon the same and deliver the proceeds to Purchaser or return the same to the applicable Tenant, in each case upon Purchaser’s written instruction, and Purchaser shall indemnify, defend and hold Seller harmless from any liability, claims, actions, actual damages, judgments, penalties, actual costs, and reasonable expenses, including reasonable attorneys’ fees, related to any claims arising from any such draw by Seller;
xx. An assignment and assumption, in the form of Exhibit 8(A)(xx), which provides for, as more particularly set forth therein, the assignment by Seller of all of Seller’s right, title and interest in and to the Surviving Contracts and the assumption by Purchaser of all of Seller’s obligations under the Surviving Contracts arising from and after the Closing Date (the “Assignment and Assumption of Surviving Contracts”);
xxi. A Form 1099-S Statement for Recipient of Proceeds from Real Estate Transaction;
xxii. The No-Action Letter (hereinafter defined);
xxiii. Any SNDAs, if obtained pursuant to Section 10(B) hereunder; and
xxiv. Such other instruments or documents that by the terms of this Agreement are to be delivered by Seller at Closing or that may be reasonably necessary to effect the consummation of the transactions which are the subject of this Agreement.
B. At the Closing), Purchaser shall deliver to Seller, executed and acknowledged, as applicable:
i. The balance of the Purchase Price (i.e., the Purchase Price, less the Deposit and the interest earned thereon) and all other amounts payable by Purchaser to Seller at the Closing pursuant to this Agreement;
ii. The Assignment and Assumption of Leases;
iii. The Tenant Notice Letters;
iv. The RPT Form;
v. The RP-5217;
vi. The Form TP-584;
vii. The Assignment and Assumption of Surviving Contracts;
viii. Evidence of authority, good standing (if applicable) and due authorization of Purchaser to enter into the within transaction and to perform all of its obligations hereunder, including, without limitation, the execution and delivery of all of the closing documents required by this Agreement, and setting forth such additional facts, if any, as may be needed to show that the transaction is duly authorized and is in each case, duly executed by the conformity with Purchaser’s organizational documents and applicable partylaws;
ix. The Closing Statement; and
(px. Such other instruments or documents that by the terms of this Agreement are to be delivered by Purchaser at Closing or that may be reasonably necessary to effect the consummation of the transactions which are the subject of this Agreement.
C. Subject to Section 16(D) An assignment of Excluded Assets from the Companyhereof, the Operating Partnership or a Subsidiaryacceptance of the Deeds by Purchaser shall be deemed to be full performance of, as applicableand discharge of, every agreement and obligation on Seller’s part to be performed under this Agreement, except for such matters which are expressly stated in favor of Contributorthis Agreement to survive the Closing, to achieve the distributions contemplated limit of such survival, and any ongoing obligations under Section 1.4the agreements and instruments of assignment delivered at Closing.
D. Seller shall cooperate with Purchaser, if applicableat no out-of-pocket cost to Seller, to request reliance letters from IVI Assessment Services, Inc. with respect to the Phase I Environmental Site Assessment and the Property Condition Report, each dated May 2, 2013; provided, however, that the failure of Purchaser to obtain any such reliance letters shall not constitute a default by Seller under this Agreement or have any consequence to Seller under this Agreement, and the delivery of any such reliance letters shall not be a condition to Purchaser’s obligation to consummate the Closing.
Appears in 1 contract
Sources: Sale Purchase Agreement (American Realty Capital New York Recovery Reit Inc)
Closing Deliveries. On (a) At the Closing, the Sellers will deliver or cause to be delivered to the Purchaser:
(i) certificates representing the Shares, duly endorsed in blank in form reasonably satisfactory to the Purchaser for transfer, including the original of the resolution of the board issuing the respective certificates;
(ii) the duly signed share ledger of the Company showing the registration of Purchaser as sole shareholder of the Company and a resolution of the board of directors of the Company approving the transfer of all of the Shares to Purchaser;
(iii) a certificate, dated as of the Closing Date, executed by each Seller confirming the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through satisfaction of the Power of Attorney or the Attorney-in-Fact (described conditions specified in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:Sections 6.1;
(aiv) The Contribution and Assumption Agreement executive agreements in the form attached hereto as of Exhibit B;
(b2.6(a)(iv) The OP Agreement and the Articles;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances each Executive (collectively, the “Title PoliciesExecutive Agreements”)) and a waiver duly signed by each Executive waiving any and all claims they may have against the Acquired Companies, including all severance and other payments and benefits related to the termination of their services under existing contracts or under any applicable law;
(kv) The Operating Partnership resignations effective as of the Closing Date of each director and officer of each Acquired Company (solely with respect to their officer and director designations but, unless otherwise required by Purchaser, not from employment by the Company on Acquired Companies) as the one hand and Contributor on the other hand shall provide Purchaser may have requested in writing prior to the other Closing Date;
(vi) documentation, reasonably satisfactory to the Purchaser, evidencing that each Seller and each Executive, if not signing personally as an individual, were properly represented by a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery duly authorized Person when entering into and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of when consummating this Agreement, any related documents including, where required, resolutions of the appropriate body of an entity, certificates of officers or secretaries, copies of corporate documents, and the documents listed in this Section 2.3excerpts from registers;
(lvii) Any Tenant Estoppelsdocumentation, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, reasonably satisfactory to the extent obtained by Purchaser, evidencing the Contributor full history of the Shares and the full unencumbered ownership of the Sellers in accordance with Section 2.1(b)(viii)the Shares;
(mviii) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects two signed copies of each of their respective representations and warranties in this Agreement at the Escrow Agreements, including all documentation relating to the Sellers the Escrow Agent may require for the purpose of his duties under money laundering Laws; and
(ix) a receipt for the Closing Date (except Consideration in form reasonably satisfactory to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);Purchaser.
(nb) Any booksAt the Closing, records and Organizational Documents relating the Purchaser will deliver or cause to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;delivered:
(i) All documents reasonably required to the Sellers the Closing Consideration (deducting the amounts set out in Section 2.4) as set out in Exhibit 2.2 by a Lender in connection with wire transfer of immediately available funds to the assumption or prepayment of an Existing Loan accounts specified by the Sellers at or least five business days prior to the Closing and Date;
(ii) to the Existing Loan Release or Sellers a certificate, dated as of the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing)Closing Date, as applicable, in each case, duly executed by the applicable partyPurchaser confirming the satisfaction of the conditions specified in Sections 6.2;
(iii) documentation, reasonably satisfactory to the Sellers, evidencing that Purchaser and the Parent were properly represented by a duly authorized Person when entering into and when consummating this Agreement, including, where required, resolutions of the appropriate body of an entity, certificates of officers or secretaries, copies of corporate documents, and excerpts from registers;
(iv) two signed copies of each of the Escrow Agreements, including all documentation relating to the Purchaser the escrow agent may require for the purpose of his duties under money laundering Laws; and
(pv) An assignment to the escrow agent pursuant to the Escrow Agreements the amounts that are to be deposited in escrow accounts at Closing according to Section 2.4 by wire transfer of Excluded Assets from immediately available funds; and
(vi) to the Company, Sellers-IV the Operating Partnership or a Subsidiary, as applicable, amounts that are to be deposited in favor the Sellers-IV Account by wire transfer of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableimmediately available funds.
Appears in 1 contract
Sources: Stock Purchase Agreement (Valeant Pharmaceuticals International, Inc.)
Closing Deliveries. On the Closing Date, the The parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through take the Power of Attorney or the Attorney-in-Fact (described actions set forth in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered Section 2.4 at the Closing shall be the following:Closing.
(a) The Contribution and Assumption Agreement Buyer will deliver (i) to the Escrow Agent, $1,500,000 by wire transfer of immediately available federal funds to the account designated in the form attached hereto as Exhibit B;Escrow Agreement for purposes of satisfying amounts owed to the Buyer Indemnified Parties pursuant to Section 8.1 (the “Indemnity Escrow Account”), (ii) to the Sellers, (A) the Cash Purchase Price, less the aggregate amount delivered to the Escrow Agent per clause (i) by wire transfer of immediately available federal funds to the accounts designated in writing to the Buyer not fewer than two Business Days prior to the scheduled Closing Date and (iii) the Note.
(b) The OP Agreement Buyer and the Articles;Sellers will execute one or more bills of sale, in a form reasonably acceptable to the parties, with respect to all personal property included in the Acquired Assets.
(c) The Amendment Buyer and the Sellers will execute an Assignment of Trademarks in a form registrable or other evidence of recordable in the transfer of OP Units United States Patent and Trademark Office or applicable foreign offices to Contributor and by Contributor the extent necessary to its Participants;assign the trademarks included in the Acquired Assets in a form reasonably acceptable to the parties.
(d) Evidence of The parties shall execute such other instruments as shall be reasonably requested by the DTC Registered REIT Stock, which shall bear substantially the legend set forth Buyer to vest in the Articles or a written statement of information that Buyer title in and to the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth Acquired Assets, in accordance with the Articles on request and without charge;provisions hereof.
(e) An affidavit from Contributor (or, if Contributor is The Buyer and the Sellers will execute an instrument of assumption in a disregarded entity within form reasonably acceptable to the meaning of Section 1.1445-2(d)(2)(iii), parties with respect to the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);Assumed Liabilities.
(f) The release executed by Operating Partnership parties will deliver the various certificates, instruments and the Company in favor documents required of the employees each of them under Sections 6 and Affiliates of the Supervisor in the form attached hereto as Exhibit E;7.
(g) A copy The Sellers shall deliver to Buyer a letter, in form and substance reasonably satisfactory to Buyer, signed by Ocean Associates in which Ocean Associates acknowledges and agrees that the Buyer and its Affiliates have and shall have no liability to Ocean Associates whatsoever with respect to any liability that any of the most recent as-built survey of Sellers may have to Ocean Associates and that Ocean Associates has no rights whatsoever to any equipment or other asset included in the Property, if any;Acquired Assets.
(h) Any other documents that are in The Sellers shall deliver to the possession of Contributor Buyer originals or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear copies of all Liens (books and records relating to the Acquired Assets. For the avoidance of doubt, such books and records shall not include all corporate seals, minute books, charter documents, corporate stock record books, registers of other than securities, copies of original tax records of the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitationSellers, and such other books and records as pertain only to the extent applicableorganization, grant deeds (if transferred directly)existence, assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation share capitalization or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as debt financing of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableSellers.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cellu Tissue Holdings, Inc.)
Closing Deliveries. On (a) At the Closing DateClosing, the parties Seller shall make, execute, acknowledge and deliver, or cause deliver to be made, executed, acknowledged and delivered, through the Power Purchaser:
(i) the Acquisition Assets;
(ii) such bills of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement sale and other legal documents instruments of sale, transfer, conveyance, assignment and items required delivery covering the Acquisition Assets or any part thereof, executed by the Seller or other appropriate parties, as the Purchaser may reasonably require to be executed or delivered in connection with assure the Closing (collectively full and effective sale, transfer, conveyance, assignment and delivery to the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out Purchaser of the intention Acquisition Assets free and clear of this Agreement any Encumbrances and the other transactions contemplated to take place in connection therewith. The Closing Documents rights and other items to be delivered at the Closing shall be claims of third parties including, but not limited to, the following:
(a1) The Contribution a b▇▇▇ of sale, general assignment and Assumption Agreement conveyance by the Seller transferring to the Purchaser good and marketable title to all of the Acquisition Assets in a form satisfactory to the form attached hereto as Exhibit BPurchaser;
(b2) The OP Agreement all documents, agreements and instruments necessary to effectuate the Articles;
assignment of Equity Interests, in form and substance satisfactory to the Purchaser (c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2“Equity Assignment Documents”);
(f3) The release executed by Operating Partnership and all documents in a form satisfactory to the Company in favor Purchaser required for the assignment of the employees Seller’s rights under all registrations, Assigned Permits and Affiliates licenses (to the extent permitted by law), equipment or motor vehicle leasing agreements, motor vehicle and rolling stock titles, rights under sales and/or purchase orders and of the Supervisor in the form attached hereto as Exhibit ESeller’s rights under all other Assigned Contracts;
(g4) A copy originals of all of the most recent as-built survey Assigned Leases, Assigned Contracts, and Assigned Permits; and
(5) such other instruments of transfer and assignment in respect of the PropertyAcquisition Assets as the Purchaser shall reasonably require and as shall be consistent with the terms and provisions of this Agreement.
(iii) all waivers, if anyconsents, orders, permit transfers and approvals required in connection with (i) the execution, delivery and performance of this Agreement and (ii) the assignment and transfer of the Acquisition Assets, including the Assigned Contracts, the Assigned Leases and the Assigned Permits, financial assurances and any other rights and benefits in connection with the Transactions, or necessary for the consummation of the Transactions, and all other agreements necessary for the Purchaser to conduct the Business as it is currently being conducted by the Seller, including without limitation those consents listed on Schedule 5.3 hereto in form satisfactory to the Purchaser;
(hiv) Any documentary evidence that all Encumbrances on the Acquisition Assets have been released;
(v) evidence of termination of (1) that certain Employment Agreement, dated April 26, 2005, between H▇▇▇▇▇▇▇ Technical and C▇▇▇ ▇▇▇▇▇▇▇▇ and (2) that certain Employment Agreement, dated November 1, 2007, between H▇▇▇▇▇▇▇ Technical and D▇▇▇▇▇ ▇▇▇▇;
(vi) Releases by and between (1) the Purchaser and the Acquired Entities on the one hand, and each of D▇▇▇▇▇ ▇▇▇▇, D▇▇▇▇▇ ▇▇▇▇ ▇▇, the Dror Family Trust, D▇▇▇▇▇ ▇▇▇▇ ▇▇ 1976 Trust, D▇▇▇▇▇ ▇▇▇▇ ▇▇ Trust of 1998, C▇▇▇ ▇▇▇▇▇▇▇▇, R▇▇▇ ▇▇▇▇▇▇▇▇▇▇, S▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, J▇▇▇ ▇▇▇▇▇ III, C▇▇▇▇▇▇ ▇▇▇▇▇▇, American International Industries, Inc., Vision Capital Advisors, LLC and Vision Opportunity Master Fund, Ltd., on the other documents that are hand, and (2) C▇▇▇ ▇▇▇▇▇▇▇▇, R▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and J▇▇▇ ▇▇▇▇▇ III on the one hand, and each of D▇▇▇▇▇ ▇▇▇▇, D▇▇▇▇▇ ▇▇▇▇ ▇▇, the Dror Family Trust, D▇▇▇▇▇ ▇▇▇▇ ▇▇ 1976 Trust, D▇▇▇▇▇ ▇▇▇▇ ▇▇ Trust of 1998, S▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, C▇▇▇▇▇▇ ▇▇▇▇▇▇, American International Industries, Inc., Vision Capital Advisors, LLC and Vision Opportunity Master Fund, Ltd., on the other hand, each in the possession forms attached as Exhibit B hereto.
(vii) Landlord Estoppel Certificate for the Lease Agreement between H▇▇▇▇▇▇▇ Technical and K▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and D▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇;
(viii) all the Assigned Books and Records and other data relating to the Acquisition Assets and the Business;
(ix) certificates representing the capital stock of Contributor each of the Acquired Entities, duly endorsed for transfer to the Purchaser or accompanied by duly executed assignment documents, which can be obtained through Contributor’s reasonable efforts which are reasonably requested by shall transfer to the Company or Purchaser good and valid title to the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directlycapital stock, free and clear of all Liens Encumbrances;
(x) an assignment and assumption of the Leased Premises, executed by Seller and any other than appropriate parties, as the Permitted Purchaser may reasonably require to assure the full and effective assignment to the Purchaser of the Leased Premises free and clear of all Encumbrances;
(xi) a certificate from an officer of the Seller, in a form mutually acceptable to the Parties hereto, certifying (i) the bylaws of the Seller, (ii) the resolutions of the directors and stockholders of the Seller authorizing and approving the execution and delivery of this Agreement, including the exhibits and schedules hereto, and the consummation of the Transactions and (iii) the incumbency and signatures of the officers of the Seller executing the applicable transaction documents;
(xii) certified copy of the Articles of Incorporation/Certificate of Formation (as applicable) and effectuate Certificates of Existence/Good Standing issued by the transactions contemplated herebystate of or organization for each of the Seller and the Acquired Entities, including, without limitation, and only dated no more than five (5) days prior to the extent applicableClosing Date, grant deeds reflecting that the Seller and the Acquired Entities are duly organized, validly existing and in good standing;
(if transferred directly), assignments xiii) the resignations of ground leases, air space leases all of the officers and space leases, bills directors of the Acquired Entities;
(xiv) such other separate instruments of sale, general assignments assignment or transfer reasonably required by Purchaser; and
(xv) such other documents, certificates and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which instruments reasonably necessary to consummate the Operating Partnership is required to file its partnership documentation or Transactions.
(b) At the recording of deeds or other Property Interest transfer documents is required;Closing, the Purchaser shall deliver:
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectivelyparties listed on Schedule 2.3, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed Purchase Price set forth in this Section 2.3;
(lii) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by Seller, such other documents, certificates and instruments reasonably necessary to consummate the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableTransactions.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hammonds Industries, Inc.)
Closing Deliveries. On At the Closing DateClosing, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, delivered through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereofsee Section 6.1 below), the OP Agreement and other legal documents and other items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The , which Closing Documents and other items to be delivered at the Closing shall be include, without limitation, the following:
(a) The Contribution Transfer and Assumption Agreement in the form attached hereto as Exhibit BA;
(b) The OP Agreement All books and records, title insurance policies, leases, lease files, contracts and other indicia of Transferor’s ownership with respect to the Articles;
Membership Interest (c) The Amendment or other evidence and any subsidiary of the LLC) necessary to affect the transfer of OP Units to Contributor under Section 1.1 and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the Transferor’s possession of Contributor or which can be obtained through Contributorthe Transferor’s reasonable efforts which are along with appropriate evidence of Transferor’s assignment thereof;
(c) An affidavit from the Transferor, stating under penalty of perjury, the Transferor’s United States Taxpayer Identification Number and that the Transferor is not a foreign person pursuant to Section 1445(b)(2) of the Code and a comparable affidavit satisfying California and any other withholding requirements;
(d) Any other documents reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directlyTransferor’s Membership Interest, free and clear of all Liens (other than or, if the Permitted Encumbrances) Operating Partnership elects, the Property directly and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, quitclaim deeds and/or grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments assignments, and all state and local transfer Tax tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds the Transfer and Assumption Agreement or deed or other Property Interest Interests transfer documents is required;; and
(ie) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed If requested by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) Transferor of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Digital Realty Trust, Inc.)
Closing Deliveries. On At the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingClosing:
(a) The Contribution Seller will deliver the following to Buyer or its designees:
(i) All consents, waivers or approvals obtained by Parent or Seller with respect to the consummation of the transactions contemplated by this Agreement and Assumption Agreement in the form attached hereto as Exhibit BAncillary Agreements, to the extent specifically required hereunder and thereunder, including Seller’s Required Consents;
(bii) The OP Agreement and the Articles;
(c) The Amendment or other evidence Counterparts of the transfer of OP Units to Contributor and Deeds, duly executed by Contributor to Seller (or its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2relevant Affiliate);
(fiii) The release Counterparts executed by Operating Partnership Seller to the ▇▇▇▇ of Sale;
(iv) Counterparts executed by Seller to an Assignment and the Company in favor Assumption of Pipeline Easement;
(v) A FIRPTA Certificate under Section 1445(b)(2) of the employees and Affiliates of the Supervisor Code, substantially in the form attached hereto as of Exhibit EB hereto;
(gvi) A copy Counterparts executed by Seller to the Assignment of the most recent as-built survey of the Property, if anyTransferred Intellectual Property Agreement;
(hvii) Any other documents that are in Counterparts executed by Seller to one or more Assignment and Assumption of Easement Agreements;
(viii) Counterparts executed by Seller to the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested PJM Transition Services Agreement;
(ix) Counterparts executed by Seller to the Transition Services Agreement;
(x) Counterparts executed by The Dayton Power and Light Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens Tax Allocation Agreement;
(other than the Permitted Encumbrancesxi) and effectuate the transactions contemplated hereby, including, without limitation, and only Counterparts executed by Seller to the extent applicable, grant deeds Assignment and Assumption of Interconnection Service Agreements;
(if transferred directly), assignments xii) Counterparts executed by Seller to the Assignment and Assumption of ground leases, air space leases and space leasesAuxiliary Power Agreements;
(xiii) The Records; and
(xiv) Such other deeds, bills of sale, general assignments assignments, agreements, documents, instruments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is writings as are required to file be delivered by Seller at or prior to the Closing pursuant to the terms of this Agreement, including the certificate contemplated by Section 6.02(c), or as are otherwise reasonably required in connection herewith.
(b) Buyer will deliver the following to Seller or its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;designees:
(i) [A bargain and sale deed in substantially The Estimated Purchase Price by wire transfer of immediately available funds to the form attached as Exhibit F, account or in such form as is customary accounts specified in the applicable jurisdiction which the Title Company shall require in order to issue the Title PoliciesEstimated Statement;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name Counterparts of the Operating Partnership Deeds, duly executed by Buyer (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”if required);
(kiii) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide A counterpart executed by Buyer to the ▇▇▇▇ of Sale;
(iv) A counterpart executed by Buyer to an Assignment and Assumption of Pipeline Easement;
(v) A counterpart executed by Buyer to the Assignment of Transferred Intellectual Property Agreement;
(vi) Counterparts executed by Buyer to one or more Assignment and Assumption of Easement Agreements;
(vii) Counterparts executed by Buyer to the PJM Transition Services Agreement;
(viii) Counterparts executed by Buyer to the Transition Services Agreement;
(ix) Counterparts executed by Buyer to the Property Tax Allocation Agreement;
(x) Counterparts executed by Buyer to the Assignment and Assumption of Interconnection Service Agreements;
(xi) Counterparts executed by Buyer to the Assignment and Assumption of Auxiliary Power Agreements; and
(xii) Such other a certified copy deeds, bills of all appropriate corporate resolutions sale, assignments, agreements, documents, instruments and writings as are required to be delivered by Buyer at or partnership or limited liability company actions authorizing prior to the execution, delivery and performance by Closing Date pursuant to the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) terms of this Agreement, any related documents and including the documents listed in this Section 2.3;
(l) Any Tenant Estoppelscertificate contemplated by Section 6.03(c), any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents otherwise reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableherewith.
Appears in 1 contract
Closing Deliveries. On 6.2.1 At the Closing DateClosing, the parties Transferor shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingAcquiror:
(a) The Contribution A fully executed ▇▇▇▇ of Sale and Assignment and Assumption Agreement in the form attached hereto as of Exhibit BC to this Agreement (the "▇▇▇▇ of Sale") --------- ------------ conveying to Acquiror all personal property to be acquired by Acquiror pursuant to this Agreement and providing for (i) the assignment to Acquiror of the contract rights, and all other intangible personal property included in the Purchased Assets and (ii) Acquiror's assumption of the Assumed Liabilities;
(b) The OP A duly authorized and executed Escrow Agreement and the Articlesrequired by Section 3.4;
(c) The Amendment or other evidence A Certificate of an officer of Transferor certifying to the attached resolutions of the transfer board of OP Units to Contributor directors and by Contributor to its Participantsshareholders, if the board of directors deems it necessary, of Transferor authorizing this transaction;
(d) Evidence A Certificate of an authorized officer of the DTC Registered REIT Stock, which shall bear substantially Transferor certifying as to the legend set forth in accuracy of the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request Transferor's representations and without chargewarranties under Section 7.1;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within All Consents necessary to permit Transferor to transfer the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)Purchased Assets to Acquiror;
(f) The release executed by Operating Partnership All necessary documents to transfer and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit Eassign any Intellectual Property which is being transferred pursuant to this Agreement;
(g) A copy true and complete listing of the most recent as-built survey of the Property, if any;Purchased Assets; and
(h) Any other documents that are in A true and complete listing of the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;Assumed Liabilities.
(i) [A bargain true and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]complete listing of all Consents required by Section 4.2.1.
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of 6.2.2 At the Closing, with respect Acquiror shall deliver, or cause to the Propertybe delivered, either to Transferor:
(ia) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name A counterpart copy of the Operating Partnership (or a Subsidiary thereof▇▇▇▇ of Sale, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)executed by Acquiror;
(kb) The Operating Partnership A counterpart copy of the Escrow Agreement, executed by Acquiror;
(c) A Certificate of an authorized officer of Acquiror certifying attached resolutions of the boards of directors and shareholders of Acquiror authorizing this transaction;
(d) A Certificate of an authorized officer of the Company on the one hand and Contributor on the other hand shall provide Acquiror certifying as to the other a certified copy accuracy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery Acquiror's representations and performance by warranties under Section 7.2;
(e) A Certificate of an authorized officer of the Operating Partnership Acquiror certifying the number of shares that Transferor shall be entitled to in accordance with the terms and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) conditions of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(pf) An assignment A counterpart copy of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, necessary documents to achieve the distributions contemplated under Section 1.4, if applicabletransfer and assign any Intellectual Property which is being transferred pursuant to this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dtomi Inc)
Closing Deliveries. The parties shall take such actions and execute such documents as are required to complete the transactions contemplated by this Agreement at the Closing, including those set forth below: TUCOWS’ Closing Deliveries. On or before the Closing Date, the parties TUCOWS shall make, execute, acknowledge and deliver, deliver or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required delivered to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be HOSTOPIA the following:
(a) The Contribution and Assumption Agreement a certificate of good standing or similar certificate with respect to TUCOWS, dated as of the Closing Date, such certificate to be issued by the Province of Nova Scotia, which certificate shall indicate that TUCOWS is in the form attached hereto as Exhibit Bgood standing;
(b) The OP Agreement a general conveyance and assumption of liabilities agreement substantially in the Articlesform of Schedule F duly executed by TUCOWS, together with such other bills of sale or instruments of conveyance, assignment or transfer as may be reasonably required by HOSTOPIA, including assignment of the End-User Agreements in form acceptable to HOSTOPIA;
(c) The Amendment or other evidence consents to the assignment of the transfer of OP Units any contract under which consent is required executed by all persons whose consent is required in form acceptable to Contributor and by Contributor to its ParticipantsHOSTOPIA;
(d) Evidence a certificate of the DTC Registered REIT Stock, which shall bear substantially President or other senior officer of TUCOWS dated as of the legend set forth Closing Date in the Articles or a written statement form of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without chargeSchedule G;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within certificate of the meaning Secretary or other officer of Section 1.1445-2(d)(2)(iii), TUCOWS in the sole owner form of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)Schedule H;
(f) The release the shared hosting marketing agreement (the “Shared Hosting Marketing Agreement”) duly executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form TUCOWS attached hereto as Exhibit E;Schedule I.
(g) A copy of the most recent as-built survey of the Property, if anytrade-▇▇▇▇ license agreement (“Trade-▇▇▇▇ License Agreement”) duly executed by TUCOWS attached hereto as Schedule J;
(h) Any other documents that are in the license agreement relating to Net Identity Services (“Net Identity License Agreement”) attached hereto as Schedule K.
(i) good and marketable title to and exclusive possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directlyPurchased Assets, free and clear of any and all Liens Encumbrances; and
(other than the Permitted Encumbrancesj) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant all deeds (if transferred directly), assignments of ground leases, air space leases and space leasesconveyance, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit Fassurances, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiarytransfers, effective as of the Closingassignments, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnershipconsents, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insuranceother agreements, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks instruments as of an earlier date, in which case it must may be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender HOSTOPIA to complete the transactions provided for in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablethis Agreement.
Appears in 1 contract
Closing Deliveries. On Administrative Agent shall have received each of the following documents, instruments and agreements, each of which shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and each Bank and each of which shall, unless otherwise indicated, be dated the Closing Date:
(i) a Note payable to the order of each Bank, each in the amount of such Bank's Commitment, duly executed by Borrower;
(ii) a Facility Guaranty for the benefit of each Bank, duly executed by Guarantor;
(iii) supplements to each Mortgage, in form and substance satisfactory to Administrative Agent, duly executed and acknowledged by Borrower;
(iv) a copy of the Certificate of Incorporation, and all amendments thereto, of each of Borrower or Guarantor accompanied by a certificate that such copy is true, correct and complete, and dated within 37 44 ten (10) days of the Closing Date, issued by the parties shall makeappropriate Governmental Authority of the State of Delaware and accompanied by a certificate of the Secretary of each of Borrower and Guarantor that such copy is true, executecorrect and complete on the Closing Date;
(v) a copy of the Bylaws, acknowledge and deliverall amendments thereto, or cause to be madeof each of Borrower and Guarantor, executedaccompanied by a certificate of the Secretary of each of Borrower and Guarantor that such copy is true, acknowledged correct and delivered, through complete as of the Power of Attorney or the Attorney-in-Fact date hereof;
(described in Article 5 hereof), the OP Agreement vi) certain certificates and other legal documents issued by the appropriate Governmental Authorities (A) of the State of Delaware relating to the existence and items required good standing with respect to the payment of franchise and similar Taxes of each of Borrower and Guarantor and (B) of the jurisdictions listed on Schedule 4 hereto, to the effect that Borrower is duly qualified to do business, and is in good standing, in such jurisdictions;
(vii) a certificate of incumbency of all officers of each of Borrower and Guarantor who will be authorized to execute or attest to any Loan Paper, dated the date hereof, executed or delivered in connection with by the Closing Secretary of each of Borrower and Guarantor;
(collectively viii) copies of resolutions approving the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out Loan Papers and authorizing the intention of transactions contemplated by this Agreement and the other transactions contemplated Loan Papers, duly adopted by the Board of Directors of each of Borrower and Guarantor, accompanied by certificates of the Secretary of each of Borrower and Guarantor that such copies are true and correct copies of resolutions duly adopted at a meeting of or (if permitted by applicable Law and, if required by such Law, by its Certificate of Incorporation or Bylaws) by the unanimous written consent of the Board of Directors of each of Borrower and Guarantor, and that such resolutions constitute all the resolutions adopted with respect to take place such transactions, have not been amended, modified, or revoked in connection therewith. The Closing Documents any respect, and other items to be delivered at are in full force and effect as of the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit Bdate hereof;
(bix) The OP a Notice of Final Agreement duly executed by Borrower and the ArticlesGuarantor;
(cx) The Amendment or other evidence an opinion of Fulbright & Jawo▇▇▇▇ ▇.▇.P., counsel for Borrower and Guarantor, dated the date hereof, favorably opining as to the due authority, execution, and delivery of the transfer of OP Units to Contributor and Loan Papers by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2);
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.Borrower
Appears in 1 contract
Closing Deliveries. On At the Closing, - 42 - 49
(a) the Sellers and Richfield shall deliver or cause to be delivered to the Purchaser:
(i) a certificate or certificates evidencing all of the Richfield Shares, duly endorsed for transfer with all necessary transfer stamps affixed;
(ii) the Officer's Certificates required by Sections 7.1 and 7.5;
(iii) copies of all consents and approvals required by Sections 7.3, 7.4 and 7.12;
(iv) the Opinion of Counsel required by Section 7.6;
(v) the Employment Agreements required by Section 7.7;
(vi) the counterpart signature page to the Shareholders' Agreement required by Section 7.9;
(vii) the Subordination Agreement required by Section 7.10;
(viii) the Lease (executed by the landlord);
(ix) a certificate, signed by the secretary of Richfield, as to the articles of incorporation and by-laws of Richfield, the resolutions adopted by the board of directors and shareholders of Richfield in connection with this Agreement, the incumbency of certain officers of Richfield and the jurisdictions in which Richfield is qualified to conduct business, in form acceptable to the Purchaser;
(x) certificates issued by the appropriate governmental authorities evidencing the good standing, with respect to both the conduct of business and the payment of all franchise taxes, of Richfield as of a date not more than ten (10) days prior to the Closing Date, as a corporation organized under the parties shall makelaws of the State of Ohio and as a foreign corporation authorized to do business under the laws of the various jurisdictions where it is so qualified.
(xi) such other certified resolutions, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items certificates as are required to be executed delivered by the Sellers or delivered in connection with Richfield pursuant to the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention provisions of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;Agreement.
(b) The OP Agreement Purchaser shall deliver to the Sellers:
(i) the consideration (in the form of cash, AmeriPath Stock and Contingent Notes) required to be paid or delivered to each Seller at Closing in accordance with Section 1.1 (and Schedule 1.1 hereto).
(ii) the ArticlesOfficer's Certificate required by Section 8.1; and
(iii) the Employment Agreements required by Section 8.4;
(civ) The Amendment or other evidence of the transfer of OP Units to Contributor and Lease (executed by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2AmeriPath Ohio);
(fv) The release executed by Operating Partnership such other certified resolutions, documents and the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto certificates as Exhibit E;
(g) A copy of the most recent as-built survey of the Property, if any;
(h) Any other documents that are in the possession of Contributor or which can required to be obtained through Contributor’s reasonable efforts which are reasonably requested delivered by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only Purchaser pursuant to the extent applicable, grant deeds (if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially the form attached as Exhibit F, or in such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) provisions of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender in connection with the assumption or prepayment of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement in substantially the form attached hereto as Exhibit C (unless such Existing Loans are repaid at or prior to Closing), as applicable, in each case, duly executed by the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable.
Appears in 1 contract
Closing Deliveries. On the Closing Date(a) At Closing, the parties Seller shall make, execute, acknowledge and deliver, deliver to Purchaser or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out the intention of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents and other items to be delivered at the Closing shall be the followingEscrowee:
(ai) The Contribution and Assumption Agreement an Assignment of Limited Partnership Interest (respecting PREIT’s limited partnership interest in PRDB) executed by PREIT in the form attached as Exhibit C);
(ii) an Assignment of Membership Interest (respecting PREIT’s membership interest in PRDB General Partner executed by PREIT in the form annexed hereto as Exhibit D);
(iii) a special warranty deed to the PR Springfield East Interest duly executed by PR Springfield in the form attached hereto as Exhibit BD;
(biv) The OP Agreement and originals, or if originals are not available, copies of the ArticlesSpace Leases;
(cv) The Amendment or other evidence a duly executed certificate of Seller in the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend applicable form set forth in the Articles or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles on request and without charge;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section §1.1445-2(b)(2);
(fvi) The release realty transfer tax return(s) executed by Operating Partnership Seller;
(vii) estoppel certificates (each an “Estoppel Certificate” and collectively the Company “Estoppel Certificates”) from: (A) Target (as to the REA) in favor of the employees form and Affiliates of the Supervisor in substance which do not vary materially from the form attached hereto as Exhibit E;
H, (gB) A copy from the Major Tenants and three (3) of the most recent as-built survey remaining five (5) other Space Tenants of the Property, if any;
Property (hunless the lender under the Acquisition Loan shall require as a condition for the Acquisition Loan a greater number of estoppels in which event Seller shall provide the required number of estoppels said lender shall require) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directlycollectively “Estoppel Tenants”), assignments of ground leases, air space leases in form and space leases, bills of sale, general assignments and all state and local transfer Tax returns and any filings with any applicable governmental jurisdiction in substance which the Operating Partnership is required to file its partnership documentation or the recording of deeds or other Property Interest transfer documents is required;
(i) [A bargain and sale deed in substantially do not vary materially from the form attached annexed hereto as Exhibit F, or in as to any Space Tenant whose Space Lease provides for a different form of estoppel certificate, the form provided for by such form as is customary in the applicable jurisdiction which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating PartnershipSpace Lease, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurancefrom Bed, Bath and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);
(k) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributor) and Contributor (if so requested by the Operating Partnership or the Company) of this Agreement, any related documents and the documents listed in this Section 2.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true and correct only as of that earlier date and except for such representations and warranties that are qualified by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects);
(n) Any books, records and Organizational Documents relating to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender Beyond in connection with the assumption or prepayment of an Existing Loan at or prior to Closing Bed, Bath and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement Beyond Sublease, in substantially form and substance which does not vary materially from the form attached hereto as Exhibit C M. Notwithstanding the foregoing to the contrary, if the required Estoppel Certificates cannot be timely delivered, Seller may, but shall not be obligated to, adjourn the Closing for a period not to exceed thirty (unless such Existing Loans are repaid at 30) days, to obtain the required Estoppel Certificates. If Seller, after exercising or prior to Closingwaiving in writing its adjournment right set forth in this Section 13.3 (a)(vii), does not or cannot deliver the required Estoppel Certificates, Purchaser’s sole remedy shall be to terminate this Agreement and receive the return of the Deposit (or Letter of Credit or proceeds thereof) or to close notwithstanding the lack of the Estoppel Certificate(s) without any reduction of the Purchase Price and without any liability of Seller relative thereto. Notwithstanding anything contained herein to the contrary, Purchaser shall notify Seller upon the date which is three (3) Business Days following Purchaser’s receipt of executed Estoppel Certificates of Purchaser’s permitted objections to any such Estoppel Certificates. Purchaser’s failure to timely respond to Seller in accordance with the preceding sentence shall be deemed its approval of the Estoppel Certificate;
(viii) standard seller’s affidavits to the Title Company in such form as applicable, in each case, may be reasonably required by the Title Company;
(ix) a Waiver of Right of First Refusal with respect to the sale of the PR Springfield East Interest duly executed by Target in the applicable partyform attached as Exhibit H hereto;
(x) An Assignment and Assumption Agreement (respecting the Bed Bath & Beyond Sublease) duly executed by Pennsylvania Real Estate Investment Trust in the form of that attached as Exhibit L_ hereto; and
(pxi) Reasonable evidence of Seller’s organizational authority.
(xii) An assignment updated rent roll listing all Space Tenants as of Excluded Assets from the Closing Date.
(b) At Closing Purchaser shall deliver to Seller or Escrowee:
(i) the balance of the Purchase Price as provided in Section 3 hereof;
(ii) an Assignment of Limited Partnership Interest (respecting PREIT’s limited partnership interest in PRDB) executed by Purchaser in the form of that attached as Exhibit C hereto;
(iii) an Assignment of Membership Interest (respecting PREIT’s membership interest in PRDB General Partner) executed by Purchaser in the form annexed hereto as Exhibit D;
(iv) standard buyer’s affidavits to the Title Company in such form as may be reasonably required by the Title Company, ;
(v) an Assignment and Assumption Agreement (respecting the Operating Partnership or a Subsidiary, Bed Bath & Beyond Sublease) duly executed by Purchaser in the form of that attached as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4Exhibit L hereto; (vi) realty transfer tax return(s) executed by Purchaser, if applicable.required; and
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)