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 the Closing Date, the parties shall make, execute, acknowledge and deliver, The Vendor will 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 Closing shall be Purchaser the following:
(a) The Contribution , each in form and Assumption Agreement substance satisfactory to the Purchaser or in the form attached hereto to this Agreement:
(i) share certificates representing the Purchased Shares duly endorsed in blank for transfer, or accompanied by an instrument of transfer transferring the Purchased Shares to the Purchaser or its nominee duly executed by the holder of record, together with evidence satisfactory to the Purchaser that the Purchaser or its nominee(s) have been entered upon the books of the Corporation as Exhibit Bthe holder of the Purchased Shares;
(bii) The OP Agreement certified copies of: (A) the Governing Documents of each of the Purchased Corporations and the ArticlesVendor; and (B) all resolutions of the directors, and, if required, the shareholders, of the Vendor approving the entering into and completion of the transactions contemplated by this Agreement;
(ciii) The Amendment or other evidence a certificate executed by a senior officer of the transfer of OP Units to Contributor Vendor certifying the matters set out in Section 8.1(a) 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)(28.1(b);
(fiv) The release executed by Operating Partnership a certificate of status, compliance, good standing or similar certificate with respect to each of the Purchased Corporations and the Company Vendor issued by the applicable Governmental Entity and, in favor the case of the employees Purchased Corporations, by each jurisdiction in which it carries on business, dated not more than two (2) Business Days prior to the Closing Date;
(v) a duly executed resignation and Affiliates release, effective at the Closing, from each of the Supervisor directors and corporate officers of either of the Purchased Corporations, 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 resignation and release 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”Schedule 8.1(v);
(kvi) The Operating Partnership and a duly executed release in favour of the Company on Corporation from 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 certificatesVendor, in each case, to the extent obtained by form of the Contributor release in accordance with Section 2.1(b)(viiiSchedule 8.1(vi);
(mvii) The Operating Partnership the Books 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 Records 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 partyPurchased Corporations; and
(pviii) An assignment of Excluded Assets from such other documents and ancillary agreements as contemplated herein or therein or as the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablePurchaser may otherwise reasonably require.
Appears in 3 contracts
Sources: Share Purchase Agreement (Cannapharmarx, Inc.), Share Purchase Agreement, Share Purchase Agreement
Closing Deliveries. On At the Closing Date, the parties Closing,
(a) East shall make, execute, acknowledge and deliver or cause its Affiliates to deliver, or cause as applicable, to be madeRand:
(i) a counterpart of each assignment and assumption agreement relating to a Contributed Investment Asset, executedduly executed on behalf of East, acknowledged its Affiliate (if applicable) and deliveredeach Person from whom a Consent, through as set forth on Section 5.13(j) of the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof)East Disclosure Schedule, the OP Agreement and other legal documents and items is required to be executed or delivered in connection with the Closing transfer of such Contributed Investment Asset (collectively unless a separate Consent from each such Person has been delivered to Rand);
(ii) the “Closing Documents”Contributed Loan Notes with respect to such Contributed Loans;
(iii) the Contributed Loan Documents in the possession or control of East;
(iv) the Contributed Loan Files in the possession or control of East;
(v) the Contributed Books and Records;
(vi) the Cash Consideration by wire transfer of immediately available funds to which it is an account of Rand designated in writing by Rand to East;
(vii) nomination in writing of two or three directors, as applicable based upon the terms of the Shareholder Agreement, to stand for election at the annual meeting of stockholders of Rand, subject to the provisions of the Shareholder Agreement;
(viii) an officer’s certificate signed by an officer of East as required to be delivered under Sections 8.3(a) and 8.3(b);
(A) a party certification of non-foreign status that complies with the requirements of Code Section 1445 and Treasury Regulation Section 1.1445-2(b) and (B) certification pursuant to Code Section 1446(f)(2), in each case, in form and substance reasonably satisfactory to Rand;
(x) a certificate of the Secretary or for which it is otherwise responsible Assistant Secretary (or equivalent officer) of the East certifying that attached thereto are necessary to carry out true and complete copies of all resolutions adopted by the intention members of East authorizing the execution, delivery, and performance of this Agreement and the other consummation of the Stock Purchase, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the 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;
(axi) The Contribution a copy of the Shareholder Agreement, duly executed by East; and
(xii) such other documents as may be reasonably required by Rand, each in form and Assumption Agreement in substance satisfactory to Rand, to effect the form attached hereto as Exhibit B;intentions of the Parties contemplated by this Agreement, duly executed by East.
(b) The OP Agreement Rand shall deliver to East:
(i) a counterpart of each assignment and the Articlesassumption agreement relating to a Contributed Investment Asset, duly executed on behalf of Rand;
(cii) The Amendment or other evidence of the Purchased Shares by book entry transfer of OP Units to Contributor and by Contributor to its Participantsan account for East at Rand’s transfer agent;
(diii) Evidence copies of the DTC Registered REIT StockManagement Agreements, 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 chargeduly executed by Rand;
(eiv) An affidavit from Contributor (or, if Contributor is a disregarded entity within an officer’s certificate signed by the meaning Chief Executive Officer or the Chief Financial Officer of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposesRand as required to be delivered under Sections 8.2(a) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2and 8.2(b);
(fv) The release executed by Operating Partnership and a certificate of the Secretary or Assistant Secretary (or equivalent officer) of the Company in favor certifying that attached thereto are true and complete copies 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 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 Rand Board authorizing the execution, delivery delivery, and performance by the Operating Partnership of this Agreement 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 Management Agreements and the documents listed in this Section 2.3;
(l) Any Tenant Estoppelsconsummation of the Stock Purchase, 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 that 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 resolutions are in full force and effect and are all the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
(i) All documents reasonably required by a Lender resolutions adopted in connection with the assumption or prepayment transactions contemplated hereby and thereby;
(vi) a copy 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 caseShareholder Agreement, duly executed by the applicable partyRand; and
(pvii) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, such other documents as applicablemay be reasonably required by East, in favor of Contributorform and substance satisfactory to East, to achieve effect the distributions intentions of the Parties contemplated under Section 1.4by this Agreement, if applicableduly executed by Rand.
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Rand Capital Corp), Stock Purchase Agreement
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;
(cb) The Amendment to the OP Agreement or other evidence of the transfer of OP Units to Contributor and by Contributor Merger Consideration to its ParticipantsEquity Holders pursuant to Section 1.7;
(dc) 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;
(ed) An affidavit from Contributor the Management Company (or, if Contributor the Management Company is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), the sole owner of Contributor the Management Company for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations Regulation 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;
(he) Any other documents that are in the possession of Contributor the Management Company or which can be obtained through Contributorthe Management Company’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 requireddocumentation;
(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”);
(kf) The Operating Partnership and the Company on the one hand and Contributor the Management Company on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or limited liability company actions actions, as applicable authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributorthe Management Company) and Contributor the Management Company (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);
(mg) The Operating Partnership and the Company on the one hand and Contributor the Management Company 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);
(nh) Any books, records and Organizational Documents relating to Contributor the Management Company that are in the possession of Contributor the Management Company or which can be obtained through Contributorthe Management Company’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
(pi) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor of Contributorthe Management Company, to achieve the distributions contemplated under Section 1.41.2, if applicableand an assumption by the Management Company of the Excluded Liabilities, as contemplated under Section 1.3.
Appears in 3 contracts
Sources: Merger Agreement (Empire State Realty OP, L.P.), Merger Agreement (Empire State Realty Trust, Inc.), Merger Agreement (Empire State Realty Trust, 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 deliver 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 are 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 of Amendment and Restatement of the Company, as amended and restated and in effect immediately prior to the Closing in substantially the form attached as Exhibit B (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, which restrictions shall be substantially the same as those set forth in the Articles;
(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;
(hb) Any other documents that are in the possession of a Contributor or which can be obtained through such Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that and are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor Contributed Interests 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”);
(kc) The Operating Partnership and the Company on the one hand and Contributor the Helmsley Group Members on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or partnership, limited liability company actions or other actions, as applicable, authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by Contributora Helmsley Group Member) and Contributor any Helmsley Group Member (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);
(md) The Operating Partnership and the Company on the one hand and Contributor the Helmsley Group Members 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 respectsdate);
(ne) The Contributors shall each provide the Operating Partnership with a certificate of non-foreign status that complies in form and in substance with Treasury Regulation Section 1.1445-2(b); and
(f) Any applicable books, records and Organizational Documents relating to Contributor each Contributed Helmsley Entity that are in the possession of each Contributed Helmsley Entity or the applicable Contributor or which can be obtained through Contributor’s such entities’ 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: Contribution Agreement (Empire State Realty Trust, Inc.), Contribution Agreement (Empire State Realty Trust, Inc.)
Closing Deliveries. (a) On or prior to the Closing DateClosing, the parties Amyris shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power to Nikko a certificate 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 Amyris’ Secretary 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)duly authorized officer, in either event with coverage for the Property equal to the an amount a form reasonably acceptable to the Operating PartnershipNikko, certifying that (A) attached are true 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 correct copies 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 resolutions of all appropriate corporate resolutions or partnership or limited liability company actions Amyris authorizing the execution, delivery and performance by the Operating Partnership of this Agreement and the Company other documents to which it is a party contemplated hereby and thereby and the consummation of the transactions contemplated by this Agreement, (if so requested B) all such resolutions are in full force and effect and have not been repealed or contravened, (C) such resolutions constitute all the resolutions adopted in connection with the transactions contemplated by Contributorthis Agreement and (D) all of its representations and warranties set forth herein are true and correct. Further, on or prior to the Closing, Amyris shall provide (i) written consents to consummate the transaction contemplated hereby, which are issued by all of the financial institution(s) and Contributor other Persons lending money to or providing guarantees for Amyris (if so requested and whose consent is required for such consummation), (ii) written consent from Akzo Nobel SPG LLC confirming that the Company is entitled to exercise any and all rights under the Akzo Nobel Agreements or other documentation relating to the Akzo Nobel Agreements reasonably satisfactory to Nikko, (iii) a statement pursuant to Treasury Regulation Section 1.1445-2(b), in a form reasonably satisfactory to Nikko, providing that Amyris is not a “foreign person” for purposes of Section 1445 of the Code, (iv) a list of Amyris’ debt-holders; (v) warranty deed conveying the Real Property to the Company together with any necessary sewer, utility and access easements; (vi) a ▇▇▇▇ of sale and assignment from Amyris conveying to the Company the Assets; (vii) a statement of termination of the UCC financing statement filed for the First Western Bank & Trust (DBA All Lines Leasing); and (viii) financial statements of Glycotech/Salisbury. In relation to Section 3.2.(a)(i), Amyris hereby confirms that it will deliver a letter of waiver and release issued by Stegodon Corporation concerning the Operating Partnership transactions contemplated by this Agreement and that no other consent is required to consummate such transactions in accordance with the terms of this Agreement.
(b) On or prior to the CompanyClosing, each of Nikko Chemicals and Nissa shall deliver, or cause to be delivered, to Amyris a certificate of Nikko Chemicals’ or Nissa’s Secretary, as applicable, or other duly authorized officer, in a form reasonably acceptable to Amyris, certifying that (A) attached are true and correct copies of the resolutions of Nikko Chemicals or Nissa, as applicable, authorizing the execution, delivery and performance of this Agreement, any related the other documents and the other documents listed to which it is a party contemplated hereby and thereby and the consummation of the transactions contemplated by this Agreement, (B) all such resolutions are in full force and effect and have not been repealed or contravened, (C) such resolutions constitute all the resolutions adopted in connection with the transactions contemplated by this Section 2.3;
Agreement and (lD) Any Tenant Estoppelsall of its representations and warranties set forth herein are true and correct. Further, any Ground Lease Estoppels and any other tenant estoppel certificatesat the Closing, in each case, to Nikko shall remit the extent obtained by the Contributor Initial Purchase Price 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 applicable2.2.
Appears in 2 contracts
Sources: Joint Venture Agreement, Joint Venture Agreement (Amyris, 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 Tenant shall duly execute and deliver on Closing:
(i) the Lease, the commencement date of which will be the date of Closing;
(ii) the Contribution and Assumption Agreement Agreement, substantially in the form of the agreement attached hereto as Exhibit Schedule “B”;
(iii) evidence the Reserve Fund Account has been established as required under the Lease together with written agreement by the Tenant, in a form acceptable to the Landlord acting reasonably, securing the amount required to be contributed monthly to the Tenant’s reserve account to fund the Capital Repair Cost;
(iv) evidence of insurance as required under the Lease;
(v) certified copy of the directors' resolution of the Tenant authorizing the transaction;
(vi) an acknowledgement the Remediation Work has been completed to the Tenant’s satisfaction except as set out in Section 6 above;
(vii) an acknowledgement that all Turnover Deliveries have been provided to it;
(viii) Declaration of Compliance with Anti-Harassment/Discrimination Legislation & City Policy attached to the Contribution Agreement as Schedule “G”;
(ix) evidence of transfer of utilities; and
(x) all other agreements and documentation and all acknowledgements and directions and other documentation required to complete this transaction and to register a satisfactory notice of the Lease on title to the Demised Premises
(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 Landlord 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 duly execute 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;on Closing:
(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”)Lease;
(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 Contribution Agreement;
(iii) the Turnover Deliveries;
(iv) such keys, combination or other access devices required to access 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 partyDemised Premises; and
(pv) An assignment all other agreements and documentation and all acknowledgements and directions and other documentation required to complete this transaction and to register a satisfactory notice of Excluded Assets from the Company, Lease on title to the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableDemised Premises.
Appears in 2 contracts
Sources: Offer to Lease, Offer to Lease
Closing Deliveries. On the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through deliver 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 are 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 the Malkin Family Contributors and by Contributor to its Participants;
(d) Evidence evidence of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles of Amendment and Restatement of the Company, as amended and restated and in effect immediately prior to the Closing (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, which restrictions shall be substantially the same as those set forth in the Articles;
(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;
(hb) Any other documents that are in the possession of a Malkin Family Contributor or which can be obtained through such Malkin Family Contributor’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that and are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor Contributed Interests 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”);
(kc) The Operating Partnership and the Company on the one hand and Contributor the Malkin Family Contributors that are entities on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or partnership, limited liability company actions or other actions, as applicable, authorizing the execution, delivery and performance by the Operating Partnership and the Company (if so requested by a Malkin Family Contributor) and any Malkin Family 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);
(md) The Operating Partnership and the Company on the one hand and Contributor the Malkin Family Contributors 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 respectsdate);
(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
(pe) An assignment of Excluded Assets from the Company, The Malkin Family Contributors shall each provide the Operating Partnership or with a Subsidiary, as applicable, certificate of non-foreign status that complies in favor of Contributor, to achieve the distributions contemplated under form and in substance with Treasury Regulation Section 1.4, if applicable1.1445-2(b).
Appears in 2 contracts
Sources: Contribution Agreement (Empire State Realty Trust, Inc.), Contribution Agreement (Empire State Realty Trust, 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, through deliver the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), 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 a Contribution and Assumption Agreement substantially in the form attached hereto as Exhibit BC;
(b) The OP Agreement for the Contributor, a certificate from the Operating Partnership that effective at the Closing the books and records of the ArticlesOperating Partnership will indicate that the Contributor is the holder of a number of Units equal to the Consideration;
(c) The Amendment or other evidence an affidavit from the Contributor in the form of Exhibit D, stating, under penalty of perjury, the Contributor’s United States Taxpayer Identification Number and that the Contributor is not a foreign person pursuant to section 1445(b)(2) of the transfer of OP Units to Contributor Code and by Contributor to its Participantsa comparable affidavit satisfying Massachusetts’ and any other state’s withholding requirements, if any;
(d) Evidence all title insurance policies, leases, lease files, letters of the DTC Registered REIT Stockcredit, which shall bear substantially the legend set forth contracts, stock certificates, original promissory notes held by Holdings or a Participating Entity and other indicia of ownership with respect to Holdings and each Participating Entity that are in the Articles Contributor’s possession 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 can be obtained through reasonable efforts in the Articles on request and without chargeContributor’s capacity as indirect owner of any Participating Entity shall be delivered or made available to the Company;
(e) An affidavit a certificate from the Contributor (or, if affirming that the representations and warranties made by the Contributor is a disregarded entity within pursuant to this Agreement remain true and correct in all material respects as of 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)Closing Date;
(f) The release executed by the Operating Partnership and Agreement;
(g) a lockup agreement in the Company in favor of the employees and Affiliates of the Supervisor form attached hereto as Exhibit K;
(h) a Registration Rights Agreement 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 a Voting Agreement substantially in substantially the form attached hereto 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 PoliciesG;]
(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 SubsidiaryCompany, effective as certified copies 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 all organizational documents for the Property as the Operating Partnership may reasonably request (includingContributor, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event together 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 copies 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 Closing Documents;
(k) evidence reasonably satisfactory to the Company that the lender of any borrowed money secured by a mortgage or deed of trust disclosed in this Section 2.3the Title Reports, other than those lenders whose loans are being repaid before or immediately after the Closing, has consented to the transaction as required by any loan document, deed of trust, mortgage or other evidence of indebtedness related to any Property;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained documents reasonably requested by the Contributor in accordance with Section 2.1(b)(viii);Company or the Operating Partnership to assign, transfer, convey, contribute and deliver the Holdings Interests, free and clear of all Encumbrances, and effectuate the transactions contemplated hereby; and
(m) The Operating Partnership all state and local transfer tax returns and any filings to be made in any applicable governmental jurisdiction in which 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 reasonably believes that it is required to file its organizational documentation or a Subsidiary, as applicable, in favor which the recording of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableContribution and Assumption Agreement is required.
Appears in 2 contracts
Sources: Contribution Agreement (STAG Industrial, Inc.), Contribution Agreement (STAG Industrial, 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 At the Closing DateClosing, the parties each party shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through deliver the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), 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 a Contribution and Assumption Agreement substantially in the form attached hereto as Exhibit BC;
(b) The OP Agreement for the Contributor, a certificate from the Operating Partnership that effective at the Closing the books and records of the ArticlesOperating Partnership will indicate that the Contributor is the holder of a number of Units equal to the Consideration;
(c) The Amendment or other evidence an affidavit from the Contributor in the form of Exhibit D, stating, under penalty of perjury, the Contributor’s United States Taxpayer Identification Number and that the Contributor is not a foreign person pursuant to section 1445(b)(2) of the transfer of OP Units to Contributor Code and by Contributor to its Participantsa comparable affidavit satisfying Massachusetts’ and any other state’s withholding requirements, if any;
(d) Evidence all title insurance policies, leases, lease files, letters of the DTC Registered REIT Stockcredit, which shall bear substantially the legend set forth contracts, stock certificates, original promissory notes held by Holdings or a Participating Entity and other indicia of ownership with respect to Holdings and each Participating Entity that are in the Articles Contributor’s possession 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 can be obtained through reasonable efforts in the Articles on request and without chargeContributor’s capacity as indirect owner of any Participating Entity shall be delivered or made available to the Company;
(e) An affidavit a certificate from the Contributor (or, if affirming that the representations and warranties made by the Contributor is a disregarded entity within pursuant to this Agreement remain true and correct in all material respects as of 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)Closing Date;
(f) The release executed by the Operating Partnership and Agreement;
(g) a lockup agreement in the Company in favor of the employees and Affiliates of the Supervisor form attached hereto as Exhibit L;
(h) a Registration Rights Agreement 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 a Voting Agreement substantially in substantially the form attached hereto 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 PoliciesH;]
(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, Purchase Option 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 Excluded 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 substantially in the name form attached hereto as Exhibit J; together with reasonable evidence of authority in connection with the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)execution and delivery of such Purchase Option;
(k) The Operating Partnership and if requested by the Company on Company, certified copies of all organizational documents for the one hand and Contributor on the other hand shall provide to the other a Contributor, together with certified copy copies 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 2.3Closing Documents;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, evidence reasonably satisfactory to the extent obtained Company that the lender of any borrowed money secured by a mortgage or deed of trust disclosed in the Contributor in accordance with Section 2.1(b)(viii)Title Reports, other than those lenders whose loans are being repaid before or immediately after the Closing, has consented to the transaction as required by any loan document, deed of trust, mortgage or other evidence of indebtedness related to any Property;
(m) The any other documents reasonably requested by the Company or the Operating Partnership to assign, transfer, convey, contribute and deliver the Company on Holdings Interests, free and clear of all Encumbrances, and effectuate 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);transactions contemplated hereby; and
(n) Any books, records all state and Organizational Documents relating local transfer tax returns and any filings to Contributor that are be made in any applicable governmental jurisdiction in which the possession of Contributor Company 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 reasonably believes that it is required to file its organizational documentation or a Subsidiary, as applicable, in favor which the recording of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableContribution and Assumption Agreement is required.
Appears in 2 contracts
Sources: Contribution Agreement (STAG Industrial, Inc.), Contribution Agreement (STAG Industrial, Inc.)
Closing Deliveries. On the Closing Date(a) At or before Closing, the parties Contributor shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through to Company the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof)following items for each Property, 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 followingif applicable:
(ai) The Contribution a Rent Roll dated as of five (5) days of the date hereof.
(ii) an executed and Assumption acknowledged counterpart of that certain Tax Protection Agreement substantially in the form attached hereto as Exhibit B“A” (“Tax Protection Agreement”), dated the date hereof;
(biii) The OP Agreement executed and the Articles;
(c) The Amendment or other evidence acknowledged counterparts 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 those certain management agreements 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, “FairwayB” 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 PoliciesManagement Agreement”), dated the date hereof;
(kiv) The Operating Partnership an executed 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 acknowledged counterpart 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 certain OP Unit Purchase Agreement substantially 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 “C” (unless such Existing Loans are repaid at or prior to Closingthe “OP Unit Purchase Agreement”), ;
(v) executed and acknowledged counterparts of the Accredited Investor Questionnaire in the form attached hereto as applicable, Exhibit “D”;
(vi) documents conveying all of Contributor’s interest in each case, duly executed by of the applicable partyEntities to Company; and
(pvii) An assignment of Excluded Assets from such other documents as may be specifically required under this Agreement, and such other customary documents as shall be necessary and appropriate to effect the CompanyClosing.
(b) At or before Closing, Company shall deliver to Contributor the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4following items for each Property, if applicable:
(i) the Contribution Consideration;
(ii) a duly executed counterpart of such disclosures and reports as are required of Company by applicable state and local law in connection with the conveyance of the Property;
(iii) the Tax Protection Agreement, executed by Company and the REIT;
(iv) duly executed counterparts of the Management Agreement;
(v) an executed and acknowledged counterpart of the OP Unit Purchase Agreement;
(vi) an assumption of the Existing Loans in the form or forms required by the Existing Lenders; and
(vii) such other documents as may be specifically required under this Agreement, and such other customary documents as shall be necessary and appropriate to effect the Closing.
(c) If not previously provided to Company, Contributor shall deliver to Company originals of the Leases (if originals are in Contributor’s possession or control) promptly following the Closing Date.
(d) The form documents attached as exhibits to this Agreement are deemed acceptable to Company and Contributor. Company and Contributor shall each deposit such other instruments as are reasonably required to consummate the contribution of the Properties in accordance with the terms hereof.
Appears in 2 contracts
Sources: Contribution Agreement (Pillarstone Capital Reit), Contribution Agreement (Whitestone REIT)
Closing Deliveries. On (a) At the Closing DateClosing, the parties Guarantor or the Contributor, as applicable, shall make, execute, acknowledge execute and deliver, or cause to be made, executed, acknowledged executed and delivered, through to the Power Parent and the Acquiror, as applicable:
(i) Duly executed copies of Attorney or all consents, approvals and releases required for the Attorney-in-Fact (described in Article 5 hereof), consummation of 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 transactions contemplated by this Agreement and the Related Agreements and to permit the Acquiror to acquire all of the Contributed Assets, without violating any Contract or License of the Contributor or any Laws, including, without limitation, Environmental Laws, Environmental Permits and any other transactions contemplated requirement of any Governmental or Regulatory Authority. Additionally, any financing statement terminations and/or releases shall have been filed as necessary to take place in connection therewith. The Closing Documents remove any Liens applicable to the Contributed Assets;
(ii) Prior to the date of this Agreement, the Contributor has delivered to the Acquiror (A) a commitment for a title policy issued by Title Guaranty Company, El Dorado, Arkansas (the “Title Company”) with respect to the Owned Real Property, insuring title of the Owned Real Property (and other items specifically insuring as an insured parcel any easements benefiting the Owned Real Property) to be delivered at in the Acquiror as of the Closing Date, subject only to those exceptions approved by the Acquiror in writing and (B) copies of the title exception documents referenced in the commitments with respect thereto. Prior to the Closing, the Acquiror will submit any reasonable objections it has with respect to such exceptions that are noted in the commitment. Based on the foregoing, the Contributor and the Acquiror will cooperate to mutually agree upon the final form of such title commitment which shall be the following:
(a) The Contribution and Assumption Agreement substantially in the form attached hereto as Exhibit B;
B (b) The OP Agreement and the Articles;
(c) The Amendment or other evidence “Title Commitment”). At the Closing, the Contributor shall provide to the Acquiror an ALTA Owner’s Policy 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 Title Insurance in the Articles or a written statement of information that form contemplated by the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in Title Commitment (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“Owner’s Policy”), together with a mortgagee’s policy (the sole owner of Contributor for such purposes“Mortgagee Policy”) 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 Royal Bank of Canada, as administrative agent under the Parent’s credit facility, with such endorsements as are specified in the Title Commitment and Affiliates as may be reasonably requested by such administrative agent (the Owner’s Policy and the Mortgagee’s Policy being referred to herein collectively as, the “Title Policies”), issued by the Title Company and insuring the Owned Real Property (and specifically insuring as an insured parcel any easements benefiting the Owned Real Property), subject only to those exceptions previously approved by the Acquiror in writing, in the aggregate amount of $45,000,000. The Contributor shall be responsible for the payment of all costs and expenses associated the Owner’s Policy, and the Acquiror shall be responsible for the payment of all costs and expenses associated with the Mortgagee Policy. The Contributor shall deliver to the Acquiror and the Title Company any further affidavits, agreements, current survey(s) and assurances necessary to issue the Title Policies;
(iii) Prior to the date of this Agreement, the Contributor, at its expense, has delivered to the Acquiror a current survey of the Supervisor Owned Real Property made by a registered professional land surveyor that meets the requirements of the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys jointly established by the American Land Title Association, the American Congress on Surveying and Mapping and the National Society of Professional Surveyors. Prior to the date of this Agreement, the Acquiror has submitted any objections it had with respect to such survey. Based on the foregoing, the Contributor and the Acquiror will cooperate to mutually agree upon the final form of such survey, including the form of surveyor certification noted thereon, which shall be in substantially the form attached hereto as Exhibit EC (the “Survey”). At the Closing, the final form of the Survey shall be delivered by the Contributor to the Acquiror;
(giv) All consents, approvals and/or waivers necessary to assign or transfer to the Acquiror any and all assignable or transferable Contracts, Licenses, Environmental Permits or other permissions of Governmental or Regulatory Authorities;
(v) Certification of the Contributor’s non-foreign status as set forth in Treasury Regulation Section 1.1445-2(b);
(vi) The documents contemplated by Section 1.9 of this Agreement;
(vii) Written instruments in form and substance reasonably acceptable to Acquiror pursuant to which all liens and security interests granted by the Contributor or the Guarantor with respect to the Contributed Assets are terminated and released and authorizing the filing of all UCC-3 termination statements which may be necessary or appropriate to evidence any such termination and release;
(viii) Certified resolutions of the board of directors of the Contributor and the Guarantor authorizing the transactions described herein and in the Related Agreements;
(ix) A cross receipt evidencing receipt of the Units representing the Contribution Consideration from the Parent;
(x) A certificate executed by the Contributor and the Guarantor to the effect that each of the Contributor’s and the Guarantor’s representations and warranties contained herein is true, complete and accurate in all respects as of the Closing Date as if made on the Closing Date and that the Guarantor and the Contributor have complied with all of their respective covenants to be performed hereunder prior to Closing
(xi) A copy of the most recent as-built survey certificate previously executed by the Contributor and the Guarantor on the date of this Agreement, and reconfirmed by such parties as of the PropertyClosing Date, if anyto the effect that, at the Closing Date, the transactions contemplated by this Agreement shall not result in any balance sheet impairment to the Guarantor;
(hxii) Any other documents A copy of the prior opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. dated as of the date of this Agreement, stating that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested consideration collectively received by the Company or Contributor and the Operating Partnership or that are Guarantor in connection with the contribution of the assets under this Agreement, is fair, from a financial point of view, to the Contributor and Guarantor, collectively;
(xiii) Such further instruments and documents, normal and customary for transactions such as those contemplated by this Agreement, as may be reasonably necessary or desirable required for the Parent and the Acquiror 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 consummate the transactions contemplated hereby, including, without limitation, and only to certificates issued by 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 appropriate Governmental or Regulatory Authorities in which the Operating Partnership is required to file its partnership documentation Guarantor’s or the recording Contributor’s jurisdiction of deeds or other Property Interest transfer documents is requiredincorporation, certifying the valid existence and good standing of the Guarantor and the Contributor;
(ixiv) [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)The Noncompetition 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 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 G (unless such Existing Loans are repaid at or prior the “Noncompetition Agreement”);
(xv) The Tolling Agreement, the form attached hereto as Exhibit H (the “Tolling Agreement”); and
(xvi) An amendment to the Omnibus Agreement revising the definition of the term “Business” used therein to include the refining of crude oil into Products as defined in the Tolling Agreement.
(b) At the Closing), the Acquiror and the Parent, as applicable, shall execute and deliver, or cause to be executed and delivered, to the Guarantor and the Contributor, as applicable:
(i) The certificates for the Units representing the Contribution Consideration to be issued by the Parent to the Contributor, together with any amendments to the organizational documents of Parent required in connection with the issuance of the Units;
(ii) The Noncompetition Agreement;
(iii) The Tolling Agreement;
(iv) Certified resolutions of each case, duly of the general partner of the Acquiror and the Parent authorizing the transactions described herein and in the Related Agreements;
(v) Certified resolutions of the Conflicts Committee of the board of directors of the general partner of the Parent authorizing the transactions described herein and in the Related Agreements and stating that such transactions are fair and reasonable to the Parent;
(vi) A certificate executed by the applicable partyAcquiror and the Parent to the effect that each of the Acquiror’s and the Parent’s representations and warranties contained herein is true, complete and accurate in all respects as of the Closing Date as if made on the Closing Date and that Parent and the Acquiror have complied with all of their respective covenants to be performed hereunder prior to Closing;
(vii) A copy of the prior opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Financial Advisors, Inc. (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇”), dated as of the date of this Agreement, stating that the consideration to be received by the Parent in exchange for the issuance of the Units pursuant to the Agreement is fair to the Parent from a financial point of view, together with confirmation by Acquiror and Parent that ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ has not withdrawn, modified or qualified such opinion; and
(pviii) An assignment of Excluded Assets from the CompanySuch further instruments and documents, the Operating Partnership or a Subsidiarynormal and customary for transactions such as those contemplated by this Agreement, as applicable, in favor of Contributor, may be reasonably required for the Guarantor and the Contributor to achieve consummate the distributions transactions contemplated under Section 1.4, if applicablehereby.
Appears in 2 contracts
Sources: Contribution Agreement (Martin Midstream Partners Lp), Contribution Agreement (Martin Midstream Partners Lp)
Closing Deliveries. On the Closing DateAcquiring Corporation, the parties shall make, execute, acknowledge Newco and Target Corporation will deliver, or cause to be made, executed, acknowledged and delivered, through on the Power of Attorney or Closing Date the Attorney-in-Fact following instruments (described in Article 5 hereof)collectively, the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing (collectively the “Closing "Transaction Documents”") to which it is they are 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 followingparty:
(a) The Contribution Other than with respect to Dissenting Shares, letters of transmittal in a form satisfactory to the parties, executed by shareholders of Target Corporation, together with certificates representing the Common Stock or affidavits of lost stock certificates in lieu thereof and Assumption any bonds (or other documentation relating to ownership of Common Stock) that may be required in connection therewith, in the reasonable discretion of Acquiring Corporation;
(b) Other than with respect to Dissenting Shares, powers of attorney, in a form satisfactory to the parties, executed by shareholders of Target Corporation acknowledging their obligations under this Agreement and appointing the Shareholder Representative as their attorney-in-fact;
(c) A Noncompetition Agreement between Acquiring Corporation or Surviving Corporation and each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in substantially the form attached hereto as Exhibit B;
F (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"Noncompetition Agreement");
(d) Evidence An Opinion of the DTC Registered REIT Stock, which shall bear Counsel of Target Corporation in 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 form attached hereto as set forth in the Articles on request and without chargeExhibit G;
(e) An affidavit from Contributor A Mutual Release of Claims in substantially the form attached hereto as Exhibit I (or, if Contributor is a disregarded entity within the meaning "Release of Section 1.1445-2(d)(2)(iii), Claims") executed immediately prior to the sole owner Merger by Target Corporation and each of Contributor for such purposes) the officers and directors of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)Target Corporation;
(f) The release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor Escrow Agreement in the form attached hereto as Exhibit E;
(g) A copy power of the most recent as-built survey attorney of the Property, if any;Target Corporation and its Subsidiaries as provided for in Section 6.2(g); and
(h) Any other Such additional information or documents that are in as Acquiring Corporation, Newco or Target Corporation shall have reasonably required to evidence 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 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 2 contracts
Sources: Merger Agreement (D & K Healthcare Resources Inc), Merger Agreement (D & K Healthcare Resources 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 At the Closing DateClosing, the parties shall make, execute, acknowledge and deliverand/or deliver (as required), or cause to be made, executed, acknowledged and delivered, and/or 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 Agreement, which Closing Documents and other items to be delivered at the Closing shall be include, without limitation, the following:
(a) The A Contribution and Assumption Agreement for Contributor's Partnership Interests in the form attached hereto as Exhibit B;
(b) The OP Agreement An individual quitclaim deed for each Property fully executed and duly acknowledged by Contributor, if an individual, or by each of the Articlesindividual constituent partners and/or members of Contributor, in the form attached hereto as Exhibit C;
(c) The Amendment or other evidence of the Certificates evidencing the transfer of OP Partnership Units (if any) to Contributor and by Contributor to its ParticipantsContributor;
(d) Evidence Cash equal to the cash portion (if any) 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 chargeTotal Consideration;
(e) An affidavit A Power of Attorney fully executed and duly acknowledged 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 substantially in the form attached hereto as Exhibit E;
(f) All books and records, title insurance policies, leases, lease files, contracts, stock certificates, original promissory notes, and other indicia of ownership with respect to each Partnership (and any subsidiary Participating Partnership) shall be delivered to the Operating Partnership which are in Contributor's possession or which can be obtained through Contributor's reasonable efforts in Contributor's capacity as a partner, interest holder, or employee of any of the Partnerships, Maguire Partners Development, Ltd., or any of their respective affil▇▇▇▇▇;
(g) A copy An affidavit from Contributor, stating under penalty of perjury, Contributor's United States Taxpayer Identification Number and that Contributor is not a foreign person pursuant to Section 1445(b)(2) of the most recent as-built survey of Code and a comparable affidavit satisfying California and any other withholding requirements, each in the Property, if anyforms attached hereto as Exhibit F;
(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 Operating Partnership, the Title Company, or the Operating Partnership or that are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor directlyContributor's Partnership Interests, free and clear of all Liens (other than the Permitted Encumbrances) and effectuate the transactions contemplated herebyhereby (which are in Contributor's possession or which can be obtained through Contributor's reasonable efforts in Contributor's capacity as a partner, interest holder, or employee of any of the Partnerships, Maguire Partners Development, Ltd., or any of their respective affil▇▇▇▇▇), including, without limitation, and only to the extent applicable, grant deeds (if transferred directly)any deeds, assignments of ground leases, air space leases and space leasesleases (as applicable), bills such documents as may be necessary to enable a title insurance company (acceptable to the Operating Partnership in its sole discretion) to issue to the Operating Partnership American Land Title Assurances policies of saletitle insurance with appropriate endorsements (including, general assignments without limitation, non-imputation endorsements to the extent available) and levels of reinsurance for the Properties issued as of the Closing Date (the "Title Policies"), insuring fee simple and/or leasehold title to all real property and improvements comprising all or any part of the Property Interests to the Operating Partnership as the Operating Partnership may designate, subject only to the Permitted Liens (as defined in Exhibit D hereto), 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 Contribution and Assumption Agreement or deed or other Property Interest Interests transfer documents is required;; and
(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 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) 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: Contribution Agreement (Maguire Properties Inc), Contribution Agreement (Maguire Properties 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, through deliver the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), 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 a Contribution and Assumption Agreement substantially in the form attached hereto as Exhibit B;
(b) The OP Agreement for each Contributor, a certificate from the Operating Partnership that effective at the Closing the books and records of the ArticlesOperating Partnership will indicate that such Contributor is the holder of a number of Units equal to its Consideration;
(c) The Amendment or other evidence an affidavit from each Contributor in the form of Exhibit C, stating, under penalty of perjury, the Contributor’s United States Taxpayer Identification Number and that the Contributor is not a foreign person pursuant to section 1445(b)(2) of the transfer of OP Units to Contributor Code and by Contributor to its Participantsa comparable affidavit satisfying Massachusetts’ and any other state’s withholding requirements, if any;
(d) Evidence a certificate from each Contributor affirming that the representations and warranties made by such Contributor pursuant to this Agreement remain true and correct in all material respects as 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 chargeClosing Date;
(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)Operating Partnership Agreement;
(f) The release executed by Operating Partnership and intentionally omitted;
(g) a lockup agreement in the Company in favor of the employees and Affiliates of the Supervisor form attached hereto as Exhibit J;
(h) a Registration Rights Agreement 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 a Voting Agreement substantially in substantially the form attached hereto 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 PoliciesG;]
(j) A standard owner’s affidavit executed if requested by the Company, certified copies of all organizational documents for each Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiarythat is not an individual, effective as of the Closing, together 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 copies 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) such Contributors of this Agreement, any related documents and the documents listed in this Section 2.3Closing Documents;
(k) evidence reasonably satisfactory to the Company that the lender of any money borrowed by SCP III, other than those lenders whose loans are being repaid before or immediately after the Closing, has consented to the transaction as required by any loan document or other evidence of indebtedness related to SCP III;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained documents reasonably requested by the Contributor in accordance with Section 2.1(b)(viii);Company or the Operating Partnership to assign, transfer, convey, contribute and deliver the SCP III Interests, free and clear of all Encumbrances, and effectuate the transactions contemplated hereby; and
(m) The Operating Partnership all state and local transfer tax returns and any filings to be made in any applicable governmental jurisdiction in which 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 reasonably believes that it is required to file its organizational documentation or a Subsidiary, as applicable, in favor which the recording of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableContribution and Assumption Agreement is required.
Appears in 2 contracts
Sources: Contribution Agreement (STAG Industrial, Inc.), Contribution Agreement (STAG Industrial, Inc.)
Closing Deliveries. On At the Closing DateClosing, the parties 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 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 Contributor shall deliver to the Company the following:
(i) a copy of the Contribution and Assumption Agreement Agreement, duly executed by the Contributor;
(ii) an affidavit from the Contributor substantially in the form attached hereto as Exhibit BF, duly executed by the Contributor;
(biii) The OP Agreement and the Articles;
(c) The Amendment or other evidence a copy 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 Registration Rights Agreement 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 EG (the “Registration Rights Agreement”), duly executed by the Contributor;
(giv) A a copy of the most recent as-built survey of Stockholders Agreement substantially in the Propertyform attached hereto as Exhibit H (the “Stockholders Agreement”), if anyduly executed by the Contributor;
(hv) Any any other documents that are in the possession of the Contributor or which can be obtained through the 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 Column 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;; and
(ivi) [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 the representations and warranties of the Contributor contained in this Agreement at as of the Closing Date Date.
(except b) The Company shall deliver 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;following:
(i) All documents reasonably required the Share Certificates or evidence of delivery of uncertificated Common Shares by a Lender in connection with book-entry and/or other evidence of the assumption or prepayment transfer of an Existing Loan at or prior Common Shares to Closing and the Contributor;
(ii) a copy of 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 caseContribution and Assumption Agreement, duly executed by the applicable partyCompany;
(iii) a copy of the Registration Rights Agreement, duly executed by the Company;
(iv) a copy of the Stockholders Agreement, duly executed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and
(pv) An assignment a certification regarding the accuracy in all material respects of Excluded Assets from the Company, representations and warranties of the Operating Partnership or a Subsidiary, Company contained in this Agreement as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableClosing Date.
Appears in 2 contracts
Sources: Contribution Agreement (Walker & Dunlop, Inc.), Contribution Agreement (Walker & Dunlop, Inc.)
Closing Deliveries. On (a) At or prior to the Closing DateClosing, the parties shall make, execute, acknowledge and deliver, Seller 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 Buyer the following:
(ai) The Contribution stock powers endorsed in blank necessary to transfer the certificates representing the Shares to Buyer and Assumption Agreement originals of all certificated securities representing the Shares and all other equity interests in the Company;
(ii) resignations or terminations of the directors of each member of the Company Group from their status as directors effective as of the Closing (other than those Persons identified by Buyer prior to Closing with respect to whom such resignation or termination is not required);
(iii) the certificates referred to in Sections 7.3(a) and 7.3(b);
(iv) a non-foreign affidavit, dated as of the Closing Date, in form attached hereto and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code, stating that Seller is not a “foreign person” as Exhibit Bdefined in Section 1445 of the Code (or if Seller is a disregarded entity, a certificate that Seller is a disregarded entity and the appropriate member of the Affiliated Group is not a “foreign person” as defined in Section 1445 of the Code);
(v) the Closing Financial Certificate;
(vi) a copy of the Seller Parent Guaranty executed by Seller Parent Guarantor;
(vii) a copy of the Transition Services Agreement executed by Parent and Seller;
(viii) each of the Required Third-Party Consents, to the extent required to be executed by a member of the Company Group, a member of the Seller Group, or any other Person (other than the Buyer Group); and
(ix) an instrument of discharge, termination and release, following repayment in accordance with Section 2.3 and Section 2.5(b)(i), of all of the Net Intercompany Debt owed by any member of the Company Group to the Seller Group in accordance with the Intercompany Debt Statement in a form reasonably satisfactory to Buyer.
(b) The OP Agreement and At the Articles;
(c) The Amendment Closing, Buyer will deliver or other evidence of cause to be delivered to Seller 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;following:
(i) [A bargain the Closing Payments (and sale deed in substantially the form attached as Exhibit Fevidence of receipt thereof), 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 wire transfer of immediately available funds to the extent necessary accounts which are designated by Seller at least three (3) Business Days prior 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 amounts determined pursuant 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 Estoppels, any Ground Lease Estoppels the certificates referred to in Sections 7.2(a) and any other tenant estoppel certificates, in 7.2(b);
(iii) a copy of the Transition Services Agreement executed by Buyer;
(iv) each caseof the Required Third-Party Consents, 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 required 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 executed by a Lender in connection with member of 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 Group; and
(pv) An assignment the Letter 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 applicableCredit.
Appears in 2 contracts
Sources: Share Purchase Agreement (SSI Southland Holdings, Inc.), Share Purchase Agreement (Trestle Transport, 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, through deliver the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), 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 a Contribution and Assumption Agreement substantially in the form attached hereto as Exhibit B;
(b) The OP Agreement for each Contributor, a certificate from the Operating Partnership that effective at the Closing the books and records of the ArticlesOperating Partnership will indicate that such Contributor is the holder of a number of Units equal to its Consideration;
(c) The Amendment or other evidence an affidavit from each Contributor in the form of Exhibit C, stating, under penalty of perjury, the Contributor’s United States Taxpayer Identification Number and that the Contributor is not a foreign person pursuant to section 1445(b)(2) of the transfer of OP Units to Contributor Code and by Contributor to its Participantsa comparable affidavit satisfying Massachusetts’ and any other state’s withholding requirements, if any;
(d) Evidence a certificate from each Contributor affirming that the representations and warranties made by such Contributor pursuant to this Agreement remain true and correct in all material respects as 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 chargeClosing Date;
(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)Operating Partnership Agreement;
(f) The release executed by Operating Partnership and intentionally omitted;
(g) a lockup agreement in the Company in favor of the employees and Affiliates of the Supervisor form attached hereto as Exhibit J;
(h) a Registration Rights Agreement 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 a Voting Agreement substantially in substantially the form attached hereto 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 PoliciesG;]
(j) A standard owner’s affidavit executed if requested by the Company, certified copies of all organizational documents for each Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiarythat is not an individual, effective as of the Closing, together 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 copies 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) such Contributors of this Agreement, any related documents and the documents listed in this Section 2.3Closing Documents;
(k) evidence reasonably satisfactory to the Company that the lender of any money borrowed by SCP, other than those lenders whose loans are being repaid before or immediately after the Closing, has consented to the transaction as required by any loan document or other evidence of indebtedness related to SCP;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, to the extent obtained documents reasonably requested by the Contributor in accordance with Section 2.1(b)(viii);Company or the Operating Partnership to assign, transfer, convey, contribute and deliver the SCP Interests, free and clear of all Encumbrances, and effectuate the transactions contemplated hereby; and
(m) The Operating Partnership all state and local transfer tax returns and any filings to be made in any applicable governmental jurisdiction in which 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 reasonably believes that it is required to file its organizational documentation or a Subsidiary, as applicable, in favor which the recording of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableContribution and Assumption Agreement is required.
Appears in 2 contracts
Sources: Contribution Agreement (STAG Industrial, Inc.), Contribution Agreement (STAG Industrial, Inc.)
Closing Deliveries. On (a) At the Closing, Parent shall deliver or cause to be delivered to Buyer:
(i) certificates representing the Shares, duly endorsed in blank or accompanied by sufficient instruments of transfer and bearing all requisite stock transfer stamps;
(ii) counterparts of each Transaction Document other than this Agreement to which a Seller Party is a party, duly executed by such Seller Party;
(iii) a duly executed “certificate of non-foreign status”, in a form reasonably acceptable to Buyer, that complies with the requirements of the Treasury Regulations under Section 1445(b)(2) of the Code;
(iv) a certificate of an officer of Parent and Seller executed by authorized senior officers of Parent and Seller, dated as of the Closing Date, certifying as to Parent’s and Seller’s compliance with the parties conditions set forth in Section 6.2(a) and Section 6.2(b) and the satisfaction of the other condition set forth in Section 6.2;
(v) a certificate of an officer of Parent in the form reasonably acceptable to the Buyer executed by an authorized senior officer of Parent, dated no more than five (5) days prior to the Closing Date, setting forth the true, accurate and complete information required to be listed on Section 3.17(a) of the Parent Disclosure Schedule, but updated as of the date of such certificate;
(vi) a certificate of good standing or equivalent certificate from the applicable jurisdiction of incorporation or formation of the Company and Abacus;
(vii) resignations of those directors, managers and officers of the Company and Abacus designated by Buyer prior to Closing as of the Effective Time;
(viii) two (2) originally signed copies of IRS Form 8023, with attached schedules as required, containing all information required by the IRS with respect to each shareholder (as defined in the Treasury Regulations) of the Company and Abacus, and signed by Parent and its appropriate Affiliates in accordance with the IRS instructions to such form;
(ix) evidence reasonably satisfactory to Buyer demonstrating that the Company is in direct possession of or has access through an escrow arrangement to the source code and object code of the PolicyPro Software and all deliverables set forth in the Software Agreements; and
(b) At the Closing, Buyer shall make, execute, acknowledge make the payments and deliver, contributions contemplated by Section 2.4 and also 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 followingParent:
(ai) The Contribution and Assumption counterparts of each Transaction Document other than this Agreement in the form attached hereto as Exhibit Bto which Buyer is a party, duly executed by Buyer;
(bii) The OP Agreement and the Articles;
(c) The Amendment or other evidence a certificate of Buyer duly executed by an authorized senior officer of Buyer, dated as of the transfer of OP Units Closing Date, certifying as to Contributor and by Contributor to its Participants;
(d) Evidence of Buyer’s compliance with the DTC Registered REIT Stock, which shall bear substantially the legend 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 Section 6.3(a) 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)(26.3(b);
(fiii) The release executed by Operating Partnership and the Company in favor a certificate 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 good standing from 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 of incorporation or its Subsidiary, effective as formation 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 partyBuyer; and
(piv) An assignment of Excluded Assets from two (2) original counterpart signatures to the Company, the Operating Partnership or a Subsidiary, as applicable, IRS Form 8023 referenced in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable2.3(a)(viii) above.
Appears in 1 contract
Sources: Stock Purchase Agreement
Closing Deliveries. On or before the day preceding the Closing Date, except for the parties funds from NM which 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 deposited on the Closing (collectively Date, each party hereto shall execute and deliver to the “Closing Documents”) to which it is a party or for which it is otherwise responsible that are necessary to carry out Title Company 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 followingapplicable documents described below:
(a) The three (3) counterparts to the Assignment of Membership Interests of the Contribution Entities, duly executed by each of Contributor and Assumption Agreement the Company in the form attached hereto as Exhibit B;
(b) The OP Agreement and three (3) counterparts to the ArticlesLLC Agreement;
(c) The Amendment a certificate of the secretary or other evidence officer of each of Contributor, NM and the Company certifying as to, and attaching a true, correct and complete copy of, the resolutions of the transfer board of OP Units directors, (if normally done in the ordinary course) (or other governing body performing an equivalent function) of Contributor, NM or the Company, as applicable, evidencing the authority of Contributor, NM or the Company, as applicable, to Contributor and enter into the transactions contemplated by Contributor to its Participantsthis Agreement;
(d) Evidence an affidavit from Contributor that it is not a foreign person” within the meaning of the DTC Registered REIT StockCode (the “FIRPTA Certificate), 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 chargeduly executed by Contributor;
(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 Form W-9 for each of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)and NM, duly executed by Contributor or NM, as applicable;
(f) The release executed a certificate of good standing for each of the Contributed Entities;
(g) such affidavits as the Title Company may reasonably require including but not limited to Contributed Entity's Affidavit as to Debts, Liens, Parties in Possession, GAP Coverage and a non-imputation affidavit and indemnity in form reasonably satisfactory to the Title Company;
(h) such other documents, instruments, agreements and/or certificates as may be required by Operating Partnership this Agreement or as may reasonably be required to carry out the terms and intent of this Agreement and the Company other Transaction Documents;
(i) a certification and reaffirmation from each Contributor and NM reaffirming the representations and warranties contained herein are true and correct in favor all material respects as of the employees and Affiliates of the Supervisor Closing Date in the form attached hereto as Exhibit ED;
(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 such other instruments as are reasonably required by Contributor to the extent necessary to enable the Title Company or otherwise required to issue to close the Operating Partnership or its Subsidiary, effective as of escrow and consummate the Closing, transaction in accordance 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”)terms hereof;
(k) The Operating Partnership Contributor’s, NM’s and the Company on the one hand and Contributor on the other hand shall provide Company’s closing instruction 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 Title Company) of this Agreement, any related documents and the documents listed in this Section 2.3;; and
(l) Any Tenant Estoppelsthe Closing Statement prepared by and mutually agreed to by Contributor, 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 NM 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: Contribution Agreement (Phillips Edison Grocery Center REIT III, 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 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:: 3.
(a) 3.1 The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;; 3.
3.2 A duly executed and notarized special warranty deed (b) the “Deed”), in the form provided for under the law of the State of Texas and otherwise in conformity with the custom in the jurisdiction where the 11 4819-7270-2207.1
3.3 The OP Agreement and the Articles;Agreement; 3.
(c) 3.4 The Amendment or other evidence of evidencing the transfer of OP Common Limited Units to the Contributor; 3.
3.5 The Contributor shall deliver all books and by Contributor records, title insurance policies, leases, lease files, contracts, stock certificates, original promissory notes, and other indicia of ownership or interest with respect to its Participants;
(d) Evidence of the DTC Registered REIT Stock, Property 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 Contributor’s possession of Contributor or which can be obtained through the Contributor’s reasonable efforts which are along with appropriate evidence of the Contributor’s assignment thereof; 3.
3.6 An affidavit from the Contributor, stating under penalty of perjury, the Contributor’s United States Taxpayer Identification Number and that the Contributor is not a foreign person pursuant to Section 1445(b)(2) of the Code and a comparable affidavit satisfying any applicable federal and state law and Section 4.2.7 and any other withholding requirements; 3.
3.7 The Contributor shall deliver a beneficiary’s statement or other evidence satisfactory to the Operating Partnership in its sole discretion confirming the outstanding principal balance and term of the Existing Loan to be assumed by the Operating Partnership; 3.
3.8 The Contributor shall deliver 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 Contributor’s Property Interest of Contributor directly, free and clear of all Liens (other than subject to the Permitted EncumbrancesLiens) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, quitclaim deeds and/or grant deeds (if transferred directly)deeds, 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 Contribution and Assumption Agreement or Deed or other Property Interest transfer documents is as required;; 3.
(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 3.9 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) 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 party3.3; 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 applicable3.
Appears in 1 contract
Sources: Contribution Agreement (Lodging Fund REIT III, Inc.)
Closing Deliveries. The Closing of the transactions contemplated under this Agreement shall be completed electronically, or at such other place Beacon, on behalf of the Underwriters, and the Company shall agree upon. At or before the Closing Time, the Underwriters shall have delivered to the Company:
(a) a completed and executed Subscription Agreement (including all certifications, forms and other documentation contemplated thereby or as may be required by applicable securities regulatory authorities) in a form acceptable to the Company, from each Subscriber;
(b) an invoice or written direction for the Underwriters’ Fee and expenses payable by the Company to the Underwriters pursuant to this Agreement; and
(c) such further documentation as may be contemplated herein or as the Company may reasonably require. At or before the Closing Time, the Company shall deliver to the Underwriters:
(a) via electronic deposit or represented by one or more certificates in definitive form, the Offered Securities (excluding the Warrant Shares) registered in the name of “CDS & Co.” or in such other name or names as Beacon may notify the Company in writing not less than 24 hours prior to the Closing Time for deposit into the electronic book based system for clearing, depository and entitlement services operated by CDS, or will be made and settled in CDS under the non-certificated inventory system;
(b) the requisite documentation as contemplated in Section 8 of this Agreement; and
(c) such further documentation as may be contemplated herein or as the Underwriters may reasonably require; against payment by the Underwriters to the Company of the aggregate purchase price for the Offered Securities (excluding the Warrant Shares) by wire transfer payable to the Company. On the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause Company will authorize Beacon to be made, executed, acknowledged and delivered, through hold back from 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 gross proceeds 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 Offering such amount 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 equal 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;
aggregate of: (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 Underwriters’ Fee; (ii) the Existing Loan Release or Underwriters’ Expenses; and (iii) 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 applicableCorporate Finance Fee.
Appears in 1 contract
Sources: Underwriting Agreement
Closing Deliveries. On At the Closing DateClosing, the parties shall makefollowing actions will take place, executeall of which will be deemed to have occurred simultaneously, acknowledge and deliver, no action will be deemed to have been completed or cause to be made, executed, acknowledged any document delivered until all such actions have been completed and all required documents delivered, through unless waived by the Power of Attorney relevant party for whose benefit such action should have been completed 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 followingsuch document should have been delivered:
(a) The Contribution Seller will deliver, or will cause to be delivered, to the Purchaser all instruments, duly executed, or other items which are required by the terms hereof to be delivered at the Closing, including:
(i) stock certificates representing the Seller’s ownership of the Shares, duly endorsed in blank or accompanied by stock transfer powers;
(ii) the Transition Services Agreement;
(iii) the Headquarters Sublease Agreement;
(iv) the Supply Agreement;
(v) a certification from the Seller satisfying the requirements of Treasury Regulation Section 1.1445-2(b)(2), dated as of the Closing Date, in form and Assumption Agreement in substance reasonably acceptable to the form attached hereto Purchaser, confirming that the Seller is not a foreign Person;
(vi) a certificate signed by an officer of the Seller as Exhibit B;required by Section 6.3(e); and
(vii) all such other agreements and other instruments as the Purchaser may reasonably request or as may be otherwise legally necessary to evidence and effect the Contemplated Transactions.
(b) The OP Agreement and Purchaser will deliver, or will cause to be delivered, to the Articles;Seller all instruments, duly executed, or other items which are required by the terms hereof to be delivered at the Closing, including:
(ci) The Amendment or other evidence of an amount equal to the transfer of OP Units Closing Purchase Price pursuant 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)(22.1(b);
(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 ETransition Services Agreement;
(giii) A copy of the most recent as-built survey of the Property, if anyHeadquarters Sublease Agreement;
(hiv) 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 requiredSupply Agreement;
(iv) [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 a certificate signed by Contributor to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as an officer 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 Purchaser 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 ClosingSection 6.2(e), as applicable, in each case, duly executed by the applicable party; and
(pvi) An assignment of Excluded Assets from all such other agreements and other instruments as the Company, Seller may reasonably request or as may be otherwise legally necessary to evidence and effect the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableContemplated Transactions.
Appears in 1 contract
Closing Deliveries. (a) On or prior to the Closing Date, the parties Company shall makeissue, execute, acknowledge and deliver, deliver or cause to be made, executed, acknowledged and delivered, through delivered to the Power of Attorney or Purchaser the Attorney-in-Fact following (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 DocumentsCompany Deliverables”) 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 in this Agreement, duly executed by the form attached hereto as Exhibit BCompany;
(bii) The OP Agreement and one or more certificates (as requested by Purchaser) evidencing 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 (orInitial Shares and, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii)applicable, 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 Option Shares, 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, each case 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 directlyrestrictive legends as provided in Section 5.6(a), 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 (Purchaser or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”its Affiliate(s);
(kiii) The Operating Partnership a registration rights agreement in form and substance reasonably satisfactory to the Company and the Purchaser (the “Registration Rights Agreement”) duly executed by the Company;
(iv) a legal opinion of Company on Counsel, dated as of the one hand Closing Date, which shall include, among other things, an opinion regarding the exemption of the Transaction from the registration requirements under the Securities Act, in substantially the form and Contributor on the other hand shall provide substance reasonably satisfactory to the other Company;
(v) a certified copy certificate of all appropriate corporate resolutions or partnership or limited liability company actions authorizing the execution, delivery and performance by the Operating Partnership and Secretary of the Company (if so requested by Contributorthe “Secretary’s Certificate”), dated as of the Closing Date, (a) and Contributor (if so requested certifying the resolutions adopted by the Operating Partnership Board of Directors or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the issuance of the Shares, and (b) certifying as to the incumbency of certain officers of 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 A;
(unless such Existing Loans are repaid at vi) the Compliance Certificate referred to in Section 6.1(h) hereof;
(vii) a certificate of good standing for each of the Company and its Subsidiaries issued by the Secretary of State (or comparable office) of the jurisdiction of its incorporation, CDFI and/or CDI, as appropriate, as of a date within five (5) Business Days of the Closing Date;
(viii) resignation letters in form and substance reasonably satisfactory to the Company and the Purchaser from the Resigning Directors; and
(ix) non-solicitation agreements in form and substance reasonably satisfactory to the Purchaser executed by the Resigning Directors.
(b) On or prior to Closing), as applicable, in each casethe Closing Date the Purchaser shall deliver or cause to be delivered to the Company the following (the “Purchaser Deliverables”):
(i) this Agreement, duly executed by the applicable partyPurchaser;
(ii) the Registration Rights Agreement, duly executed by the Purchaser;
(iii) a duly executed officer’s certificate in the form set forth in Exhibit B hereto; and
(piv) 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 1.4Purchase Price and, if applicable., the Option Purchase Price, in U.S. dollars and in immediately available funds, by wire transfer to the account designated by the Company as set forth below: Bank: Address: Account Name: Account Number: Routing Number:
Appears in 1 contract
Sources: Securities Purchase Agreement (Hanmi Financial Corp)
Closing Deliveries. On (a) At the Closing DateClosing, the parties Company 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 each Purchaser the following:
(ai) The Contribution and Assumption Agreement a Note, registered in the name of such Purchaser, in the principal amount indicated on Schedule A hereto under the heading “Note Principal Amount”;
(ii) a Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire such number of Underlying Shares indicated on Schedule A hereto under the heading “Warrant Shares”.
(iii) the legal opinion of Company Counsel, in the form attached hereto as of Exhibit BD, executed by such counsel and delivered to the Purchasers;
(iv) the Security Agreement executed by the parties thereto;
(v) the Subordination Agreement executed by the parties thereto;
(vi) the Deposit Account Control Agreement executed by the parties thereto;
(vii) copies of the Uniform Commercial Code financing statements and other documents or agreements required by the Security Agreement with respect to the security granted thereby, and evidence of the filing of such financing statement, documents or agreements;
(viii) duly executed Transfer Agent Instructions acknowledged by the Company’s transfer agent; and
(ix) any other document reasonably requested by the Purchasers or Purchaser Counsel.
(b) The OP Agreement and At the Articles;
(c) The Amendment Closing, each Purchaser shall deliver or other evidence of the transfer of OP Units cause to Contributor and by Contributor be delivered 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 (i) the purchase price indicated below such Purchaser’s name on transferability the signature page of this Agreement under the heading “Purchase Price”, in United States dollars and in immediately available funds, by wire transfer to a stockholder as set forth an account designated 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 writing 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 Effectpurpose, 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 Security Agreement and the Existing Loan Indemnity Subordination 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 applicablesuch Purchaser.
Appears in 1 contract
Sources: Securities Purchase Agreement (ProLink Holdings Corp.)
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[Intentionally Omitted];
(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 An assignment of 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 1 contract
Sources: Contribution Agreement (Empire State Realty Trust, 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 and Assumption Agreement in the form attached hereto as Exhibit BA;
(b) The OP Agreement and the ArticlesAgreement;
(c) The Amendment or Registration Rights Agreement between the Contributor, certain other evidence of parties and the transfer of OP Units to Contributor and by Contributor to its ParticipantsCompany;
(d) Evidence All books and records, contracts and other indicia of Contributor’s ownership with respect to the Partnership Interest (and any subsidiary of the DTC Registered REIT Stock, Partnership) necessary to affect the contribution under Section 1.1 and which shall bear substantially the legend set forth are in the Articles Contributor’s possession or a written statement which can be obtained through the Contributor’s reasonable efforts along with appropriate evidence 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 chargeContributor’s assignment thereof;
(e) An affidavit from Contributor (orthe Contributor, if stating under penalty of perjury, the Contributor’s United States Taxpayer Identification Number and that the Contributor is not a disregarded entity within the meaning of foreign person pursuant to Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes1445(b)(2) of non-foreign status the Code and a comparable affidavit satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)California and any other withholding requirements;
(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 directlyContributor’s Partnership Interest, 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, 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 Contribution and Assumption Agreement or deed or other Property Interest Interests transfer documents is required;; and
(ig) [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) 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: Contribution Agreement (Digital Realty Trust, Inc.)
Closing Deliveries. On In addition to any other documents to be delivered under other provisions of this Agreement, at the Closing Date, the parties Closing:
(a) The Company 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 to Parent:
(described i) resignation letters (in Article 5 hereofform reasonably satisfactory to Parent), effective as of the OP Agreement Effective Time, evidencing the resignation of each of the officers and directors of the Company and each of its Subsidiaries that Parent has requested to resign as of Closing, executed by each such officer and director (or, in the event any such officer or director refuses to execute such resignation letters, evidence (in form reasonably satisfactory to Parent) of removal of such Person from such position(s));
(ii) pay-off letters with respect to all unpaid Indebtedness (other than Center-Level Debt) of the Company, in a form reasonably satisfactory to Parent, providing for, upon the payment of all unpaid Indebtedness (other than Center-Level Debt) owed by the Company, the termination of all Encumbrances (other than such Encumbrances securing Center-Level Debt) held by the applicable lenders with respect to the assets of the Company and its Subsidiaries (including the authorization of the filing by Parent of all necessary UCC-1 termination statements and other legal documents and items required to be executed or delivered necessary documentation in connection with the termination of the lenders’ security interests), executed by the lenders;
(iii) a properly executed affidavit reasonably satisfactory to Parent and that complies with Section 1445 of the Code and the Treasury Regulations issued thereunder that states that shares in the Company do not constitute “United States real property interests” within the meaning of Code Section 897(c);
(iv) a certificate executed by the chief executive officer of the Company as to the satisfaction of the conditions set forth in Sections 5.1(a), (b), (f), and (g);
(v) the certificate of incorporation (or similar Organizational Documents) of the Company and each of its Subsidiaries (certified by the Secretary of State of the applicable jurisdiction of incorporation or formation) and a certificate of good standing from the applicable jurisdiction of incorporation and each other jurisdiction in which the Company and its Subsidiaries are qualified to do business, each dated within ten (10) Business Days prior to the Closing Date;
(collectively vi) a certificate of the “Closing Documents”) to which it is a party Secretary of the Company certifying, as complete and accurate as of the Closing, attached copies of the bylaws of the Company, certifying and attaching all requisite resolutions or for which it is otherwise responsible that are necessary to carry out actions of the intention Company’s board of directors and stockholders approving the execution and delivery of this Agreement and the other consummation of the transactions contemplated hereby, and certifying to take place the incumbency of the officers of the Company executing this Agreement and any other documents being executed by the Company in connection therewith. The Closing Documents and other items to be delivered at with the Closing shall be consummation of the following:transactions contemplated hereby; and
(avii) The Contribution and Assumption the Escrow Agreement in the form attached hereto as Exhibit B;B executed by Stockholders’ Representative.
(b) The OP Agreement and the Articles;Parent shall deliver or cause to be delivered to:
(ci) The Amendment or other evidence the Stockholders’ Representative, a certificate executed by the Parent as to the satisfaction 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 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 Sections 5.2(a) and without charge;(b); and
(eii) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii)Stockholders’ Representative, 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 Escrow Agreement 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 B 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” Parent 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 applicableEscrow Agent.
Appears in 1 contract
Sources: Merger Agreement (Amsurg Corp)
Closing Deliveries. On (a) At the Closing DateClosing, the parties shall make, execute, acknowledge and deliver, Serruya 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 ARI 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 certificate executed by Operating Partnership and the Company in favor an officer of the employees and Affiliates of the Supervisor in the form attached hereto Serruya certifying that, except 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 otherwise stated in such form as certificate (provided that acceptance of such certificate shall not constitute or be deemed to constitute a waiver of any condition): (A) each of Serruya’s representations and warranties made in Section 4.01 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 accurate in all material respects as of each the date of their respective representations this Agreement and warranties as of the Implementation Date as if made on the Implementation Date; and (B) Serruya has fulfilled, performed or complied with, in all material respects, all covenants contained in this Agreement at the Closing Date (except to the extent that any representation be fulfilled, performed or warranty speaks as of an earlier date, in which case complied with by 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);
(ii) the Shareholders Agreement;
(iii) the Private Placement Subscription Agreement;
(iv) the ARI Subscription Agreement;
(v) share certificates representing: (i) 10 Shares registered in the name of ARI pursuant to the ARI Subscription Agreement together with evidence satisfactory to ARI that ARI or its nominee(s) have been entered upon the books of the Joint Venture as the holder of such shares; and
(vi) such other documents as ARI may reasonably request for the purpose of (A) evidencing the accuracy of any of Serruya’s representations and warranties made in Section 4.01, (B) evidencing the performance by Serruya of, or the compliance by Serruya with, any covenant or obligation required to be performed or complied with by Serruya under this Agreement; (C) evidencing the satisfaction of any condition for the benefit of Serruya referred to in this Agreement; or (D) otherwise facilitating the consummation or performance of any of the transactions contemplated by this Agreement.
(b) At the Closing, ARI and/or Aleafia Parent will deliver or cause to be delivered to the Joint Venture $4,000,000 by wire transfer of immediately available funds in exchange for the issuance of 99 Shares pursuant to the ARI Subscription Agreement.
(c) At the Closing, ARI and/or Aleafia Parent will deliver or cause to be delivered to Serruya the following:
(i) a certificate executed by an officer of ARI certifying that, except as otherwise stated in such certificate (provided that acceptance of such certificate shall not constitute or be deemed to constitute a waiver of any condition): (A) each of the representations and warranties made by ARI and/or Aleafia Parent, as applicable, in each caseSection 4.02 is accurate in all material respects as of the date of this Agreement and as of the Implementation Date as if made on the Implementation Date; and (B) ARI and/or Aleafia Parent, duly executed as applicable, has fulfilled, performed or complied with, in all material respects, all covenants contained in this Agreement to be fulfilled, performed or complied with by it at or prior to Closing;
(ii) the applicable partyShareholders Agreement;
(iii) the Private Placement Subscription Agreement;
(iv) the ARI Subscription Agreement; and
(pv) An assignment such other documents as Serruya may reasonably request for the purpose of: (A) evidencing the accuracy of Excluded Assets from any of ARI’s representations and warranties made in Section 4.02; (B) evidencing the Companyperformance by ARI of, or the Operating Partnership compliance by ARI with, any covenant or a Subsidiary, as applicable, obligation required to be performed or complied with by ARI under this Agreement; (C) evidencing the satisfaction of any condition for the benefit of Serruya referred to in favor this Agreement; or (D) otherwise facilitating the consummation or performance of Contributor, to achieve any of the distributions transactions contemplated under Section 1.4, if applicableby this Agreement.
Appears in 1 contract
Closing Deliveries. On At the Closing Date, Closing:
(a) the parties Sellers shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney to Purchaser 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 followingits designees:
(ai) The Contribution and Assumption Agreement a certification from each Seller pursuant to Treasury Regulation Section 1.1445-2(b)(2) substantially in the form attached hereto as Exhibit B; provided, that Purchaser’s sole right in the event the Sellers fail to cause such certificates to be delivered pursuant to this clause (i) shall be to make an appropriate withholding to the extent required by Section 1445 of the Code;
(bii) The OP Agreement and the Articles;
(c) The Amendment or other evidence an assignment of the transfer of OP Units Interests to Contributor Purchaser, in form and by Contributor substance satisfactory to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear Purchaser 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 EC, in each case duly executed by each Seller;
(giii) A copy of such other agreements, documents, instruments and writings as are required to be delivered by Sellers at or prior to the most recent as-built survey of Closing pursuant to Section 6.02 or as are otherwise reasonably required in connection with this Agreement.
(b) Purchaser shall:
(i) pay the Property, if anyPurchase Price in accordance with Section 2.02;
(hii) Any other documents to the extent 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 Debt Pay-Off Letters have been obtained, pay to assigneach party holding Paid-Off Debt, transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens as addressed (other than the Permitted Encumbrances) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable) in the Debt Pay-Off Letters, grant deeds the applicable portion of the Paid-Off Debt, in such amounts and to such accounts as set forth in the Debt Pay-Off Letters; and
(if transferred directly)iii) deliver, assignments of ground leasesor cause to be delivered, air space leases to Sellers the Parent Guarantee and space leasessuch other agreements, bills of saledocuments, general assignments 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 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 be delivered 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 Purchaser at or prior to the Closing and (ii) Date pursuant to the Existing Loan Release terms of Section 6.03 or the Existing Loan Indemnity Agreement as are otherwise reasonably required 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 applicableconnection with this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Martin Midstream Partners Lp)
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 Subtenant shall duly execute and deliver on Closing:
(i) the Sublease, the commencement date of which will be the date of Closing;
(ii) the Contribution and Assumption Agreement Agreement, substantially in the form of the agreement attached hereto as Exhibit Schedule B;
(iii) evidence the Reserve Fund Account has been established as required under the Sublease together with written agreement by the Subtenant, in a form acceptable to the Sublandlord acting reasonably, securing the amount required to be contributed monthly to the Subtenant’s reserve account to fund the Capital Repairs;
(iv) evidence of insurance as required under the Sublease;
(v) certified copy of the directors' resolution of the Subtenant authorizing the transaction;
(vi) an acknowledgement the Remediation Work has been completed to the Subtenant’s satisfaction except as set out in Section 6 above;
(vii) an acknowledgement that all Turnover Deliveries have been provided to it;
(viii) Declaration of Compliance with Anti-Harassment/Discrimination Legislation & City Policy attached to the Contribution Agreement as Schedule "E";
(ix) evidence of transfer of utilities; and
(x) all other agreements and documentation and all acknowledgements and directions and other documentation required to complete this transaction and to register a satisfactory notice of the Sublease on title to the Demised Premises
(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 Sublandlord 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 duly execute 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;on Closing:
(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”)Sublease;
(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 Contribution Agreement;
(iii) the Turnover Deliveries;
(iv) such keys, combination or other access devices required to access 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 partyDemised Premises; and
(pv) An assignment all other agreements and documentation and all acknowledgements and directions and other documentation required to complete this transaction and to register a satisfactory notice of Excluded Assets from the Company, Sublease on title to the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicablePremises.
Appears in 1 contract
Sources: Sublease Agreement
Closing Deliveries. On At the Closing DateClosing, the Investor will pay the Committed Purchase Amount in cash by wire transfer of immediately available funds to an account designated upon reasonable advance notice by the Company. At the Closing, 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 hereof)such third party as may be applicable, 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:
(ai) Share Certificates, evidence of delivery of uncertificated shares of Common Stock by book-entry, and/or other evidence of the transfer of Common Stock to the Investor;
(ii) The Contribution Registration Rights Agreement between the Investor, certain other parties and Assumption Agreement the Company substantially in the form attached hereto as Exhibit B;
A, (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“Registration Rights Agreement”);
(fiii) The release Investor shall have executed by Operating Partnership and delivered a letter to the Company setting forth certain representations and undertakings related to the Investor’s ownership of Common Stock in favor a form reasonably acceptable to the board of directors of the employees Company and Affiliates which allows the board of directors of the Supervisor Company to reasonably conclude that the ownership waiver and Excepted Holder Limit (as defined in the Company’s charter) described in Section 2.4(iv) will not jeopardize the Company’s status as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and make the other determinations required by the Company’s charter in connection with granting such waiver and Excepted Holder Limit;
(iv) The Lock-up Agreement signed by the Investor 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 B. If requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assignCompany, 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 hand, or the Investor, on the other hand hand, each party shall provide to the other requesting party 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) such party 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 applicable2.4.
Appears in 1 contract
Closing Deliveries. On The following deliveries will be made at the Closing Date, to effect the parties shall make, execute, acknowledge Transactions contemplated by Article I:
(i) The Parties hereto will execute and deliver, deliver to one another this Agreement;
(ii) ViSalus will file or cause to be made, executed, acknowledged and delivered, through filed the Power Amendment to Articles 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 Incorporation with the Closing (collectively Secretary of State 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 State 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 BNevada;
(biii) The OP Agreement and ViSalus will file or cause to be filed the ArticlesAmendment to Certificate of Designation with the Secretary of State of the State of Nevada;
(civ) The Amendment or other evidence ViSalus will deliver to the holders of the transfer of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Preferred Stock, which shall bear substantially upon delivery by them of their certificates representing such Preferred Stock, duly executed and validly issued stock certificates evidencing the legend shares of New Common Stock in the amounts set forth in Schedule A (provided such deliveries may be made following 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)(2Closing);
(fv) The release executed by Operating Partnership ViSalus and Blyth will duly execute and deliver the Company in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit ETransition Services Agreement;
(gvi) 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 Lenders will duly execute 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 partyDebt Commitments; and
(pvii) An assignment ViSalus will deliver to the holders of Excluded Assets from Preferred Stock a statement prepared in accordance with Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3), together with the Companynotice required to be filed with the Internal Revenue Service and written authorization, for such holders to timely file or cause to be timely filed such statement and notice with the Operating Partnership or Internal Revenue Service. The documents and agreements listed above in this Section 1.2 are hereinafter referred to collectively as the “Transaction Documents” and individually as a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicable“Transaction Document”.
Appears in 1 contract
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 followingdate hereof:
(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 and delivered by Borrower;
(bii) The OP the Borrower Pledge Agreement duly executed and the Articles;
delivered by Borrower, together with (cA) The Amendment all certificates (or other evidence acceptable to Administrative Agent) evidencing one hundred percent (100%) of the transfer issued and outstanding Equity of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence each Subsidiary of the DTC Registered REIT StockBorrower of every class, which certificates shall bear substantially the legend set forth be duly endorsed or accompanied by appropriate stock powers (as applicable) executed 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 blank, and without charge;
(eB) 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 other agreements 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;
(iiii) [A bargain the Subsidiary Pledge Agreements duly executed and sale deed delivered by each First Tier Subsidiary, together with (A) all certificates evidencing one hundred percent (100%) of the issued and outstanding Equity of each Subsidiary of each such First Tier Subsidiary of every class, which certificates shall be duly endorsed or accompanied by appropriate stock powers (as applicable) executed in substantially the form attached as Exhibit F, or in blank (provided that no such form as is customary certificates shall be required in the applicable jurisdiction case of any Equity which the Title Company shall require in order to issue the Title Policies;]
(j) A standard owner’s affidavit executed is not evidenced 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 forma certificated security), with and (B) such endorsements thereto as the Operating Partnership may reasonably request (other agreements and writings, including, without limitation, non-imputation endorsementsUCC-1 financing statements, in form and substance satisfactory to Administrative Agent;
(iv) or Facility Guarantees duly executed and delivered by Operating and each other Subsidiary of Borrower;
(iiv) the Mortgages duly executed and delivered by Operating, together with such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (other assignments, conveyances, agreements and other writings, including, without limitation, date-down, “Fairway” and co-insurance endorsements)UCC-1 financing statements, in either event with coverage for form and substance satisfactory to Administrative Agent;
(vi) a copy of the Property equal to the an amount reasonably acceptable to the Operating Partnershipcertificate of limited partnership, articles of organization, articles or certificate of incorporation or comparable charter documents, and with all amendments thereto, of each Credit Party accompanied by a tie-in endorsement with respect to all Contributed Properties located in any state for which certificate that such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurancecopy is true, correct and complete, and levels dated within ten (10) days of reinsurance for the Property as reasonably acceptable to date hereof, issued by the Operating Partnershipappropriate Governmental Authority of the jurisdiction of incorporation or organization of each Credit Party, insuring fee simple and/or leasehold title and accompanied by a certificate of the Secretary or comparable Authorized Officer of each Credit Party (as applicable) to all real property that such copy is true, correct and improvements comprising complete on the Property in the name date hereof;
(vii) a copy of the Operating Partnership partnership agreement, bylaws 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 Credit Party (or a Subsidiary thereofas applicable) that such copy is true, correct and complete as of the Operating Partnership may designate), subject only date hereof;
(viii) certain certificates and other documents issued by the appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested relating to the Permitted Encumbrances 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;
(collectivelyix) a certificate of incumbency of all officers of each Credit Party (to the extent a party to any Loan Paper) who will be authorized to execute or attest to any Loan Paper, dated as of the “Title Policies”date hereof, executed by the Secretary or comparable Authorized Officer of each such Credit Party (as applicable);
(kx) The Operating Partnership copies of resolutions or comparable authorizations approving the Loan Papers and authorizing the transactions contemplated by this Agreement 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 executionLoan Papers, delivery and performance duly adopted by the Operating Partnership Board of Directors or comparable governing 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 the Company correct copies of resolutions duly adopted at a meeting of or (if so requested permitted by Contributor) and Contributor (applicable Law and, if so requested required by such Law, by the Operating Partnership partnership agreement, bylaws or other charter documents of such Credit Party) by the Company) unanimous written consent of this Agreementthe Board of Directors or comparable governing authority of each 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 related documents respect, and are in full force and effect as of the documents listed in this Section 2.3date hereof;
(lxi) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in copies of consents of partners of each case, Credit Party which is a partnership (to the extent obtained required) to the transactions contemplated by the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership this Agreement 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 casePapers, duly executed by each partner of such Credit Party required to consent to such transactions, accompanied by certificates of the applicable partySecretary or comparable officer of Borrower that such copies are true and correct copies of all consents of the partners of the Credit Parties required to be executed and granted pursuant to such Credit Party's partnership agreement and all other comparable charter documents of such Credit Party;
(xii) an opinion of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Credit Parties, dated as of 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;
(xiii) an opinion of ▇▇▇▇▇▇▇, Haughey, Hanson, Toole & ▇▇▇▇▇▇▇▇, special Montana counsel for Administrative Agent, dated as of the Closing Date, favorably opining as to the enforceability of the Mortgages in Montana and otherwise in form and substance satisfactory to Administrative Agent;
(xiv) an opinion of Hinkle, Hensley, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special New Mexico counsel for Administrative Agent, dated as of the Closing Date, favorably opining as to the enforceability of the Mortgages in New Mexico and otherwise in form and substance satisfactory to Administrative Agent;
(xv) an opinion of ▇▇▇▇ ▇▇▇▇▇▇▇, P.C., special North Dakota counsel for Administrative Agent, dated as of the Closing Date, favorably opining as to the enforceability of the Mortgages in North Dakota and otherwise in form and substance satisfactory to Administrative Agent;
(xvi) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special Oklahoma counsel for Administrative Agent, dated as of the Closing Date, favorably opining as to the enforceability of the Mortgages in Oklahoma and otherwise in form and substance satisfactory to Administrative Agent;
(xvii) an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special Utah counsel for Administrative Agent, dated as of the Closing Date, favorably opening as to the enforceability of the Mortgages in Utah and otherwise in form and substance satisfactory to Administrative Agent;
(xviii) 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;
(xix) a certificate dated the Closing Date 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, (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;
(xx) a Certificate of Ownership Interests signed by an Authorized Officer of Operating in the form of ERROR! REFERENCE SOURCE NOT FOUND. attached hereto dated the Closing Date;
(xxi) certificates from Borrower's insurance broker dated not more than twenty (20) days prior to the Closing Date setting forth the insurance maintained by Borrower, and stating that such insurance is in full force and effect and that all premiums due have been paid; and
(pxxii) 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 Operating's 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 conditions or circumstances 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 applicable8.14 hereof are inaccurate in any respect.
Appears in 1 contract
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 Concurrently with the execution and Assumption Agreement in delivery of this Agreement, the form attached hereto as Exhibit B;Company shall deliver to Purchaser a copy of each Transaction Document, executed by each party thereto other than Purchaser.
(b) The OP Agreement Concurrently with the execution 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, Company shall deliver to the extent obtained by Purchaser the Contributor in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership legal opinion of ▇▇▇▇▇▇ and the Company on the one hand and Contributor on the other hand shall provide ▇▇▇▇▇▇ P.A., counsel 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 Company, addressed to the extent that any representation or warranty speaks as of an earlier datePurchaser and dated concurrently with this Agreement, 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 Annex V to this Agreement.
(unless such Existing Loans are repaid at c) Concurrently with the execution and delivery of this Agreement, the Company shall deliver to the Purchaser a certificate of the Company signed on behalf of the Company by the principal executive officer and by the chief financial or prior to Closing), as applicablechief accounting officer of the Company, in their capacities as such, dated the date of this Agreement, to the effect that each caseof such persons has carefully examined this Agreement and each of the other Transaction Documents, duly executed by and that:
(i) the applicable partyrepresentations and warranties of the Company and the Guarantors in this Agreement and each of the other Transaction Documents are true and correct;
(ii) no stop order suspending the qualification or exemption from qualification of the Securities shall have been issued and no proceedings for that purpose shall have been commenced or, to the knowledge of the Company, be contemplated;
(iii) since the date of the most recent financial statements included in the SEC Filings, there has been no material adverse change in the condition, financial or otherwise, business, prospects or results of operation of the Company and the Subsidiaries, taken as a whole;
(iv) none of the SEC Filings or any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(pv) An assignment subsequent to the respective dates as of Excluded Assets from which information is given in the SEC Filings: (A) neither the Company nor any of the Subsidiaries has incurred up to and including the date of this Agreement, other than in the ordinary course of its business, any material liabilities or obligations, direct or contingent; (B) neither the Company nor any of the Subsidiaries has paid or declared any dividends or other distributions on its capital stock; (C) neither the Company nor any of the Subsidiaries has entered into any material transactions not in the ordinary course of business; (D) there has not been any change in the capital stock (other than pursuant to the Company’s stock option plan or stock purchase plan or the exercise of warrants outstanding on such respective dates) or the short-term or long-term debt of the Company or any of the Subsidiaries; (E) neither the Company nor any of the Subsidiaries has sustained any material loss or damage to its property or assets, whether or not insured; and (F) there is no litigation which is pending or, to the Company’s knowledge, threatened or contemplated against the Company or any of its Affiliates which would, if decided adversely, have a Material Adverse Effect.
(d) Concurrently with the execution and delivery of this Agreement, the Company shall have delivered to Purchaser a certificate signed on behalf of the Company by the secretary of the Company, in his capacity as such, dated the Operating Partnership date of this Agreement, as to:
(i) the absence of any contemplated proceeding for the merger, consolidation, liquidation or a dissolution of the Company or any Subsidiary, as applicablethe case may be, or the sale of all or substantially all of its assets;
(ii) the due adoption and full force and effect of the By-laws of the Company (with a copy of the By-laws attached);
(iii) resolutions adopted by the Board of Directors of the Company and/or a committee thereof authorizing the Securities and the consummation of the transactions contemplated by this Agreement and each of the other Transaction Documents (with copies of such resolutions attached); and
(iv) the incumbency, authorization and signatures of those officers of the Company signing this Agreement, each of the other Transaction Documents and/or any certificate delivered in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableconnection therewith.
Appears in 1 contract
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 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 Closing Documents and other items to be delivered at the Closing shall be include, without limitation, the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit B, as applicable;
(b) The OP Agreement and the ArticlesAgreement;
(c) The Amendment or OP Unit Certificates, and/or other evidence of the transfer issuance of OP Units to Contributor and by Contributor to its Participantsthe Contributor;
(d) Evidence All books and records, title insurance policies, the Assumed Agreements, lease files, contracts, of the DTC Registered REIT Stock, which shall bear substantially Company and each Contributed Company (and any subsidiary of the legend set forth Contributed Companies) that are in the Articles possession of the Contributor or a written statement of information which can be obtained through the Contributor’s reasonable efforts, provided that the Company will furnish a full statement about certain restrictions on transferability Contributor shall have continuing access to a stockholder as set forth in the Articles on request such books and without chargerecords for purposes of any required Tax filings, Tax disputes or other legitimate purposes;
(e) An affidavit from the Contributor (orstating, if under penalty of perjury, the Contributor’s United States Taxpayer Identification Number and that the Contributor is not a disregarded entity within the meaning of foreign person pursuant to Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes1445(b)(2) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)Code in form and substance acceptable to the Operating Partnership;
(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 the Contributor or which can be obtained through the 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 Company Interests and other Contributed Assets, 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”);
(kg) The Operating Partnership and the Company Company, on the one hand hand, and Contributor the Contributor, on the other hand 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 the Contributor) and the 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);
(mh) The Operating Partnership and the Company Company, on the one hand hand, and Contributor the Contributor, on the other hand hand, shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties herein and 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 such 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;; and
(i) All Any 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: Contribution Agreement (Strawberry Fields REIT, Inc.)
Closing Deliveries. On (a) At the Closing DateClosing, the parties Company 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 Buyer 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 resignations of the transfer directors (or equivalent) of OP Units to Contributor and by Contributor to its Participants;
(d) Evidence each member of the DTC Registered REIT Stock, which shall bear substantially the legend set forth in the Articles Company Group specified by Buyer from his or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder her position as set forth in the Articles on request and without charge;
director (e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iiior equivalent), 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 the certificates referred 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” in Sections 7.3(a) 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”7.3(b);
(kiii) The Operating Partnership a copy of the Escrow Agreement duly executed by the Escrow Agent, the Company 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 2.3Seller Representative;
(liv) Any Tenant Estoppelsevidence reasonably satisfactory to Buyer of the termination and full and complete settlement of, without any Ground Lease Estoppels and any Liability of the Surviving Company Group after the Closing, the agreements set forth under the heading “Affiliate Agreements” in Section 4.13(a) of the Disclosure Schedule; and
(v) all other tenant estoppel certificatesdocuments required to be delivered by the Company or the Seller Representative to Buyer at the Closing pursuant to this Agreement.
(b) At the Closing, Buyer shall deliver or cause to be delivered the following:
(i) the Preliminary Merger Consideration in each case, immediately available funds to the extent obtained by Seller Representative as provided in Section 3.5;
(ii) the Contributor certificates referred to in accordance with Section 2.1(b)(viiiSections 7.2(a) and 7.2(b);
(miii) The Operating Partnership a copy of the Escrow Agreement duly executed by the Escrow Agent and Buyer and the Company on the one hand and Contributor on the other hand shall provide Escrow Funds in immediately available funds to the Escrow Agent as provided in Section 3.3; and
(iv) all other a certification regarding documents required to be delivered by Buyer and Merger Sub to the accuracy in all material respects of each of their respective representations Company and warranties in this Agreement Seller Representative at the Closing Date (except pursuant 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);this Agreement.
(nc) Any booksAt the Closing, records and Organizational Documents relating the Company shall deliver or cause to Contributor that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;
delivered to: (i) All documents reasonably required the Seller Representative, or such other party as may be directed by a Lender the Seller Representative, the Seller Allocable Expenses in connection with the assumption or prepayment of an Existing Loan at or prior to Closing immediately available funds as provided in Section 3.4 and (ii) the Existing Loan Release or Buyer an affidavit by an authorized officer stating under penalties of perjury, that the Existing Loan Indemnity Agreement in substantially Company is not and has not been a United States real property holding corporation within 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 meaning of Code Section 897(c)(2) during the applicable party; and
(p) An assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, period described in favor of Contributor, to achieve the distributions contemplated under Code Section 1.4, if applicable897(c)(1)(A)(ii).
Appears in 1 contract
Sources: Merger Agreement (Pq 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 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) 3.3.1 The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
3.3.2 A duly executed and notarized special warranty deed (b) the “Deed”), in the form provided for under the law of the State of Texas and otherwise in conformity with the custom in the jurisdiction where the Property is located and in form and substance satisfactory to the Operating Partnership and Contributor, conveying good, indefeasible and marketable fee simple title to the Property, subject only to the Permitted Liens;
3.3.3 The OP Agreement and the ArticlesAgreement;
(c) 3.3.4 The Amendment or other evidence of evidencing the transfer of OP Series T Limited Units to the Contributor and by Contributor to its Participantsunder Exhibit D;
(d) Evidence 3.3.5 The Contributor shall deliver all books and records, title insurance policies, leases, lease files, contracts, original promissory notes, and other indicia of ownership or interest with respect to the DTC Registered REIT Stock, Property 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 Contributor’s possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are along with appropriate evidence of the Contributor’s assignment thereof;
3.3.6 An affidavit from the Contributor, stating under penalty of perjury, the Contributor’s United States Taxpayer Identification Number and that the Contributor is not a foreign person pursuant to Section 1445(b)(2) of the Code and a comparable affidavit satisfying any applicable federal and state law and Section 4.2.7 and any other withholding requirements;
3.3.7 The Contributor shall deliver a beneficiary’s statement or other evidence satisfactory to the Operating Partnership in its sole discretion confirming the outstanding principal balance and term of the Existing Loan to be assumed by the Operating Partnership;
3.3.8 The Contributor shall deliver 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 Contributor’s Property Interest of Contributor directly, free and clear of all Liens (other than subject to the Permitted EncumbrancesLiens) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, quitclaim deeds and/or grant deeds (if transferred directly)deeds, 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 Contribution and Assumption Agreement or Deed or other Property Interest transfer documents is as 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 3.3.9 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) of this Agreement, any related documents and the documents listed in this Section 2.33.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, 3.3.10 The Contributor shall deliver to the extent obtained by Operating Partnership possession of the Contributor in accordance with Section 2.1(b)(viii)Property;
(m) 3.3.11 The Operating Partnership and the Company Partnership, on the one hand hand, and Contributor the Contributor, on the other hand hand, shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties herein and in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier such date, in which case . The Contributor shall provide a certification that it must has performed the respective covenants required to be true and correct only as of that earlier date and except for such representations and warranties that are qualified performed by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects)them prior to Closing;
(n) Any books, records 3.3.12 The Contributor shall deliver an affidavit as may be required by the Title Company to delete from the Title Policy the standard exceptions and Organizational Documents relating to Contributor that are in the possession of Contributor or which can issue any title endorsements as may 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.Partnership;
Appears in 1 contract
Sources: Contribution Agreement (Lodging Fund REIT III, 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, through deliver the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), 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 a Contribution and Assumption Agreement duly executed and delivered by each Contributor substantially in the form attached hereto as Exhibit BC;
(b) The OP Agreement for each Contributor, a certificate from the Operating Partnership that effective at the Closing the books and records of the ArticlesOperating Partnership will indicate that such Contributor is the holder of a number of Units equal to the Unit Consideration set forth on Exhibit D;
(c) The Amendment or other evidence of the transfer of OP Units to an affidavit duly executed and delivered by each 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;
(gF, stating, under penalty of perjury, such Contributor’s United States Taxpayer Identification Number and that such Contributor is not a foreign person pursuant to Section 1445(b)(2) A copy of the most recent as-built survey of the PropertyCode and a comparable affidavit satisfying any applicable state’s withholding requirements, if any;
(hd) Any all title insurance policies, leases, lease files, letters of credit, contracts, stock certificates, membership certificates, original promissory notes held by a Participating Entity and other documents indicia of ownership with respect to each Participating Entity that are in the Contributors’ possession of Contributor or which that can be obtained through Contributor’s reasonable efforts in the Contributors’ capacity as a direct or indirect owner of any Participating Entity shall be delivered or made available to the Company;
(e) a certificate duly executed and delivered by each Contributor certifying as to the matters noted in Section 2.1(a) and Section 2.1(b) in the form reasonably acceptable to the Company;
(f) a joinder to the Operating Partnership Agreement duly executed and delivered by each Contributor in the form required by the Company;
(g) a Lock-Up Agreement duly executed and delivered by each Contributor in the form required by the managing underwriters of the Public Offering, which agreement shall provide for a lock-up period of the Units and any shares of Common Stock for which the Units may be redeemed for a period of not more than one year, subject to a customary 18-day extension if the Company issues an earnings release or makes a material announcement on or about the time that such one-year lock-up will expire;
(h) certified copies of all organizational documents for each Contributor, together with certified copies of all appropriate corporate, limited liability company or trust actions authorizing the execution, delivery and performance by such Contributor of this Agreement, any related documents and the Closing Documents;
(i) evidence reasonably satisfactory to the Company that the Trust is the owner of 100% of the capital stock or membership interests, as applicable, of Dellwood Acquisitions and ▇▇▇▇ Acquisitions on the terms and conditions reasonably required by the Company and consistent with this Agreement;
(j) evidence reasonably satisfactory to the Company that the Newco Contribution Transaction has been consummated on the terms and conditions reasonably required by the Company and consistent with this Agreement;
(k) evidence reasonably satisfactory to the Company that the lender of any borrowed money secured by a mortgage or deed of trust disclosed in the Title Reports, other than those lenders whose loans are being repaid before or immediately after the Closing, has consented to the transaction as required by any loan document, deed of trust, mortgage or other evidence of indebtedness related to any Property;
(l) 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 directlyParticipating Equity Interests, free and clear of all Liens (other than the Permitted Encumbrances) Liens, and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds ; and
(if transferred directly), assignments of ground leases, air space leases and space leases, bills of sale, general assignments and m) 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 reasonably believes that it is required to file its partnership organizational documentation or in which the recording of deeds or other Property Interest transfer documents any 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 1 contract
Closing Deliveries. On Simultaneously with the Closing DateClosing, the parties Company, ------------------ the Stockholders and the Optionholders 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 PQC the following:
(a) The Contribution and Assumption an Instrument of Joinder to Stockholders Agreement executed by each of the Stockholders in the a form attached hereto as Exhibit Breasonably acceptable to PQC;
(b) The OP certificates of duly authorized officers of the Company, dated the Closing Date, setting forth the resolutions of the Board of Directors and Stockholders of the Company authorizing the execution and delivery by the Company of this Agreement and the Articlesconsummation of the transactions contemplated hereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended;
(c) The Amendment or other evidence a report of a reputable lien search firm indicating that there are no liens of record against any of the transfer of OP Units Company's assets (except for liens which are (i) acceptable to Contributor Flagship and by Contributor to its Participants;PQC in their sole discretion or (ii) arising under equipment leases listed on Schedule 5.15); ---------------
(d) Evidence a release from any party with a mortgage or lien on any of the DTC Registered REIT Stockassets of the Company, which shall bear substantially the legend set forth in the Articles or a written statement except for liens which, pursuant to subsection (c) of information that the Company will furnish a full statement about certain restrictions on transferability this Section 5.16, are acceptable to a stockholder as set forth in the Articles on request Flagship and without chargePQC;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning consents of Section 1.1445-2(d)(2)(iii), all parties necessary for the sole owner consummation of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)Merger and to consummate the other transactions contemplated by this Agreement;
(f) The release executed by Operating Partnership and a tax lien waiver, if required, from the Company in favor Comptroller of the employees and Affiliates Treasury of the Supervisor in the form attached hereto as Exhibit E;State of Maryland; and
(g) A copy of the most recent as-built survey of the Propertysuch other agreements, if any;
(h) Any other consents and documents that are as PQC and Flagship shall reasonably request 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 connection 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 their due diligence investigation of the ClosingCompany, 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 affiliation of the Existing Loan Indemnity Stockholders with Flagship and PQC, (iii) the transactions contemplated by this Agreement in substantially and 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 applicableEmployment Agreements.
Appears in 1 contract
Closing Deliveries. On At the Closing Date, the parties Closing:
Section 2.2.1 Seller 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)delivered to Purchaser, the OP Agreement and other legal documents and items required to be executed or delivered in connection with the Closing following (collectively the “Seller Closing DocumentsDeliveries”) to which it is a party or for which it is the extent they have not 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:been provided by Seller (without duplication):
(a) The Contribution and Assumption Agreement in executed counterparts to each of the form attached hereto as Exhibit BOther Agreements to which Seller is a party, duly executed by Seller;
(b) The OP Agreement a certificate, dated as of the Closing Date, duly executed by an authorized officer of Seller, certifying that (i) the Organizational Documents of Seller attached to the certificate are true and complete, (ii) such Organizational Documents have been in full force and effect in the Articlesform attached from and after the date of the adoption of the resolutions referred to in clause (iii) below and no amendment to such Organizational Documents has occurred since the date of the last amendment annexed thereto, if any, and (iii) the resolutions adopted by the board of directors of Seller (or a committee thereof duly authorized) authorizing the execution, delivery and performance of this Agreement, attached to the certificate, were duly adopted at a duly convened meeting thereof, at which a quorum was present and acting throughout or by unanimous written consent, remain in full force and effect, and have not been amended, rescinded or modified, except to the extent attached thereto;
(c) The Amendment or UCC-3 termination statements and any other evidence documents necessary to terminate any Lien (other than Permitted Liens) on any of the transfer of OP Units to Contributor and by Contributor to its ParticipantsPurchased Assets;
(d) Evidence a certificate of good standing in respect of Seller, dated as of a date that is not more than ten (10) days prior to the DTC Registered REIT StockClosing Date, which provided that Seller shall bear substantially use commercially reasonable efforts to obtain a certificate of good standing in respect of Seller dated as of a date not more than five (5) days prior 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 as set forth in the Articles on request and without chargeClosing Date;
(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 duly executed certificate that satisfies the requirements of Treasury Regulations section Regulation Section 1.1445-2(b)(2);
(f) The release subject to Section 5.12, assignment and assumption agreements, solely to the extent applicable, in substantially the form attached hereto as Exhibit B (the “Assignment and Assumption Agreements”), as are necessary to effect the assignment to Purchaser of all rights of Seller and its Affiliates in and to the Assigned Contracts, Leases and Assigned Intellectual Property;
(g) a fully executed copy of each Assigned Contract, Lease and Tax Abatement Agreement (including schedules, exhibits and appendices thereto), and control over or physical possession of, as applicable, all other Purchased Assets, together with such conveyance documents that are necessary to vest in Purchaser good and valid title or ownership rights to the Purchased Assets and valid contract or other rights in the Purchased Assets that are contractual rights;
(h) a certificate of a duly authorized officer of Seller certifying as to the matters set forth in Section 6.3.1 and 6.3.2;
(i) a certificate executed by Operating Partnership the president of Seller stating that all Contracts related to the Business between Seller, on the one hand, and any Related Person, on the Company other hand, have been terminated, except as set forth on Schedule 2.2.1(i);
(j) estoppel certificates in favor substantially the form attached hereto as Exhibit C-1 from the landlords under the Real Property Leases identified on Schedule 3.8.5 (other than the Junction City Lease) and estoppel certificates in substantially the form attached hereto as Exhibit C-2 from the tenants under any leases, subleases, licenses, concessions, or other agreements granting to any third party or parties the right of use or occupancy of any portion of the employees Real Property identified on Schedule 3.8.4;
(k) an estoppel certificate from the City of Junction City, Kansas, as landlord, under the Junction City Lease, in form and Affiliates substance reasonably satisfactory to Purchaser;
(l) an opinion of counsel, addressed to Purchaser and dated the Closing Date, from ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to Seller, in the form attached hereto as Exhibit D;
(m) a survey of each parcel of Real Property in a form reasonably satisfactory to Purchaser, certified to Purchaser, which shows no encroachments or other matters adversely impacting the conduct of the Supervisor Business, or rendering title to any Real Property unmarketable. Such survey shall show: (i) all improvements are entirely located on the Real Property; (ii) the Real Property has access to all adjacent roads and such roads are publicly dedicated; and (iii) any other matters reasonably required by Purchaser or required by Purchaser’s lender, and otherwise be sufficient to enable full survey coverage, including zoning;
(n) a fully paid commitment for title insurance pursuant to which the Title Company irrevocably and unconditionally agrees to insure both Purchaser and Purchaser’s lender, with such endorsements (including, without limitation, zoning), reinsurance and direct access arrangements satisfactory to Purchaser, as owner (or mortgagee as the case may be) of good and marketable fee or leasehold (as applicable) title to all Real Property (other than the Pensacola Distribution Facility) subject only to the Permitted Liens, with no exception for nonpayment of the Title Company’s title insurance premiums, in the amounts equal to the appraised value of each parcel of Real Property (other than the Pensacola Distribution Facility);
(o) a special warranty deed, or the local equivalent, for each parcel of Owned Real Property, together with title affidavits and a gap indemnity as required by the Title Company, in each case in form and substance reasonably satisfactory to Purchaser;
(p) an assignment and assumption agreement in form and substance reasonably satisfactory to Purchaser, as is necessary to effect the assignment to Purchaser of the Tax Abatement Agreements;
(q) an assignment, in the form set forth in that certain Trust Indenture, by and between City of Junction City, Kansas, as Issuer, and Bank of Oklahoma, N.A., as Trustee, transferring the Junction City Bonds to Purchaser; and
(r) such other documents and instruments as Purchaser may reasonably request to effect or evidence the transactions contemplated by this Agreement.
Section 2.2.2 Purchaser shall deliver, or cause to be delivered to Seller, the following (the “Purchaser Closing Deliveries”):
(a) the Purchase Price in accordance with Section 1.6; provided, however, that if the Closing Date is not a Business Day, the Purchase Price shall be delivered on the first Business Day following the Closing Date;
(b) executed counterparts to each of the Other Agreements to which Purchaser is a party, duly executed by Purchaser;
(c) an opinion of counsel, addressed to Seller and dated the Closing Date, from the in-house counsel to Parent, 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
(pd) An assignment of Excluded Assets from such other documents and instruments as may be reasonably necessary to effect or evidence 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
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 and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement A duly executed and notarized grant deed (the Articles“Deed”) in the form provided for under the law of the State of California and otherwise in conformity with the custom in the jurisdiction where each Property is located and satisfactory to the Operating Partnership, conveying good, indefeasible and marketable fee simple title to the Property, subject only to the Permitted Exceptions;
(c) The Amendment or other evidence of the transfer of OP Units to Contributor and by Contributor to its ParticipantsAgreement;
(d) Evidence of The Registration Rights Agreement between each Contributor, certain other parties and 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 chargeCompany;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within The Amendment or the meaning Certificates evidencing the transfer of Section 1.1445-2(d)(2)(iii), Partnership Units 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)Contributor;
(f) The release executed by Operating Partnership and the Company Management Agreement, as defined in favor of the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit ESection 4.2(b) below;
(g) A copy The Contributors shall deliver all books and records, title insurance policies, leases, lease files, contracts, stock certificates, original promissory notes, and other indicia of ownership or interest with respect to the most recent as-built survey of the Property, if any;
(h) Any other documents that Properties which are in the each Contributor’s possession of Contributor or which can be obtained through such Contributor’s reasonable efforts which are along with appropriate evidence of Contributors’ assignment thereof;
(h) An affidavit from each Contributor, stating under penalty of perjury, the Contributor’s United States Taxpayer Identification Number and that the Contributor 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;
(i) The Contributors shall deliver a beneficiary’s statement or other evidence satisfactory to the OP in its sole discretion confirming the outstanding principal balance and term of each Existing Loan to be assumed by the Operating Partnership;
(j) The Contributors shall deliver 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 Contributor’s Property Interest of Contributor directly, free and clear of all Liens Interests (other than subject to the Permitted EncumbrancesExceptions) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, quitclaim deeds and/or grant deeds (if transferred directly)deeds, 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 Contribution and Assumption Agreement or Deed or other Property Interest Interests transfer documents is as required;
(ik) [A bargain and sale deed in substantially the form attached Any other documents 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 may be necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as at Closing the Title Policies with a one hundred percent (100%) coverage for each of the Closing, with respect to the Property, either Properties (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 the Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, issued) and levels of reinsurance for the Property Properties as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising all or any part of the Property in the name of Interests to the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “Title Policies”)Exceptions;
(kl) The If requested by the Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other Partnership, 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 each 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;
(lm) Any Tenant EstoppelsContributors shall deliver estoppel certificates from the tenants listed on Schedule 2.3(m) in the form required pursuant to such tenants’ respective leases, any Ground Lease Estoppels and any other tenant or if such estoppel certificates, in each case, to the extent certificates cannot be obtained by the Contributor Contributors after commercially reasonable efforts to obtain such certificates, then the Contributors shall deliver any such estoppel certificates on behalf of any such tenants for purposes of satisfying this condition to Closing (in accordance with Section 2.1(b)(viiisuch event representations and warranties contained in such estoppel certificate(s) delivered by the Contributors shall be deemed to be part of the representations and warranties of the Contributors under Article 3 of Exhibit C for all purposes under this Agreement which shall be dated on or after the date of this Agreement and on or before the Closing Date);
(mn) A notice to each tenant substantially in the form of Exhibit E;
(o) The Contributors, as applicable, shall deliver to the Operating Partnership possession of each Property;
(p) The Operating Partnership and the Company Company, on the one hand hand, and Contributor each Contributor, on the other hand hand, shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties herein and in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier such date, in which case . Each Contributor shall provide a certification that it must has performed the respective covenants required to be true and correct only as of that earlier date and except for such representations and warranties that are qualified performed by materiality or Material Adverse Effect, which representations and warranties shall be certified as being accurate in all respects)them prior to Closing;
(nq) Any books, records and Organizational Documents relating to Contributor that are Pledge Agreement in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;form attached hereto as Exhibit H; and
(ir) All documents reasonably required by a Lender in connection with the assumption or prepayment An opinion of an Existing Loan at or prior to Closing and (ii) the Existing Loan Release or the Existing Loan Indemnity Agreement counsel 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.I.
Appears in 1 contract
Sources: Contribution Agreement (Digital Realty Trust, 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 and Assumption Agreement in the form attached hereto as Exhibit B;
(b) The OP Agreement and the ArticlesAgreement;
(c) The Amendment or other evidence of the Certificates evidencing the transfer of OP Partnership Units to Contributor and by Contributor to its Participantsthe Contributor;
(d) Evidence All books and records, title insurance policies, leases, lease files, contracts, stock certificates, original promissory notes, and other indicia of the DTC Registered REIT Stock, ownership with respect to each Partnership (and any subsidiary Participating Partnership) which shall bear substantially the legend set forth are in the Articles Contributor’s possession or a written statement of information that which can be obtained through 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 chargeContributor’s reasonable efforts;
(e) An affidavit from Contributor (orthe Contributor, if stating under penalty of perjury, the Contributor’s United States Taxpayer Identification Number and that the Contributor is not a disregarded entity within the meaning of foreign person pursuant to Section 1.1445-2(d)(2)(iii), the sole owner of Contributor for such purposes1445(b)(2) of non-foreign status the Code and a comparable affidavit satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)California and any other withholding requirements;
(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 Contributor’s Partnership Interests or, if the Operating Partnership elects, the Properties directly, free and clear of all Liens (other than subject to the Permitted EncumbrancesLiens if the Properties are transferred 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 Contribution and Assumption Agreement or deed or other Property Interest Interests transfer documents is required;
(ig) [A bargain and sale deed in substantially the form attached Any other documents 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 may be necessary to enable a title insurance company (acceptable to the Title Company Operating Partnership in its sole discretion) to commit to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) Closing an ALTA extended coverage owner’s owner or leasehold policy policies 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 extent available) with an aggregate of title insurance for the Property as the Operating Partnership may reasonably request eighty percent (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with 80%) coverage for each of the Property equal to the an amount reasonably acceptable to the Operating Partnership, and Properties (with a tie-in endorsement with respect to all Contributed the Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, issued) and levels of reinsurance for the Property Properties as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising all or any part of the Property in the name of Interests to the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances Liens (collectively, the “Title Policies”);.
(kh) The If requested by the Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other Partnership, 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;
(li) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, Estoppel certificates from the tenants listed on Schedule 2.3(l) substantially in each casethe form of Exhibit E, to the extent obtained by such estoppel certificates are in the Contributor form required pursuant to such tenants’ respective leases, otherwise, in accordance with Section 2.1(b)(viii)the form required under such tenants’ respective lease;
(mj) The Operating Partnership and the Company on the one hand and Contributor on the other hand shall provide to the other Contributor with a certification regarding the accuracy in all material respects of each of their respective representations and warranties herein and in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier such 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);; and
(nk) 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 Pledge 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.F.
Appears in 1 contract
Sources: Contribution Agreement (Digital Realty Trust, 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 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) 3.3.1 The Contribution and Assumption Agreement in the form attached hereto as Exhibit B;
3.3.2 A duly executed and notarized special warranty deed (b) the “Deed”), in the form provided for under the law of the State of Colorado and otherwise in conformity with the custom in the jurisdiction where the Property is located and in form and substance satisfactory to the Operating Partnership, as required by Title Company in order to issue the Title Policy subject only to the Permitted Liens;
3.3.3 The OP Agreement and the ArticlesAgreement;
(c) 3.3.4 The Amendment or other evidence of evidencing the transfer of OP Series T Limited Units to Contributor and by Contributor to its Participantsthe Contributor;
(d) Evidence 3.3.5 The Contributor shall deliver all books and records, title insurance policies, leases, lease files, contracts, stock certificates, original promissory notes, and other indicia of ownership or interest with respect to the DTC Registered REIT Stock, Property 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 Contributor’s possession of Contributor or which can be obtained through the Contributor’s reasonable efforts which are along with appropriate evidence of the Contributor’s assignment thereof;
3.3.6 An affidavit from the Contributor, stating under penalty of perjury, the Contributor’s United States Taxpayer Identification Number and that the Contributor is not a foreign person pursuant to Section 1445(b)(2) of the Code and a comparable affidavit satisfying any applicable federal and state law and Section 4.2.8 and any other withholding requirements;
3.3.7 The Contributor shall deliver a beneficiary’s statement or other evidence satisfactory to the Operating Partnership in its sole discretion confirming the outstanding principal balance and term of the Existing Loan to be assumed by the Operating Partnership;
3.3.8 The Contributor shall deliver 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 Contributor’s Property Interest of Contributor directly, free and clear of all Liens (other than subject to the Permitted EncumbrancesLiens) and effectuate the transactions contemplated hereby, including, without limitation, and only to the extent applicable, grant deeds (if transferred directly)deeds, 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 Contribution and Assumption Agreement or Deed or other Property Interest transfer documents is as 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 3.3.9 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) of this Agreement, any related documents and the documents listed in this Section 2.33.3;
(l) Any Tenant Estoppels, any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, 3.3.10 The Contributor shall deliver to the extent obtained by Operating Partnership possession of the Contributor in accordance with Section 2.1(b)(viii)Property;
(m) 3.3.11 The Operating Partnership and the Company Partnership, on the one hand hand, and Contributor the Contributor, on the other hand hand, shall provide to the other a certification regarding the accuracy in all material respects of each of their respective representations and warranties herein and in this Agreement at the Closing Date (except to the extent that any representation or warranty speaks as of an earlier such 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 3.3.12 The Contributor shall deliver an affidavit as may be required by the Title Company to delete from the Title Policy the mechanics’ lien exceptions and Organizational Documents relating to Contributor that are in the possession of Contributor or which can issue mechanics’ lien title endorsements as may 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.Partnership;
Appears in 1 contract
Sources: Contribution Agreement (Lodging Fund REIT III, Inc.)
Closing Deliveries. (a) On or prior to the Closing DateClosing, the parties Amyris shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through the Power to Nikko a certificate 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 Amyris’ Secretary 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)duly authorized officer, in either event with coverage for the Property equal to the an amount a form reasonably acceptable to the Operating PartnershipNikko, certifying that (A) attached are true 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 correct copies 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 resolutions of all appropriate corporate resolutions or partnership or limited liability company actions Amyris authorizing the execution, delivery and performance by the Operating Partnership of this Agreement and the Company other documents to which it is a party contemplated hereby and thereby and the consummation of the transactions contemplated by this Agreement, (if so requested B) all such resolutions are in full force and effect and have not been repealed or contravened, (C) such resolutions constitute all the resolutions adopted in connection with the transactions contemplated by Contributorthis Agreement and (D) all of its representations and warranties set forth herein are true and correct. Further, on or prior to the Closing, Amyris shall provide (i) written consents to consummate the transaction contemplated hereby, which are issued by all of the financial institution(s) and Contributor other Persons lending money to or providing guarantees for ▇▇▇▇▇▇ (if so requested and whose consent is required for such consummation), (ii) written consent from Akzo Nobel SPG LLC confirming that the Company is entitled to exercise any and all rights under the Akzo Nobel Agreements or other documentation relating to the Akzo Nobel Agreements reasonably satisfactory to Nikko, (iii) a statement pursuant to Treasury Regulation Section 1.1445-2(b), in a form reasonably satisfactory to Nikko, providing that ▇▇▇▇▇▇ is not a “foreign person” for purposes of Section 1445 of the Code, (iv) a list of Amyris’ debt-holders; (v) warranty deed conveying the Real Property to the Company together with any necessary sewer, utility and access easements; (vi) a bill of sale and assignment from Amyris conveying to the Company the Assets; (vii) a statement of termination of the UCC financing statement filed for the First Western Bank & Trust (DBA All Lines Leasing); and (viii) financial statements of Glycotech/Salisbury. In relation to Section 3.2.(a)(i), ▇▇▇▇▇▇ ▇▇▇▇▇▇ confirms that it will deliver a letter of waiver and release issued by Stegodon Corporation concerning the Operating Partnership transactions contemplated by this Agreement and that no other consent is required to consummate such transactions in accordance with the terms of this Agreement.
(b) On or prior to the CompanyClosing, each of Nikko Chemicals and Nissa shall deliver, or cause to be delivered, to Amyris a certificate of Nikko Chemicals’ or ▇▇▇▇▇’s Secretary, as applicable, or other duly authorized officer, in a form reasonably acceptable to ▇▇▇▇▇▇, certifying that (A) attached are true and correct copies of the resolutions of Nikko Chemicals or Nissa, as applicable, authorizing the execution, delivery and performance of this Agreement, any related the other documents and the other documents listed to which it is a party contemplated hereby and thereby and the consummation of the transactions contemplated by this Agreement, (B) all such resolutions are in full force and effect and have not been repealed or contravened, (C) such resolutions constitute all the resolutions adopted in connection with the transactions contemplated by this Section 2.3;
Agreement and (lD) Any Tenant Estoppelsall of its representations and warranties set forth herein are true and correct. Further, any Ground Lease Estoppels and any other tenant estoppel certificatesat the Closing, in each case, to Nikko shall remit the extent obtained by the Contributor Initial Purchase Price 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 applicable2.2.
Appears in 1 contract
Sources: Joint Venture Agreement
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 An assignment of operating lease 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 1 contract
Sources: Contribution Agreement (Empire State Realty OP, L.P.)
Closing Deliveries. On the Closing Date, the parties shall make, execute, acknowledge and deliver, or cause to be made, executed, acknowledged and delivered, through deliver 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 are the following:
(a) The Contribution and Assumption Agreement in the form attached hereto as Exhibit BRestated Partnership Agreements (i.e., executed signature pages from all partners thereto);
(b) The OP Agreement An Assignment and Assumption of the ArticlesInterests in a form reasonably acceptable to 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);
(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 a Seller or which can be obtained through Contributorsuch Seller’s or such Owner’s reasonable efforts which are reasonably requested by the Company or the Operating Partnership or that Purchaser and are reasonably necessary or desirable to assign, transfer, convey, contribute and deliver the Property Interest of Contributor Interests 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”);
(kd) The Operating Partnership and the Company Purchaser on the one hand and Contributor the Owners and the Sellers on the other hand shall provide to the other a certified copy of all appropriate corporate resolutions or partnership or partnership, limited liability company actions or other actions, as applicable, authorizing the execution, delivery and performance by the Operating Partnership and the Company Purchaser (if so requested by Contributora Seller) and Contributor the Owners and any Seller (if so requested by the Operating Partnership or the CompanyPurchaser) 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);
(me) The Operating Partnership and the Company Purchaser on the one hand and Contributor the Sellers 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 effect set forth in (i) Section 2.1(c)(i) and 2.1(c)(ii) in the case of the Purchaser and (ii) Section 2.1(b)(i) and 2.1(b)(ii) in the case of the Sellers;
(f) The Sellers shall each provide the Purchaser with executed certificates of non-foreign status that any representation or warranty speaks as of an earlier date, comply in which case it must be true form 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 respectssubstance with Treasury Regulation Section 1.1445-2(b);
(ng) Any booksThe Property Management Agreement, records the Master Lease, 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 partyAdministrative Agreement; and
(ph) An assignment of Excluded Assets executed tenant estoppel certificate from New River Health & Wellness, LLC (the Company“Estoppel”) on such form provided by Purchaser’s mortgage lender, which shall be dated no earlier than thirty (30) days prior to the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableClosing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (ETRE Residential, LLC)
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 following:Closing,
(a) The Contribution and Assumption Agreement the Buyer will pay to the Sellers the Purchase Price specified in the form attached hereto as Exhibit BSection 1.3;
(b) The OP Agreement the Sellers will deliver certificates (if any) representing the Subject Securities, duly endorsed for transfer or accompanied by stock powers duly executed in blank, and any other documents that are necessary to transfer to the ArticlesBuyer good title to all such Subject Securities;
(c) The Amendment or other evidence each of the transfer employees of OP Units to Contributor and by Contributor to its Participantsthe Companies listed on Schedule 1.5(c) will enter into noncompetition agreements substantially in the form of Exhibit B attached hereto;
(d) Evidence the Companies, KMSC and Midwest Mix will (i) enter into an assignment in form and substance satisfactory to the Sellers and the Buyer to assign to KMSI any claims that the Companies, KMSC and Midwest Mix may have relating to the pending lawsuit by Kohler Mix Specialties, Inc. against Alfa Laval, Inc., provided that the Sellers will indemnify the Companies, KMSC and Midwest Mix from any and all Losses of any nature relating to or arising out of such claims or lawsuit or Sellers’ actions with respect thereto, without regard to the DTC Registered REIT Stock, which shall bear substantially the legend limitations set forth in Article VI; and (ii) agree to provide for a period of 24 months such information and cooperation as the Articles or a written statement of information Sellers may reasonably require in connection therewith, provided that the Company Sellers will furnish a full statement about certain restrictions on transferability to a stockholder as set forth reimburse the Companies, KMSC and Midwest Mix for any out-of-pocket expenses and the cost of personnel time in the Articles on request providing such information and without chargecooperation;
(e) An affidavit from Contributor (orthe Sellers will transfer and deliver to the Buyer the originals or copies of all of the books, if Contributor is a disregarded entity within records, ledgers, disks, proprietary information and other data and all other written or electronic depositories of information of and relating to 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);Companies; and
(f) The release executed by Operating Partnership the Buyer 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 Sellers will execute 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 documents 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 be delivered 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 them pursuant 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.Article V.
Appears in 1 contract
Sources: Securities Purchase Agreement (Michael Foods Inc /Mn)
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:Closing,
(a) The the Vendor shall deliver or caused to be delivered to the Purchaser:
(i) certificates representing the Purchased Shares together with duly endorsed forms of transfer authorizing the transfer of the Purchased Shares to the Purchaser;
(ii) a copy of the resolution of the director of the Corporation authorizing the transactions contemplated hereunder;
(iii) all paperwork it has in its possession relating to the minute book documents of the Corporation and/or to the books and records of the Corporation including but not limited to tax returns, deposit account statements, and any other business records of the Corporation;
(iv) a resignation as director and officer of the Corporation by each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in her capacity as a director and Chief Executive Officer, and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ in his capacity as Chief Financial Officer and Secretary;
(v) a complete release, with effect from the date hereof, of all claims against the Purchaser, the Corporation and its Affiliates which the Vendor now has or in the future may have in respect of any and all matters whatsoever existing to the date hereof, save and except for any obligations owing under this Agreement, the Payment Agreement or the Intercompany Loan Contribution Agreement; and
(vi) such other documents as may be reasonably necessary and Assumption consistent with the terms of this Agreement in order to complete the form attached hereto as Exhibit B;transactions contemplated herein.
(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 Purchaser 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;Vendor:
(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 deliver to the extent necessary to enable Vendor the Title Company to issue to Purchase Price in accordance with the Operating Partnership or its Subsidiary, effective as provisions 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 complete release, with effect from the date hereof, of all claims against the Purchaser and its Affiliates which the Purchaser now has or in the future may have in respect of any Ground Lease Estoppels and any other tenant estoppel certificates, in each case, all matters whatsoever existing 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 datedate hereof, in which case it must be true and correct only as of that earlier date save and except for such representations and warranties that are qualified by materiality any amounts owing under the Payment Agreement 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 obligations owing under this Agreement or the Existing Intercompany 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 partyContribution Agreement; and
(piii) An assignment such other documents as may be reasonably necessary and consistent with the terms of Excluded Assets from this Agreement in order to complete 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 applicableherein.
Appears in 1 contract
Closing Deliveries. On At the Closing DateClosing, the Investor will pay the Committed Purchase Amount in cash by wire transfer of immediately available funds to an account designated upon reasonable advance notice by the Company. At the Closing, 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 hereof)such third party as may be applicable, 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:
(ai) Share Certificates, evidence of delivery of uncertificated shares of Common Stock by book-entry, and/or other evidence of the transfer of Common Stock to the Investor;
(ii) The Contribution Registration Rights Agreement between the Investor, certain other parties and Assumption Agreement the Company substantially in the form attached hereto as Exhibit BA, (the “Registration Rights Agreement”);
(biii) The OP Agreement Investor shall have executed and delivered a letter to the ArticlesCompany setting forth certain representations and undertakings related to the Investor’s ownership of Common Stock in a form reasonably acceptable to the board of directors of the Company and which allows the board of directors of the Company to reasonably conclude that the ownership waiver and Excepted Holder Limit (as defined in the Company’s charter) described in Section 2.4(iv) will not jeopardize the Company’s status as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and make the other determinations required by the Company’s charter in connection with granting such waiver and Excepted Holder Limit;
(civ) The Amendment or other evidence Based on the shareholder representation letter described in Section 2.4(iii), the board of directors of the transfer of OP Units Company shall have granted an exception to Contributor the Common Stock Ownership Limit and by Contributor to its Participants;
(d) Evidence of the DTC Registered REIT Stock, which shall bear substantially the legend Aggregate Stock Ownership Limit set forth in the Articles Company’s charter, providing the Investor with an Excepted Holder Limit of %, or such lower limit as is necessary for the Investor to own the Common Stock without a written statement violation of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as Common Stock Ownership Limit and the Aggregate Stock Ownership Limit set forth in the Articles on request and without charge;Company’s charter; and
(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);
(fv) The release executed Lock-up Agreement signed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor Investor 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 B. If requested by the Company or the Operating Partnership or that are reasonably necessary or desirable to assignCompany, 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 hand, or the Investor, on the other hand hand, each party shall provide to the other requesting party 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) such party 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 applicable2.4.
Appears in 1 contract
Closing Deliveries. On Simultaneously with the Closing DateClosing, the parties Company, the ------------------ Stockholders and the Optionholders 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 PQC the following:
(a) The Contribution and Assumption an Instrument of Joinder to Stockholders Agreement executed by each of the Stockholders in the a form attached hereto as Exhibit Breasonably acceptable to PQC;
(b) The OP certificates of duly authorized officers of the Company, dated the Closing Date, setting forth the resolutions of the Board of Directors and Stockholders of the Company authorizing the execution and delivery by the Company of this Agreement and the Articlesconsummation of the transactions contemplated hereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended;
(c) The Amendment or other evidence a report of a reputable lien search firm indicating that there are no liens of record against any of the transfer of OP Units Company's assets (except for liens which are (i) acceptable to Contributor Flagship and by Contributor to its Participants;PQC in their sole discretion or (ii) arising under equipment leases listed on Schedule 5.15); -------------
(d) Evidence a release from any party with a mortgage or lien on any of the DTC Registered REIT Stockassets of the Company, which shall bear substantially the legend set forth in the Articles or a written statement except for liens which, pursuant to subsection (c) of information that the Company will furnish a full statement about certain restrictions on transferability this Section 5.16, are acceptable to a stockholder as set forth in the Articles on request Flagship and without chargePQC;
(e) An affidavit from Contributor (or, if Contributor is a disregarded entity within the meaning consents of Section 1.1445-2(d)(2)(iii), all parties necessary for the sole owner consummation of Contributor for such purposes) of non-foreign status satisfying the requirements of Treasury Regulations section 1.1445-2(b)(2)Merger and to consummate the other transactions contemplated by this Agreement;
(f) The release executed by Operating Partnership and a tax lien waiver, if required, from the Company in favor Comptroller of the employees and Affiliates Treasury of the Supervisor in the form attached hereto as Exhibit E;State of Maryland; and
(g) A copy of the most recent as-built survey of the Propertysuch other agreements, if any;
(h) Any other consents and documents that are as PQC and Flagship shall reasonably request 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 connection 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 their due diligence investigation of the ClosingCompany, 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 affiliation of the Existing Loan Indemnity Stockholders with Flagship and PQC, (iii) the transactions contemplated by this Agreement in substantially and 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 applicableEmployment Agreements.
Appears in 1 contract
Closing Deliveries. On Administrative Agent shall have received the Closing Datefollowing documents, the parties shall makeinstruments, executeagreements, 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 information, each of which shall be in form and items required substance and executed in such counterparts as shall be acceptable to Administrative Agent and Required Lenders and each of which shall, unless otherwise indicated, be dated the Effective Date:
(i) this Amendment;
(ii) a Note payable to the order of each Lender in the amount of such Lender's Commitment, duly executed or delivered by Borrower;
(iii) a Guaranty Agreement duly executed by each of Borrower's Subsidiaries who have not previously executed a guaranty of the Obligations, excluding DEFC;
(iv) a certificate executed 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 Documents 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 (C) all conditions set forth in this SECTION 4.1(a) and in SECTION 6.02 of the Closing shall be the following:
(a) The Contribution and Assumption Credit Agreement in the form attached hereto as Exhibit Bhave been satisfied;
(bv) The OP Agreement such resolutions, certificates and other documents relating to the Articles;
(c) The Amendment or other evidence existence 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)Loan Parties, 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 Propertycorporate, 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 assignpartnership, 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 authority for 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 the Notes, the other Loan Documents, and certain other matters relevant hereto, in form and substance satisfactory to Administrative Agent, which resolutions, certificates and documents include resolutions of the directors of each Loan Party authorizing the execution, delivery, and performance of the documents listed in this Section 2.3Loan Documents and certificates of incumbency for each Loan Party;
(lvi) Any Tenant Estoppelsall documents required by Administrative Agent to evidence that the Merger has occurred on or before August 25, 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)1998;
(mvii) The Operating Partnership satisfactory evidence of the consummation of the Merger and a certificate from an Authorized Officer certifying that 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 partyMerger has been consummated; and
(pviii) An assignment copies of Excluded Assets from all financial statements, reports, notices, and proxy statements sent by Borrower to its shareholders and all information filed with the Company, Securities and Exchange Commission with respect to the Operating Partnership or a Subsidiary, as applicable, in favor of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableMerger.
Appears in 1 contract
Closing Deliveries. On At the Closing,
(a) the Sellers and SLA shall deliver or cause to be delivered to the Purchaser:
(i) a certificate or certificates (or affidavits of lost certificates) evidencing all of the SLA Shares, duly endorsed for transfer with all necessary transfer stamps affixed;
(ii) the Officer's Certificates required by Sections 7.1 and 7.4;
(iii) copies of all consents and approvals required by Sections 7.3, and 7.10;
(iv) the Opinion of Counsel required by Section 7.6;
(v) the Employment Agreements required by Section 7.5;
(vi) the counterpart signature pages to the Shareholders' Agreement required by Section 7.7;
(vii) the Subordination Agreement required by Section 7.8;
(viii) a certificate, signed by the secretary of SLA, as to the articles of incorporation and by-laws of SLA, the resolutions adopted by the board of directors and shareholders of SLA in connection with this Agreement, the incumbency of certain officers of SLA and the jurisdictions in which SLA is qualified to conduct business, in form reasonably acceptable to the Purchaser;
(ix) 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 SLA 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 Florida and as a foreign corporation authorized to do business under the laws of the various jurisdictions where it is so qualified.
(x) 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 SLA 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 the ArticlesContingent Notes) required to be paid or delivered to the Sellers at Closing in accordance with Section 1.1 (to be distributed to the Sellers in accordance with Schedule 1.1).
(ii) copies of all consents and approvals required by Section 8.4;
(iii) the Officer's Certificate required by Section 8.1;
(iv) the Employment Agreements required by Section 8.6;
(v) the Opinion of Counsel required by Section 8.7;
(vi) a certificate, signed by the secretary of Purchaser, as to the articles of incorporation and by-laws of Purchaser, the resolutions adopted by the board of directors and shareholders of Purchaser in connection with this Agreement, the incumbency of certain officers of Purchaser and the jurisdictions in which Purchaser is qualified to conduct business, in form acceptable to SLA.
(vii) 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 Purchaser and AmeriPath Florida as of a date not more than ten (10) days prior to the Closing Date, as a corporation organized under the laws of the State of Delaware and Florida, respectively, and as a foreign corporation authorized to do business under the laws of the various jurisdictions where it is so qualified; and
(viii) such other certified resolutions, documents and certificates as are required to be delivered by the Purchaser pursuant to the provisions of this Agreement.
(c) The Amendment or other evidence of Partnership shall deliver to the transfer of OP Units to Contributor and by Contributor to its Participants;Purchaser:
(i) the Assets
(ii) the Bill ▇▇ Sale; and
(iii) the Lease
(d) Evidence of the DTC Registered REIT Stock, which The Purchaser 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;Partnership:
(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 cash consideration 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”);Assets; and
(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.Lease
Appears in 1 contract
Closing Deliveries. On At the Closing Date, the parties Closing,
(a) CALP shall make, execute, acknowledge and deliver, or cause its Affiliates or Representatives to deliver, to SSIC, in each case, whether maintained in electronic or physical form, as applicable:
(i) a counterpart of each assignment and assumption agreement (or similar assignment documentation as may be maderequired under the applicable Contributed Loan Documents) relating to a Contributed Investment Asset, executedduly executed on behalf of CALP (or its applicable Affiliate);
(ii) the Contributed Loan Notes with respect to such Contributed Loans, acknowledged and deliveredduly endorsed in the name of SSIC or accompanied by note powers duly endorsed in blank;
(iii) the Contributed Loan Documents in the possession or control of CALP or its Affiliates;
(iv) the Contributed Loan Files in the possession or control of CALP or its Affiliates;
(v) a certificate signed by an officer, through the Power member or manager of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Agreement and other legal documents and items CALP as required to be executed or delivered in connection with the Closing (collectively the “Closing Documents”under Sections 8.3(a), 8.3(b) 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 B8.3(c);
(bvi) The OP Agreement and the Articles;
(c) The Amendment an IRS Form W-9 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) certification of non-foreign status satisfying that complies with the requirements of Code Section 1445 and Treasury Regulations section Regulation Section 1.1445-2(b)(22(b), in form and substance reasonably satisfactory to SSIC;
(fvii) The release a counterpart to the 12(d)(1)(E) Agreement, duly executed by Operating Partnership and the Company in favor CALP; and
(viii) evidence of the employees and Affiliates termination of any Contracts existing as of the Supervisor date of this Agreement that subordinate, purport to subordinate or have the substantive effect of subordinating CALP’s rights to payments in respect of any Contributed Investment Asset to any Indebtedness or other claims or any Lien supporting any other Indebtedness or other claims owed to any Affiliate of CALP, including all subordinations as set forth in Section 5.8(j) of the CALP Disclosure Schedule, in form and substance reasonably satisfactory to SSIC. For the avoidance of doubt, (A) with respect to any accrued interest payments and/or other payments that are Excluded Assets under Section 2.1(b)(i), such amounts shall not be taken into account in the form attached hereto calculation of the Contributed Investment Assets Fair Value, and CALP shall be entitled to any such payments, and (B) with respect to any accrued interest payments and/or other payments that are Contributed Investment Assets under Section 2.1(a)(ii), whether relating to periods that begin or end on, prior to, or after, the Closing Cut-off Time, such amounts shall be taken into account in the calculation of the Contributed Investment Assets Fair Value, and SSIC shall be entitled to any such payments. After the Closing, (i) if SSIC receives any payments that under the terms of this Agreement are for the account of CALP, SSIC shall promptly wire or otherwise transfer such amounts to an account designated in writing by CALP and (ii) if CALP receives any payments that under the terms of this Agreement are for the account of SSIC, CALP shall promptly wire or otherwise transfer such amounts to an account designated in writing by SSIC.
(b) SSIC shall deliver, or cause its Affiliates or Representatives to deliver, to CALP, in each case, whether maintained in electronic or physical form, as Exhibit Eapplicable:
(i) a counterpart of each assignment and assumption agreement (or similar assignment documentation as may be required under the applicable Contributed Loan Documents) relating to a Contributed Investment Asset, duly executed on behalf of SSIC;
(gii) A copy the Purchased Shares, delivered in book entry form on the records of SSIC’s transfer agent, free and clear of all Liens, other than Liens under the Organizational Documents of SSIC that are set forth in Section 3.4(b)(ii) of the most recent as-built survey of the PropertySSIC Disclosure Schedule, if any, and restrictions on transfer under federal and state securities Laws, if any;
(hiii) Any other documents that are in the possession of Contributor or which can be obtained through Contributor’s reasonable efforts which are reasonably requested a certificate signed by the Company Chief Executive Officer or the Operating Partnership or that are reasonably necessary or desirable Chief Financial Officer of SSIC as required to assignbe delivered under Sections 8.2(a), transfer, convey, contribute and deliver the Property Interest of Contributor directly, free and clear of all Liens (other than the Permitted Encumbrances8.2(b) 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”8.2(c);
(kiv) The Operating Partnership a certificate signed by the manager of Silver Spike as required to be delivered under Sections 8.2(c) and the Company on the one hand and Contributor on the other hand shall provide 8.2(d); and
(v) a counterpart 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 Contributor12(d)(1)(E) 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 applicableSSIC.
Appears in 1 contract
Closing Deliveries. On At the Closing,
(a) the Sellers shall deliver or cause to be delivered to the Purchaser:
(i) the Officers' Certificates required by Sections 7.1 and 7.5;
(ii) copies of all consents and approvals required by Sections 7.3 and 7.4;
(iii) the Opinion of Counsel required by Section 8.8;
(iv) the Employment Agreements required by Section 7.8;
(v) a certificate, signed by the secretary of each Seller, as to the articles of incorporation and by-laws (or other organizational documents) of each Seller, the resolutions adopted by the board of directors and shareholders, or the consents of partners, as the case may be, of each Seller in connection with this Agreement, the incumbency of certain officers of each Seller and the jurisdictions in which each Seller is qualified to conduct business, in form acceptable to the Purchaser;
(vi) 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 each Seller as of a date not more than 10 days prior to the Closing Date, as a corporation, partnership or limited liability corporation, as the parties shall makecase may be, executeorganized under the laws of the State of Texas and as a foreign corporation authorized to do business under the laws of the various jurisdictions where such Person is so qualified.
(vii) the counterpart signature pages to the Shareholders' Agreement required by Section 7.9;
(viii) the UCC termination statements, acknowledge and deliver, releases of mortgages or cause to be made, executed, acknowledged and delivered, through other releases of Liens required by Section 7.10;
(ix) the Power of Attorney or the Attorney-in-Fact (described in Article 5 hereof), the OP Subordination Agreement and counterpart signature page thereto required by Section 7.11;
(x) the Stock Certificates required by Section 7.12;
(xi) such other legal certified resolutions, documents and items certificates as are required to be executed or delivered in connection with by any Seller 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 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 Purchaser 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;Sellers:
(i) [A bargain and sale deed the consideration (in substantially the form attached as Exhibit Fof cash, AmeriPath Stock and Contingent Notes) required to be paid 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 delivered to the extent necessary Sellers (and allocated 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 (ieach Seller) 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)(viii1.1);.
(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 Officers' Certificate required by Section 8.1;
(iii) the Existing Loan Indemnity Agreement in substantially Employment Agreements required by Section 8.4;
(iv) 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 Opinion of Counsel required by the applicable partySection 8.8; and
(pv) An assignment such other certified resolutions, documents and certificates as are required to be delivered by the Purchaser pursuant to the provisions 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 At the Closing,
(a) each of the Partners and Seller shall deliver or cause to be delivered to the Purchaser:
(i) the Bill ▇▇ Sale;
(ii) the Assets;
(iii) copies of all consents and approvals required by SECTIONS 7.3, 7.4 and 7.10 (including UCC termination statements, releases of mortgages or other releases of Liens);
(iv) the Opinion of Counsel required by SECTION 7.6;
(v) the Certificates required by SECTIONS 7.1 and 7.5;
(vi) the Subordination Agreement required by SECTION 7.9;
(vii) the Employment Agreements required by SECTION 7.7 (EXHIBIT 6.6);
(viii) a certificate, signed by a Partner of the Seller, as to the Partnership Agreement, the actions taken by the Partners of Seller in connection with this Agreement, the authority of certain persons to act on behalf of the Seller and the jurisdictions in which Seller is qualified to conduct business, in form acceptable to the Purchaser;
(ix) certificates issued by the appropriate governmental authorities evidencing that Seller is validly existing and organized as of a date not more than 10 days prior to the Closing Date, as a partnership organized under the parties shall makelaws of the State of Indiana and as a foreign partnership authorized to do business under the laws of the various jurisdictions where it is so qualified, executeif applicable.
(x) the Assignment and Assumption Agreements required by SECTION 7.14;
(xi) the Tax Clearance Certificates required by SECTION 7.11;
(xii) the Lease required by SECTION 7.12;
(xiii) the Assignment and Assumption Agreement required by SECTION 8.13;
(xiv) the termination agreements required by SECTION 8.14; and
(xv) such other certified resolutions, 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 each of the Partners or delivered in connection with Seller 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 and the Articles;
(c) The Amendment or other evidence Purchaser shall deliver to each 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;Partners:
(i) [A bargain and sale deed the consideration (in substantially the form attached as Exhibit Fof cash, 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 AmeriPath Stock and the Company on the one hand and Contributor on the other hand shall provide Contingent Note) required to the other a certified copy of all appropriate corporate resolutions be paid 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 delivered at Closing in accordance with Section 2.1(b)(viii);SECTION 1.5
(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 Certificate required by SECTIONS 8.1 AND 8.12;
(iii) the Existing Loan Indemnity Agreement in substantially the form attached hereto Employment Agreements required by SECTION 8.4;
(iv) such other certified resolutions, documents and certificates as Exhibit C (unless such Existing Loans are repaid at or prior required to Closing), as applicable, in each case, duly executed be delivered by the applicable partyPurchaser pursuant to the provisions of this Agreement;
(v) the opinion of counsel to be delivered pursuant to Section 8.5;
(vi) the Assignment and Assumption Agreements required by SECTION 8.6;
(vii) copies of the amendment required by SECTION 8.7;
(viii) the Lease required by Section 8.9;
(ix) the Assignment and Assumption Agreement required by SECTION 8.13;
(x) a copy of the Management Agreement to be entered into pursuant to SECTION 7.15; and
(pxi) An assignment copies of Excluded Assets from the Company, the Operating Partnership or a Subsidiary, as applicable, in favor organizational documents of Contributor, to achieve the distributions contemplated under Section 1.4, if applicableAmeriPath APA.
Appears in 1 contract
Closing Deliveries. On At the Closing Date, Closing:
(a) the parties shall make, execute, acknowledge and Seller will deliver, or cause to be made, executed, acknowledged and delivered, through to the Power Buyer, or to the Buyer's Representative(s) in locations other than the Cayman Islands:
(i) evidence satisfactory to the Buyer, acting reasonably, to effect the transfer of Attorney the Shares into the name of the Buyer, together with a duly prepared entry in the share registry of DMC evidencing the Buyer as the holder of the Shares, and accompanied by any certificates representing the Shares,
(ii) resignations of such of the directors and officers of each of the Acquired Companies as may be requested by the Buyer or the Attorney-in-Fact Seller, such resignations to include confirmation that the relevant director or officer has no outstanding claims against the relevant Acquired Company, whether for loss of office or otherwise,
(described iii) evidence reasonably satisfactory to the Buyer of the termination of any Powers, other than the Powers identified to the Seller by the Buyer in Article 5 hereof), writing prior to Closing;
(iv) certified copies of resolutions of the OP Agreement and other legal documents and items required to be executed or delivered in connection with directors of 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 Seller approving this Agreement and the other transactions contemplated Contemplated Transactions and authorizing the performance by the Seller of its obligations hereunder,
(v) a certificate executed by the Seller as to take place the accuracy of the Seller's representations and warranties as of the Closing in connection therewith. The Closing Documents accordance with Section 9.1 and other items as to the Seller's compliance with and performance of its covenants and obligations to be delivered at performed or complied on or before the Closing shall be the following:Date in accordance with Section 9.2,
(avi) The Contribution a duly and Assumption Agreement validly executed assignment of the Pacrim Loan to the Buyer, acknowledged by DMC,
(vii) the additional documentation specified in Section 9.3,
(viii) the form attached hereto Governing Documents, minute books, share register(s), corporate seal (if any) ands other books and records pertaining to each of the Acquired Companies,
(ix) such documents as Exhibit Bmay be required pursuant to Chilean Law in order to transfer the rights currently held by Mr. Michael Grasty Cousino in DCEM to the nominee of ▇▇▇ Buyer as required to ensure that DCEM will, following Closing, have a minimum of two (2) partners;
(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 Stocka waiver from Grasty Quintana Majlis & Cia., 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 ClosingChilean co▇▇▇▇▇ ▇▇ ▇▇▇ Seller, with respect to the Property60 day cancellation restriction in such firm's engagement agreement, either and
(xi) any other documentation reasonably required to give effect to the Contemplated Transactions and required to be executed by the Seller or persons on behalf of the Seller; and
(b) the Buyer will deliver, or cause to be delivered, to the Seller, or to the Seller's representative(s) in locations other than the Cayman Islands:
(i) an ALTA extended coverage owner’s the wire transfer confirmation, solicitors' trust cheque, bank draft or leasehold policy of title insurance (certified cheque as provided in current formSection 2.3(c), 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 duly executed releases by each of the Operating Partnership (or a Subsidiary thereof, as Acquired Companies of each of the Operating Partnership may designatedirectors and officers whose resignations are delivered pursuant to Section 2.6(a)(ii), subject only to the Permitted Encumbrances (collectively, the “Title Policies”);,
(kiii) The Operating Partnership certified copies of resolutions of directors of the Buyer approving this Agreement and the Company on the one hand Contemplated Transactions 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 Buyer of its obligations hereunder,
(iv) the Promissory Note,
(v) the Security Agreement,
(vi) confirmations of all Governmental Authorities or other offices or registries as to the registration of the Security Agreement as necessary to make the security interests granted thereby valid and the Company enforceable under applicable Laws,
(if so requested by Contributorvii) and Contributor (if so requested a certificate executed 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, Buyer as to the extent obtained by accuracy of the Contributor Buyer's representations and warranties as of the Closing in accordance with Section 2.1(b)(viii);
(m) The Operating Partnership 10.1 and the Company as to its compliance with and performance of its covenants and obligations to be performed or complied with 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 or before the Closing Date in accordance with Section 10.2,
(except viii) any other documentation reasonably required to give effect to the extent that any representation or warranty speaks as of an earlier date, in which case it must Contemplated Transactions and required to 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 Buyer or persons on behalf 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 applicableBuyer.
Appears in 1 contract
Closing Deliveries. On At the Closing Date, Closing:
(a) the parties Target 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 Acquiror the following:
(ai) The Contribution a certificate of the Secretary of Target, in form and Assumption substance satisfactory to Acquiror and its counsel, regarding Target’s Charter Documents, good standing, all board resolutions and stockholder consents relating to the Transactions contemplated by this Agreement in and the form attached hereto as Exhibit Bincumbency of Target’s officers;
(bii) The OP Agreement applicable certifications from its Chief Executive Officer and Chief Financial Officer contemplated by Section 7.1(a) regarding the Articlesfulfillment of the conditions set forth therein and from each of the Target Principal Holders executing the Joinder, applicable certifications contemplated by Section 7.1(f) regarding the fulfillment of the conditions set forth therein;
(ciii) The Amendment or other evidence letters of resignation in the name of and executed by each (A) member of the transfer Target Board resigning his/her position as a director 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, Entity 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 PartnershipClosing Date, 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 (B) officer of Target resigning his/her position as an owner’s or leasehold policy officer of title insurance, and levels of reinsurance for the Property Target effective 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 certificatesClosing Date, in each case, except as otherwise agreed to the extent obtained by the Contributor Parties;
(iv) duly executed counterparts to each of the Transaction Documents to which Target is a party;
(v) all corporate, minute and stock records of Target;
(vi) evidence that all of the Transaction Expenses, whether or not reflected in the Statement of Expenses, have been paid in full;
(vii) audited consolidated balance sheets of the Target as of September 30, 2008 and 2009 and the related statements of operations and cash flows and stockholders’ equity for the fiscal years then ended, which (A) shall not be materially different than those Target Financial Statements previously disclosed to Acquiror pursuant to clause (ii) of Section 4.7(b), (B) shall have been prepared in accordance with GAAP applied on a consistent basis during the periods involved and (C) shall comply in all respects with the requirements of Regulation S-X promulgated by the SEC such that they may be filed by Acquiror with the SEC in accordance with applicable requirements of the Exchange Act, Regulation S-K promulgated by the SEC and the instructions to Current Report on Form 8-K;
(viii) unaudited consolidated balance sheets of the Target as of June 30, 2009 and 2010 and the related statements of operations and cash flows and stockholders’ equity for the nine month periods then ended, which (A) shall have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except for normal and recurring year-end adjustments) and (B) shall satisfy the requirements of clauses (B) and (C) of Section 2.1(b)(viii8.2(a)(vii);
(mix) 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 certificate described 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);Section 10.7; and
(nx) Any booksthe Amended and Restated Investor Rights Agreement, records and Organizational Documents relating to Contributor that are executed by all the Target Principal Holders receiving Acquiror Series C Preferred Stock in connection with the possession of Contributor or which can be obtained through Contributor’s reasonable efforts;Merger.
(b) Acquiror shall deliver the following:
(i) All documents reasonably required by a Lender to each Holder who executes and delivers the applicable Securityholder Documents in connection with the assumption or prepayment manner set forth in Section 2.7, that portion of an Existing Loan at or prior the Merger Consideration issuable to Closing and such Holder pursuant to Section 2.6;
(ii) to the Existing Loan Release or Escrow Agent, the Existing Loan Indemnity Agreement in substantially Escrow Merger Consideration;
(iii) to the form attached hereto as Exhibit C Stockholders’ Representative, a certificate (unless such Existing Loans are repaid at or prior to Closing), as applicableA) of the Secretary of each Acquiring Party, in form and substance satisfactory to the Stockholders’ Representative and its counsel, regarding such Acquiring Party’s Charter Documents, good standing, all board resolutions relating to the Transactions contemplated by this Agreement and the incumbency of such Acquiring Party’s officers and (B) an officer of each caseAcquiring Party certifying that the statements set forth in Section 7.2(a) are true, correct and accurate and have been fulfilled;
(iv) duly executed by counterparts to each of the applicable Transaction Documents to which each Acquiring Party is a party; and
(pv) An assignment the Amended and Restated Investor Rights Agreement, executed by Acquiror and the requisite parties thereto other than the Target Principal Holders.
(c) Merger Sub shall file with the Secretary of Excluded Assets from State of the Company, the Operating Partnership or a SubsidiaryState of Washington duly executed and verified Articles of Merger, as applicablerequired by the WBCA, 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 (Edgar Online Inc)
Closing Deliveries. On the Closing Date(a) At Closing, the parties Parent shall make, execute, acknowledge and pay or deliver, or cause to be made, executed, acknowledged and paid or delivered, through as the Power of Attorney or case may be, to 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 followingTransferor Parties:
(ai) The Contribution an amount equal to the Cash Payment;
(ii) an original stock certificate evidencing the Stock Consideration;
(iii) Transaction Documents duly executed by the Acquiring Parties, as applicable; and
(iv) A certificate, in form and Assumption Agreement substance reasonably satisfactory to Transferor Parties, signed by an authorized officer of each of the Acquiring Parties certifying the matters described in the form attached hereto as Exhibit B;Section 7.1.
(b) The OP Agreement and At 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 Transferor 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;Acquiror:
(i) [A bargain The Transferred Assets, including without limitation, copies of all books, records, files, and sale deed in substantially documents of Transferor relating to any of the form attached as Exhibit F, Transferred Assets 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 otherwise related or necessary to the extent necessary commercial exploitation of the Transferred Assets or the Business, and without limiting the foregoing, electronic media including complete and accurate copies of all Intellectual Property Embodiments and Documentation, with all electronic media to enable be delivered fully functioning; provided that if Acquiror waives the Title Company closing condition that a Required Consent be obtained for any Transferred Contract, such Transferred Contract shall not be assigned to issue to the Operating Partnership or its Subsidiary, effective as of Acquiror at 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 but shall instead be assigned at such endorsements thereto time as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or Required Consent is obtained;
(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 Transaction 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 partyTransferor Parties, as applicable;
(iii) A certificate, in form and substance reasonably satisfactory to Acquiror, signed by Transferor certifying the matters described in Section 6.1; and
(piv) An assignment of Excluded Assets from All Required Consents set forth on Schedule 3.10 and all Governmental Authorizations required to consummate 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: Asset Contribution Agreement (SFX Entertainment, INC)
Closing Deliveries. On (a) In addition to any other documents to be delivered under other provisions of this Agreement, at the Closing, the Sellers will deliver or cause to be delivered to the Buyer:
(i) (A) stock certificates representing all of the Shares with duly executed stock powers attached in proper form for transfer to the Buyer and (B) such other instruments of transfer and conveyance as may be reasonably required to transfer the Shares;
(ii) an Escrow Agreement, by and among the Buyer, the Sellers’ Representative and ▇▇▇▇▇ Fargo Bank, National Association (the “Escrow Agent”), in the form of Exhibit 2.4(a)(ii) (the “Escrow Agreement”), executed by the Sellers’ Representative and the Escrow Agent;
(iii) letters of resignation, effective as of the Closing Date, executed by each of the parties Board Members;
(iv) all of the Consents listed on Schedule 2.4(a)(iv);
(v) the original Company Books and Records and stock record books and ledgers of each of the Companies;
(vi) a good standing certificate (or equivalent document) dated within five Business Days of the Closing for each of the Companies issued by the secretary of state of such Company’s jurisdiction of incorporation and in each state in which such Company is qualified to do business as a foreign corporation (provided that for MPC Europe, such certificate shall make, execute, acknowledge be dated within fourteen (14) Business Days of the Closing);
(vii) a non-foreign person affidavit that complies with the requirements of Section 1445 of the Code and deliver, or cause to be made, executed, acknowledged and delivered, through the Power of Attorney or the AttorneyTreasury Regulation Section 1.1445-in-Fact (described in Article 5 hereof2(b), executed by each of the OP Agreement Techni-Core Shareholders and other legal documents reasonably satisfactory to the Buyer and items a statement provided by MPC to Buyer in accordance with Treasury Regulation Section 1.1445-2(c)(3) certifying under penalties of perjury that the MPC Shares are not United States real property interests, and the notice required to be under Treasury Regulation Section 1.897-2(h)(2), prepared and executed under penalties of perjury by MPC;
(viii) certificates of MPC, Techni-Core and the Non-Natural Person Sellers certifying, as complete and accurate as of the Closing, attached copies of the Organizational Documents of each such entity, certifying and attaching all requisite resolutions or delivered in connection actions of the boards of directors, managers, trustees or others with similar authority of each such entity approving 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 and delivery of this Agreement and the other transactions contemplated to take place in connection therewith. The Closing Documents consummation of the Contemplated Transactions and other items to be delivered at certifying the Closing shall be incumbency and signatures of the following:officers or representatives of each such entity executing this Agreement and the Ancillary Agreements;
(aix) The Contribution the Real Property Leases, incorporating the terms set forth on Exhibit 2.4(a)(ix) pertaining to the lease of the Affiliate-Owned Real Property, duly executed by each Affiliate Landlord and Assumption Agreement MPC (the “Affiliate Leases”);
(x) releases in the form attached hereto as Exhibit B2.5(a)(x) executed by each of the Sellers;
(xi) opinions of counsel of Sellers or the applicable Non-Natural Person Sellers regarding the authority of certain trustees to bind respective Non-Natural Person Sellers to perform the obligations of such Non-Natural Person Sellers with respect to the Contemplated Transactions and the law applicable to such Non-Natural Person Sellers, as requested by and in a form reasonably satisfactory to Buyer;
(xii) personal guarantees of certain settlors of Non-Natural Person Sellers with respect to the obligations of their revocable trusts, as requested by and in a form reasonably satisfactory to Buyer;
(xiii) certificates of certain trustees with respect to certain Non-Natural Person Sellers setting forth the authority of the applicable trustee, as requested by and in a form reasonably satisfactory to Buyer; and
(xiv) such other documents and instruments as the Buyer shall reasonably request to consummate the Contemplated Transactions.
(b) The OP In addition to any other documents to be delivered under other provisions of this Agreement, at the Closing, the Buyer will deliver or cause to be delivered to:
(i) to the Sellers’ Representative by wire transfer of immediately available funds, to an account specified by the Sellers’ Representative no later than two Business Days before the Closing, the Closing Payment adjusted upward or downward in accordance with Section 2.5(a), minus the Escrow Amount;
(ii) to the Escrow Agent by wire transfer of immediately available funds, the Escrow Amount;
(iii) to the Sellers’ Representative and the Escrow Agent, the Escrow Agreement, executed by the Buyer.
(iv) to the Sellers’ Representative, a certificate of the Buyer certifying, as complete and accurate as of the Closing, the Buyer’s Organizational Documents, attaching all requisite resolutions or actions of the Buyer’s board of directors approving the execution and delivery of this Agreement and the Articlesconsummation of the Contemplated Transactions and certifying the incumbency and signatures of the officers executing this Agreement and the Ancillary Agreements;
(v) to the Sellers’ Representative, a letter setting forth the obligation to make the Employee Transaction Payments; and
(vi) to the Sellers’ Representative, such other documents and instruments as the Sellers’ Representative shall reasonably request to consummate the Contemplated Transactions.
(c) The Amendment or other evidence Buyer’s delivery 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 amounts set forth in the Articles or a written statement of information that the Company Section 2.4(b) will furnish a constitute payment in 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 applicableShares.
Appears in 1 contract
Closing Deliveries. On (a) At the Closing DateClosing, the Essex Parties, as applicable, shall deliver to the JV Holding Company or Nexans, as applicable,
(i) a certificate executed by a duly authorized officer of Essex as to compliance with the conditions set forth in Sections 5.3.1 and 5.3.2 hereof;
(ii) the Ancillary Documents to which it is contemplated that an Essex Party will be a party;
(iii) a written instrument signed by Essex Netherlands, Participations and the JV Holding Company to the effect that the JV Holding Company has received and acknowledges having notice of the provisions of the Shareholders Agreement, that transfers of shares of the JV Holding Company made in accordance with the Shareholders Agreement have received the consent of Essex Netherlands and Participations (which consent may not be revoked without the approval of both of them), and that capital increases effected in accordance with the Shareholders Agreement have received the consent of Essex Netherlands and Participations (which consent may not be revoked without the approval of both of them);
(iv) stock transfer forms and other conveyance documents necessary to transfer the Essex UK Shares to the JV Holding Company; and
(v) all other documents required to be entered into by an Essex Party pursuant hereto or reasonably requested by Nexans to consummate the transactions contemplated hereby.
(b) At the Closing, the Nexans Parties, as applicable, shall deliver to the JV Holding Company or Essex, as applicable,
(i) a certificate executed by a duly authorized officer of Nexans as to compliance with the conditions set forth in Sections 5.2.1 and 5.2.2 hereof;
(ii) such deeds, instruments of assignment, certificates of title and other conveyance documents as are reasonably requested by Essex in order to effectuate the conveyance, transfer and assignment to (A) German Newco of the real property described on Exhibit 2.2.7; and (B) the JV Holding Company of the Nexans Registered Intellectual Property included in the Nexans Owned Intellectual Property required to be transferred pursuant to Section 2.2.7.
(iii) the Ancillary Documents to which it is contemplated that a Nexans Party will be a party;
(iv) a written instrument signed by Essex Netherlands, Participations and the JV Holding Company to the effect that the JV Holding Company has received and acknowledges having notice of the provisions of the Shareholders Agreement, that transfers of shares of the JV Holding Company made in accordance with the Shareholders Agreement have received the consent of Essex Netherlands and Participations (which consent may not be revoked without the approval of both of them), and that capital increases effected in accordance with the Shareholders Agreement have received the consent of Essex Netherlands and Participations (which consent may not be revoked without the approval of both of them); and
(v) all other documents required to be entered into by a Nexans Party pursuant hereto or reasonably requested by Essex to consummate the transactions contemplated hereby.
(c) At the Closing, the parties shall make, execute, acknowledge cause the JV Holding Company and deliver, its Subsidiaries to deliver to the applicable Essex Entities 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 Nexans Entities the following:
(ai) The Contribution and Assumption Agreement in the form attached hereto as Exhibit BSubordinated Note;
(bii) The OP Agreement and the ArticlesCash Consideration;
(ciii) The Amendment or other evidence of the transfer of OP Units Ancillary Documents to Contributor and by Contributor to its Participantswhich it is contemplated that it will be a party;
(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 chargeCredit Facility;
(ev) An affidavit from Contributor a written instrument signed by Essex Netherlands, Participations and the JV Holding Company to the effect that the JV Holding Company has received and acknowledges having notice of the provisions of the Shareholders Agreement, that transfers of shares of the JV Holding Company made in accordance with the Shareholders Agreement have received the consent of Essex Netherlands and Participations (or, if Contributor is a disregarded entity within which consent may not be revoked without the meaning approval of Section 1.1445-2(d)(2)(iiiboth of them), and that capital increases effected in accordance with the sole owner Shareholders Agreement have received the consent of Contributor for such purposes) Essex Netherlands and Participations (which consent may not be revoked without the approval of non-foreign status satisfying the requirements both of Treasury Regulations section 1.1445-2(b)(2them);
(fvi) The release executed by Operating Partnership stock transfer forms and other conveyance documents necessary to transfer the Hi-Wire Shares, the Flytex Shares, the Nexans Portugal Shares and the Company in favor of German Newco Shares to the employees and Affiliates of the Supervisor in the form attached hereto as Exhibit E;JV Holding Company; and
(gvii) A copy of the most recent as-built survey of the Property, if any;
(h) Any all other documents that are in required to be entered into by the possession of Contributor JV Holding Company pursuant hereto or which can be obtained through Contributor’s reasonable efforts which are reasonably requested by the Company Essex or the Operating Partnership or that are reasonably necessary or desirable Nexans 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 consummate 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 1 contract
Sources: Contribution and Formation Agreement (Superior Essex Inc)