Closing Matters. (a) At Closing, Seller shall: (i) cause the Title Company to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment of the Title Company to issue to Purchaser the Title Policy; (ii) To the extent available and in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the Property; (iii) Deliver possession of the Property, subject to the Permitted Exceptions and the rights of parties in possession; (iv) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property; (v) Execute, acknowledge and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Property; (vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contracts; (vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale; (viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person"; (ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy; (x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters"); and (xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement. (b) At Closing, Purchaser shall: (i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1; (ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing; (iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request; (iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property; (v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and (c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing. (d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing. (i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing. (ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company. (iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price. (e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing. (f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 2 contracts
Sources: Agreement of Sale and Purchase (Walden Residential Properties Inc), Agreement of Sale and Purchase (Walden Residential Properties Inc)
Closing Matters. Subject to the terms and conditions of this Agreement:
3.2.1 at the Closing, the Purchaser shall
(a) At pay to the Vendors the Cash Consideration in full by wire transfer of immediately available funds to the Vendors’ accounts and in the Vendors’ Proportion, provided that not later than 3 (three) Business Days preceding the Closing Date any of the Vendors shall be entitled to designate alternative accounts for the respective amounts due to each of them, with the proviso that any new account designated by Vitonas shall also be with the Bank. The payment by the Purchaser of the Cash Consideration to such accounts shall be deemed an effective discharge of the requirement to pay such sum if and when the relevant sums shall have been received for the credit of each of such accounts;
(b) issue the Transferable EuroWeb Shares in the names of the Vendors and based upon the Vendors’ Proportion and deliver stock certificates representing the Transferable EuroWeb Shares to the Vendors or to the agents or brokerage firms as designated by the Vendors to the Purchaser in writing not later than 5 Business Days prior to Closing which Transferable EuroWeb Shares shall be qualified for trading on the NASDAQ National Market System or SmallCap Market;
(c) deliver the stock certificates representing the Escrow Shares and the irrevocable signed stock power to the Escrow Agent in full accordance with the Escrow Agreement; delivery to be confirmed in writing by the Escrow Agent to the Vendors (and if required, in accordance with Section 9.2 (c) hereof deliver the Additional Security to the Vendors in form and substance reasonably satisfactory to the Vendors).
3.2.2 at the Closing, Seller the Vendors shall:
(a) deliver to the Purchaser such resignations or recalls of members of the board of directors and supervisory board, and the auditors of the Company as the Purchaser shall request;
(b) upon receipt of the Cash Consideration, the transfer of the Transferable EuroWeb Shares and the written confirmation from the Escrow Agent pursuant to Section 3.2.1 (c) hereof
(i) cause obtain the Title Company to modify (by interlineation or otherwise) release from the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment Bank of the Title Company to issue to Purchaser the Title PolicyVitonas Security Obligations;
(ii) To deliver to the extent available and in Seller's possession or control, deliver originals of Purchaser the Leases and all Contracts affecting Sale Shares endorsed to the Real Property either at Closing or by making same available at the Property;Purchaser; and
(iii) Deliver possession deliver to the Company the duly signed Assignment Notice.
3.2.3 Immediately following the delivery of the Property, subject Sale Shares pursuant to Section 3.2.2(b)(ii) the Permitted Exceptions and the rights of parties in possession;
(iv) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") Purchaser shall be registered in the form attached hereto as Exhibit "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contracts;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 share register of the Internal Revenue Code of 1986, Company as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance owner of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters"); and
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this AgreementSale Shares.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Fleminghouse Investments LTD), Sale and Purchase Agreement (Euroweb International Corp)
Closing Matters. (a) At Closing, Seller shall:
(i) cause the Title Company to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment of the Title Company to issue to Purchaser the Title Policy;
(ii) To the extent available and in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the Property;
(iii) Deliver possession of the Property, subject to the Permitted Exceptions and the rights of parties in possession;
(iv) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contracts;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters"); and
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates On or before the Close of Good Standing and Corporate ExistenceEscrow, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver to Escrow Agent the following: (i) a Closing Statement setting Special Warranty Deed conveying fee simple title to the Property to Buyer, subject to Permitted Title Exceptions; (ii) an Affidavit of Real Property Value in connection with the conveyance of the real property; (iii) any documents that may be required to transfer and convey to Buyer the Property, including without limitation any water rights or other rights appurtenant to the Property, or to obtain Buyer’s title policy; and (iv) an approved settlement statement;
B) On or before the Close of Escrow, Buyer shall deliver to Escrow Agent the following: (i) certified funds or wire transfer of the funds required by Buyer to close this transaction as shown on the approved settlement statement; and (ii) the Affidavit of Real Property Value;
C) Escrow Agent is hereby instructed to furnish and deliver to Buyer, at the Close of Escrow, at Seller’s expense, a standard owner’s title insurance policy (or binding commitment to issue same) in the amount of the purchase price insuring Buyer that Buyer has acquired good and marketable fee simple title to the Property subject only to (i) the permitted title exceptions, and (ii) the printed exceptions and conditions customarily set forth the Purchase Price in Escrow Agent’s standard form owner’s policy of title insurance; and
D) All real property taxes and all prorationsassessments, adjustments utilities costs, and credits thereto andrents, if necessaryany, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing.
(d) At Closing, for the following items Property for the period in which Closing occurs shall be prorated as of the Closing Date with all items date of income and expense for Close of Escrow based on the Property being borne by Purchaser for latest information available to the Closing Date: rents; Escrow Agent. Reasonable escrow fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership borne one-half by each party; each party shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to pay its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. own attorneys fees; Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to providetransfer taxes or documentary stamps or comparable taxes or charges; and, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, unless provided elsewhere in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii)contrary, Seller all other closing costs shall be entitled to attempt to collect all rents charged and other charges which became due prior allocated to the Closing Date from any of parties in the Tenants. The provisions of this Section 7.2(e) shall survive the Closingmanner customary for commercial real estate transactions in Cochise County, Arizona.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (GLADSTONE LAND Corp)
Closing Matters. 7.1 On any Closing Date, the Vendors and the Purchaser will complete the applicable transactions contemplated by this Agreement and deliver the documents required to complete the transactions. The closing will be held at the place mutually agreed on by the parties in Alberta.
7.2 On the First Closing Date or as soon as possible thereafter, the Vendors will deliver or cause to be delivered to the Purchaser and CTI the following:
(a) At Closing, Seller shall:
(i) cause the Title Company to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment a legal opinion of the Title Company solicitors of the Vendors or the Companies that the Shares were legally created and are fully paid and non-assessable, that the Companies have taken all necessary corporate actions to issue authorize and approve the transfer of the Shares to Purchaser the Title PolicyPurchaser, and that the transfer will not breach or cause a breach of any terms of the Companies’ Articles of Incorporation or Bylaws;
(iib) To the extent available and in Seller's possession or control, deliver originals a certificate of the Leases Vendors confirming the accuracy of all representations and warranties contained in section 4.1 of this Agreement, the fulfilment of all Contracts affecting covenants and conditions under this Agreement, unless waived, and any other matters that the Real Property either at Closing or by making same available at the PropertyPurchaser and CT! may reasonably require;
(iiic) Deliver possession evidence that all shareholder loans of the Property, subject Vendors to the Permitted Exceptions and the rights of parties Companies have been repaid in possessionfull;
(ivd) To a shareholders agreement signed by the extent available and Vendors in Seller's possession, deliver copies respect of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") Companies in the form attached hereto as Exhibit "B", conveying the Real PropertySchedule “J”;
(vie) Executecopies of two cancelled certificates, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") being one certificate registered in the form attached hereto as Exhibit "C"name of each of the Vendors representing 13 previously issued Shares, conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contractsfor a total of 26 Shares;
(viif) Deliver evidence a certificate registered in the name of its authority to execute the Deed and Purchaser representing an aggregate 26 previously issued Shares purchased from the ▇▇▇▇ of SaleVendors;
(viiig) Deliver a non-foreign entity certification certificate registered in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 name of the Internal Revenue Code of 1986, as amended, and Purchaser representing an aggregate 20 Shares subscribed for by the regulations promulgated thereunder that Seller is not a "foreign person"Purchaser from treasury;
(ixh) Deliver an affidavit or certificate reasonably requested appointment of two new directors and one new officer of the Company as nominated by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases Purchaser and the Security Deposits to Purchaser ("Tenant Notice Letters"); and
(xi) Deliver such other documents as may be reasonably requested CT! evidenced by Purchaser duly signed resolutions or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution minutes of the Board of Directors of the Company. The Purchaser (if a corporation) authorizing Purchaser to consummate and CT! has determined that the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the 2 directors it chooses will be ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇ will remain a Director until such time as ▇▇▇▇ ▇▇▇▇▇ resigns or such time that CT! acquires 100% of Salethe shares in the Companies. If ▇▇▇▇ ▇▇▇▇▇ does resign, assuming then a board member who is mutually agreeable to both the obligations under the Leases Purchaser and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to Vendors will be re-adjusted after Closing.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closingappointed.
(i) If duly signed resolutions of the Ad Valorem Taxes Board of Directors of the Companies changing the authorized signatories of all corporate bank accounts to include two nominees of the Purchaser or CT! and two nominees of the Companies, on which account both a single signature from one of the Purchasers nominees and a single signature from one of the Companies nominees will be required.
7.3 On the First Closing Date, the Purchaser will deliver to the Vendors a shareholders agreement signed by the Purchaser in respect of the Companies in the form attached as Schedule “J”.
7.4 The Vendors’ obligations to complete on any Closing Date, other than the First Closing Date, the transactions contemplated by this Agreement are subject to the conditions that:
(a) the representations and warranties of the Purchaser and CT! as set forth in section 5.1 will be true and correct in every particular as if the Purchaser and CT! made those representations and warranties on the Closing Date;
(b) the Purchaser and CT! will have performed or complied with all covenants and agreements to be performed or complied with by it;
(c) the Purchaser and CT! will have delivered all documents to be delivered by it under section 7.9; The conditions set forth m this section are for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based Vendors’ exclusive benefit and the Vendors may waive these conditions in writing in whole or in part on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of before the Closing Date, and where necessarybut save as so waived, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as completion by the Vendors of the transactions contemplated by this Agreement will not prejudice or affect in any way the Vendors’ rights regarding the representations and warranties of the Purchaser and CT! set forth in sections 5.1 and 5.2.
7.5 On any Closing Date. Seller shall pay all utilities up to and including , other than the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the First Closing Date, the amount of such deposit(sVendors will deliver or cause to be delivered to the Purchaser and CT! the following:
(a) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction a legal opinion of the conditions imposed by solicitors of the utility company.
(iii) Seller shall at Closing pay Vendors for the Companies that the Shares were legally created and are fully paid and non-assessable, that the Companies has taken all necessary corporate actions to authorize and approve the transfer of the Shares to the Purchaser, and that the transfer will not breach or cause a breach of any terms of the Companies’ Articles of Incorporation or Bylaws;
(b) a certificate of the Vendors confirming the accuracy of all representations and warranties contained in cashsection 4.! of this Agreement, the fulfilment of all covenants and conditions under this Agreement, unless waived, and any other matters that the Purchaser and CT! may reasonably require;
(c) the cancelled certificates registered in the names of the Vendor representing the applicable number of Shares purchased by the Purchaser hereunder; and
(d) the certificates registered in the name of the Purchaser representing the applicable number of Shares purchased or subscribed for by the Purchaser hereunder.
7.6 On any Closing Date, other than the First Closing Date, the Purchaser will deliver to each of the Vendors or to the Companies, as the case may be, the applicable cash sum in the amount of any rents paid to the Seller by purchase price or subscription price, as applicable, or the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent appropriate number of CT! Shares as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing specified in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant Schedule “I” to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the ClosingAgreement.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Sources: Share Purchase and Subscription Agreement (Wescorp Energy Inc)
Closing Matters. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing:
(a) At Closing, Seller shall:
(i) cause the Title Company Buyer shall deliver to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment of the Title Company to issue to Purchaser the Title Policy;
(ii) To the extent available and in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the Property;
(iii) Deliver possession of the Property, subject to the Permitted Exceptions and the rights of parties in possession;
(iv) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a Heller that amount e▇▇▇▇ ▇o all outstanding principal, interest, costs and expenses owing to Heller as of saleMarc▇ ▇▇, assignment and assumption (1999(the "HELLER AMOUNT"), by ▇▇▇▇ transfer of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contracts;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters"); and
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired immediately available funds to the account designated by Title Company and available for disbursement by wire transfer Heller prior to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ ▇▇▇g.
(b) Buyer shall deliver an amount equal to (i) the remainder of Sale$9,000,000 MINUS the Heller Amount (such ▇▇▇▇▇▇der being the "REMAINING AMOUNT") PLUS (ii) the $30,000 amount of the Breakup Fee referred to in Section 5.6 below (such aggregate amount being the "ESCROW AMOUNT"), assuming the obligations under the Leases and the Contracts from and after Closing and the obligationin escrow to Seller by wire transfer of immediately available funds on March 15, whether arising before or after Closing1999, relating in such amount to the physical or environmental condition trust account of Fifth-Third Bank (the "ESCROW AGENT" which term includes any successor escrow agent who becomes the escrow agent of the Property;
Escrow Amount with the consent of both Seller and Buyer (v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and which consent shall not be withheld by either party if such successor is responsible for the Security Deposits; anda financial institution regulated by state or federal banking authorities)).
(c) At Closing, Purchaser and Seller shall execute deliver to Buyer such bills of sale, endorsements, assignments and deliver a Closing Statement setting forth other good and sufficient instruments of conveyance and transfer, in form and substance reasonably satisfactory to Buyer, as shall be effective to vest in Buyer all of Seller's right, title and interest in and to the Purchase Price and all prorations, adjustments and credits thereto Assets and, if necessarysimultaneously therewith, a post-closing agreement with respect will take such steps as may be necessary to any adjustments based on estimates that are to be re-adjusted after Closingplace Buyer in actual possession and operating control of the Assets.
(d) At Closing, the following items Buyer shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited deliver to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaserwritten undertakings, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date form and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser substance reasonably satisfactory to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights whereby Buyer shall assume and agree to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain perform the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase PriceAssumed Liabilities.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title Buyer shall deliver to each other such other documents, certificates, instruments and writings required to be delivered pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before Article VI of this Agreement or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations otherwise required pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the ClosingAgreement.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Closing Matters. (a) At Closing, Seller shall:
(i) cause the Title Company to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment The closing of the Title Company to issue to Purchaser Separation under this Agreement will take place at the Title Policy;
(ii) To offices of Fenwick & West LLP, Two Palo Alto Square, Palo Alto, California, at 7:00 a.m. Pacific Time, concurrent with the extent available consummation and in Seller's possession or control, deliver originals closing of the Leases Initial Public Offering or at such other time and all Contracts affecting the Real Property either at Closing or place as HNC, Retek and RIS shall mutually agree upon in a writing signed by making same available at the Property;
(iii) Deliver possession each of the Property, subject to the Permitted Exceptions them. The "Closing" and the rights of parties in possession;
(iv) To date on which the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating Closing occurs is referred to herein as the Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contracts;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice LettersClosing Date"); and
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled HNC's obligation to pursue eviction proceedings in connection with any such legal action. Seller shall retain consummate the Security Deposits Separation and to effect the amount thereof as reflected on the Rent Roll Closing shall be credited subject to the Purchase Price.satisfaction and fulfillment of the conditions to HNC's obligations set forth in Section 3.3. At the Closing, to the extent that they have not already done so, the parties will take each of the following actions:
(a) HNC shall execute and deliver to Retek (or to RIS, in the case of deliverables relevant to RIS) such bills of sale, stock powers, assignments of contracts and other instruments or transfer, conveyance and assignment as and to the extent necessary to evidence the transfer, conveyance and assignment of all of HNC's or its subsidiaries' (other than Retek or RIS) right, title and interest in and to Retek Assets to Retek or RIS, as the case may be;
(b) HNC shall execute and deliver each of the Ancillary Agreements to Retek and RIS, as applicable;
(c) Retek shall execute and deliver to HNC (and, with regard to any liabilities assumed for RIS, to RIS) such bills of sale, assumptions of contracts and other instruments or assumption as may be necessary to evidence the valid and effective assumption of Retek Liabilities by Retek and RIS;
(d) Retek shall execute and deliver each of the Ancillary Agreements to HNC and RIS, as applicable;
(e) Purchaser agrees to: (i) assume RIS shall execute and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all HNC and RIS such bills of the Tenants; and (iv) correct on behalf sale, assumptions of Seller all rents contracts and other charges which become due prior instruments or assumption as may be necessary to evidence the Closing Date pursuant to the Leases but which Seller has not collected as valid and effective assumption of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred Retek Liabilities by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.RIS;
(f) The agreements set forth RIS shall execute and deliver each of the Ancillary Agreements to HNC and Retek, as applicable; and
(g) Either (i) Retek and RIS on the one hand, or (ii) HNC on the other hand, as applicable under the provisions of Section 2.6, shall pay to the other the amount payable by it under the provisions of Section 2.6 to settle all then outstanding intercompany accounts in subparagraphs (d) and (e) of this accordance with Section 7.2 shall survive the Closing and be enforceable until fully performed2.6.
Appears in 1 contract
Sources: Separation Agreement (Retek Inc)
Closing Matters. At the Closing (a) At Closingeach Buyer will wire transfer or otherwise make available in same day funds to the Company its or his, Seller shall:
as the case may be, portion of the Purchase Price, (i) cause the Title Company to modify (by interlineation or otherwiseb) the Commitment Company shall deliver certificates to reflect SBIC Partners and ▇'▇▇▇▇▇ representing Seven Hundred Fifty Thousand Six Hundred Eighty-Nine (750,689) shares of Class B Stock and Two Hundred Six Thousand Six Hundred Eleven (206,611) shares of Class B Stock, respectively, (c) the Permitted Exceptionstransactions contemplated by the FAC/Exeter Securities Purchase Agreement shall be consummated in accordance with the terms thereof, thereby indicating the commitment (d) each of the Title Company to issue to Purchaser the Title Policy;
(ii) To the extent available and in Seller's possession or controlCompany, deliver originals of the Leases Exeter, Buyers and all Contracts affecting the Real Property either at Closing or by making same available at the Property;
(iii) Deliver possession of the Property, subject to the Permitted Exceptions and the rights of other parties in possession;
(iv) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property;
(v) Execute, acknowledge relevant thereto shall execute and deliver a special warranty deed ("Deed") an amended and restated Stockholders Agreement in the form attached hereto as Exhibit B (the "BAmended and Restated Stockholders Agreement"), conveying (e) each of the Real Property;
(vi) ExecuteCompany, acknowledge Exeter, the Buyers and all other parties relevant thereto shall execute and deliver a ▇▇▇▇ of salean amended and restated Registration Rights Agreement, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit C (the "CAmended and Restated Registration Rights Agreement"), conveying without warranty (f) the Personalty and assigning Seller's interest in Certificate of Amendment to Certificate of Incorporation of the LeasesCompany shall be amended, Intangible Property, Security Deposits and the Contracts;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver a non-foreign entity certification in the form of the certificate of amendment attached hereto as Exhibit "D", certifyingto provide, in compliance with Section 1445 among other things, for the immediate right of the Internal Revenue Code Class B Stock to vote on all corporate matters and (g) each representative of 1986, FAC and/or SMS who is presently serving as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance officer and/or director of the Title Policy;
(x) Deliver Company, Golden State Vintners, a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser California corporation ("Tenant Notice LettersGSV"); and
(xi) Deliver such , or any other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence subsidiary of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller either entity shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing.
(d) At Closing, the following items shall be prorated forms of resignation attached hereto as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change Exhibit E. All agreements referenced in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) 1.3 shall survive Closing.
(ii) Purchaser shall take all steps necessary sometimes be collectively referred to effectuate the transfer of all utilities to its name herein as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent RentsAncillary Agreements."). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Sources: Stock Purchase Agreement (Golden State Vintners Inc)
Closing Matters. (a) At Closing, Seller shall:
(i) cause Cause the Title Company to modify (by interlineation or otherwise) the Commitment to reflect only the Permitted Exceptions, thereby hereby indicating the commitment of the Title Company to issue to Purchaser the Title Policy;; and
(ii) To the extent available and in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the Property;
(iii) Deliver possession of the Property.
(b) At Closing, subject Seller shall execute, deliver and acknowledge the following documents:
(i) A special warranty deed (“Deed”), conveying fee simple title to the Property to Purchaser, free and clear of any liens and encumbrances other than the Permitted Exceptions and the rights of parties in possessionad valorem taxes;
(iv) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contracts;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters"); and
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(bc) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be paid by cashier’s check or wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 2:00 p.m., Dallas, Texas local time, on the Closing Date) or to Seller as provided in Section 2.1);
(ii) Execute and deliver acknowledge the Deed;
(iii) Execute and delver such other documents as may be reasonably required by Seller or Title CompanyCompany including, including but not limited to, a certified copy of a resolution of the Board board of Directors directors of Purchaser (if a corporation) in form approved by Seller authorizing Purchaser to execute the documents necessary to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;; and
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases acknowledge such release and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and indemnification document as Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closingmay require.
(d) At Closing, All normal and customarily proratable items (with the following items exception of ad valorem and similar taxes and assessments) relating to the Property shall be prorated between Seller and Purchaser as of the Closing Date with Closing. Real and personal property ad valorem and similar taxes and assessments will not be prorated. Purchaser shall assume all items of income responsibility and expense liability for the Property being borne by Purchaser payment of all ad valorem and similar taxes and assessments for the year in which Closing Date: rents; fees occurs, and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other for the payment of any additional ad valorem taxes and assessments ("Ad Valorem Taxes"including penalties and interest) for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes when assessed relating to the year of Closing or prior years arising out of a change in the use of the Real Property Land or a change in ownership shall be paid by Purchaser' when assessedownership. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e7.02(d) shall survive the Closing.
(f) The agreements set forth in subparagraphs (d) and (e) Purchaser shall provide to Seller for its review and approval no later than ten (10) days prior to Closing; (i) Certificates of this Section 7.2 Good Standing and Corporate Existence, By-laws and articles of Incorporation, if Purchaser is a corporation; (ii) Partnership Agreement and, if appropriate, Certificate of Limited Partnership, if Purchaser is a partnership; or (iii) Trust Agreement if Purchaser is a trust or is acting as a trustee. Purchaser shall survive provide such other documents as Seller shall reasonably request, and the Closing and hereunder shall be enforceable until fully performedcontingent upon Seller’s approval thereof.
Appears in 1 contract
Sources: Agreement of Sale and Purchase
Closing Matters. (a) At Closing, Seller shall:
(i) cause the Title Company to modify (by interlineation Deliver originals or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment of the Title Company to issue to Purchaser the Title Policy;
(ii) To the extent available and in Seller's possession or control, deliver originals certified copies of the Leases and all Contracts affecting the Real Property either at the place of Closing or by making same available at the Property;
(iiiii) Deliver possession of the Property, subject only to the Permitted Exceptions and the rights of parties in possessionTenants;
(iviii) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property and other items of Intangible Property, any plans and specifications, guaranties, warranties, manuals, keys and similar items;
(iv) Execute, acknowledge and deliver a quit claim deed ("Deed") of the Real Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption sale ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without representation or warranty the Personalty and an instrument of assignment ("Assignment") assigning without representation or warranty, except as expressly provided herein, Seller's interest in the Leases included in Exhibit D, any New Leases, the Intangible Property, the Security Deposits Deposits, the Contracts included in Exhibit D and any New Contracts and providing that Purchaser assumes all obligations under such Leases and Contracts accruing after the ContractsClosing and that each party shall indemnify the other for losses arising out of claims based on circumstances prevailing during their respective periods of ownership of the Property;
(vi) Deliver evidence reasonably satisfactory to Purchaser's title company of its authority to execute the Deed;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Salea non-foreign entity certification;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Property and Leases to Purchaser;
(ix) Deliver evidence of the termination of the existing property management agreement and leasing agreement for the Security Deposits Property together with any prospect list prepared by the leasing agent in connection with such termination;
(x) Deliver originals of all Estoppel Certificates received by Seller which were not previously furnished to Purchaser ("Tenant Notice Letters"); andPurchaser;
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence affidavits, resolutions of authority to sell Seller's board of trustees authorizing the sale of the Property in accordance with this AgreementAgreement and designating those persons authorized to execute and deliver all necessary documents at Closing and an affidavit in favor of such title company in form and substance customarily delivered in connection with commercial transactions in New York City to omit from any title insurance policy issued to Purchaser or Purchaser's mortgagee exceptions for (x) parties in possession (other than with respect to Tenants under the Leases or New Leases), (y) mechanic's liens created by or through Seller and (z) and the so-called "recordation gap";
(xii) Deliver all Security Deposits including any interest earned thereon to the extent required to be returned to any Tenant under any Lease or New Lease. If any Security Deposit is in the form of a letter of credit, Seller shall use reasonable efforts to obtain and deliver at the Closing an amendment thereto or a replacement thereof naming Purchaser as beneficiary. If any such letter of credit has not been so amended or replaced as of the Closing, at Closing Seller shall enter into an agency agreement with Purchaser reasonably acceptable to both parties pursuant to which Seller shall acknowledge that any such letter of credit is in the name of Seller as agent for Purchaser, and that Seller will, as agent for Purchaser and at Purchaser's expense, present and draw upon such letter of credit upon demand by Purchaser. The obligations of Seller with respect to such letter of credit Security Deposit shall survive the Closing;
(xiii) Execute and deliver a management agreement pursuant to Section 7.05;
(xiv) Execute and deliver a current rent roll for the Property, certified as true, correct and complete by Seller; and
(xv) Execute and deliver the New York State Real Estate Transfer Tax and New York City Real Property Transfer Tax forms.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company less $2,000,000 and available for disbursement any adjustments provided herein) by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver a management agreement pursuant to Section 7.05;
(iii) Execute and deliver the New York State Real Estate Transfer Tax and New York City Real Property Transfer Tax forms;
(iv) Execute and deliver such other documents as may be reasonably required by Seller or Title Companythe title company including, including but not limited to, a certified copy of a resolution of the Board board of Directors directors, general partners or managers of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(ivv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases Sale and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the PropertyAssignment;
(vvi) Execute and deliver the Tenant Notice Letters notice letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto thereto, and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees rents (including base rent, operating expense and assessmentstax escalations and other additional rent); prepaid and accrued expenses (including, without limitation, utility charges, water and sewer charges, fees for licenses and permits, and the cost of fuel) and obligations under Contracts listed in Exhibit D and any New Contracts; accrued expenses; and real and personal ad valorem and other ad valorem taxes and assessments against the Property ("Ad Valorem Taxes") for the year of Closing.); provided that:
(i) If the Ad Valorem Taxes for the 1996-1997 tax year of Closing are not known or. or cannot be reasonably estimated, taxes they shall be adjusted based on taxes for an estimate obtained using the year prior to Closingthen current assessed value of the Property as of the Closing and the tax rate and multiplier reflected by the Ad Valorem Taxes due and payable in the 1995-1996 tax year. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, adjustments will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i7.02(d)(i) shall survive Closing.
(ii) From and after the Closing Date, Purchaser shall have the right to control all tax certiorari and tax reduction proceedings relating to the Property, whether for tax years prior to, on or after the Closing Date. Any tax refund or credit obtained by Purchaser (net of any costs of obtaining such refund) attributable to the period prior to the Closing Date shall be paid, first, to any Tenants entitled thereto and the balance, if any, to Seller (and with respect to any credit, the balance shall be paid to Seller when Purchaser realizes the benefit of such credit).
(iii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its Purchaser's name as of the Closing Date, and where necessary, Purchaser shall post deposits with the utility companies. Purchaser Seller shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities utility charges accruing up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) (or to provide any other deposits with service providers) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) (or such other service providers) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the Seller's deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility companycompany (or such other service providers).
(iiiiv) Seller shall at Closing pay provide to the Purchaser, in cash, Purchaser a credit for the amount of any rents paid to the Seller by the Tenants, Tenants for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals Delinquent Rents collected on or after the Closing Date shall be allocated first allocated, first, to the most recent then current month, next to the month for in which rental is due by the Tenant Closing occurs, next to any other delinquency after the Closing Date, and then finally to Delinquent Rentsany other delinquency prior to the Closing Date. Any Delinquent Rents collected by Purchaser after Closing shall be held in trust and forthwith paid by Purchaser to Seller subject to and in accordance with the foregoing allocation provision. Purchaser shall use reasonable efforts to collect such Delinquent Rents, but in no event shall Purchaser be forthwith paid by Purchaser obligated to Sellercommence legal proceedings for collection against any Tenant. Once any Delinquent Rents are in excess of ninety (90) days past due, all All rights to pursue collection of such amounts Delinquent Rents shall vest solely in SellerPurchaser. Purchaser shall settle all common area maintenance charges, providedtax reimbursements and any percentage rents based on sales for 1997 with the Tenants and (1) to the extent the Tenants are required to pay additional amounts for 1997, howeverPurchaser shall pay to Seller its pro rata share thereof as and when received, that or (2) to the extent the landlord is required to refund or credit amounts for common area maintenance charges or tax reimbursements to the Tenants, Seller shall not be entitled pay to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount Purchaser its pro rata share thereof as reflected on the Rent Roll promptly following a request therefor (which request shall be credited supported by appropriate financial information). Purchaser shall provide to Seller such financial information as shall be reasonably requested by Seller to verify the Purchase Priceitems described in clauses (1) and (2) above.
(ev) Purchaser agrees to: (i) assume and perform all of the covenants of The costs incurred or agreed to by Seller and Seller's predecessor in title pursuant to the securing Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or executed after the Closing Date relating date hereof, including, without limitation, brokerage commissions (including in respect of renewals and expansions), work letter or tenant installation costs or allowances, lease takeover costs, reasonable attorneys' fees and disbursements, advertising expenses and any other tenant inducement costs (collectively, "Leasing Costs") shall be the responsibility of Purchaser. To the extent such Leasing Costs relate to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due Leases executed prior to the Closing Date pursuant date hereof, such costs shall remain the obligation of Seller, except that Purchaser will be responsible for all leasing commissions due with respect to renewals and extensions of existing Leases first exercised after the Leases but which Seller has not collected as date hereof.
(vi) The terms of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' feesSection 7.02(d) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Cornerstone Properties Inc)
Closing Matters. Upon the terms and subject to the conditions set forth in this OTA, at the Closing:
(a) At Closing, Seller shall:
(i) cause the Title Company Transferor shall deliver to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment Transferee a bill of the Title Company to issue to Purchaser the Title Policy;
(ii) To the extent available and in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the Property;
(iii) Deliver possession of the Property, subject to the Permitted Exceptions and the rights of parties in possession;
(iv) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") sale in the form attached hereto as Exhibit "B"3.2(a) (the “Bill of Sale”) and such endorsements, conveying assignment instruments, and other instruments of transfer and conveyance as shall be reasonable or necessary to convey, transfer, assign and deliver the Real PropertyAssets to Transferee pursuant to the terms of this OTA and to convey, transfer, assign and deliver any and all interest it has in the furniture, fixtures and equipment of the Facility to the Purchaser under the Purchase Agreement (if applicable);
(vib) ExecuteTransferor shall deliver an assignment of its interests to the items listed in Article II including, acknowledge and deliver a ▇▇▇▇ of salewithout limitation, the Assumed Contracts, pursuant to an assignment and assumption ("▇▇▇▇ of Sale") agreement in the form attached hereto as Exhibit "C", conveying without warranty 3.2(b) (the Personalty “Assignment and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the ContractsAssumption Agreement”);
(viic) Deliver evidence of its authority Transferor and Transferee shall execute and deliver to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver other a non-foreign entity certification Certificate in the form attached hereto as Exhibit "D", certifying, in compliance 3.2(c) (“Bring Down Certificate”);
(d) Transferor and Transferee shall execute a closing statement with respect to the prorations contemplated by Section 1445 of the Internal Revenue Code of 1986, as amended3.3 hereof, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by Party owing pursuant to such statement shall pay the Title Company amount due in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters"); and
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and immediately available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents funds at Closing;
(iiie) Deliver Not later than ten (A10) Certificates days after the Closing, Transferor shall execute and deliver to Transferee a detailed schedule and an assignment of Good Standing all Resident Trust Funds;
(f) Transferor shall execute and Corporate Existence, and (B) copies deliver to Transferee an assignment of any and all of security deposits or advance deposits from Residents, and Transferee shall deliver to Transferor a written receipt for such funds indicating that Transferee is accepting such funds in trust for the documents evidencing the corporate structure of Purchaser which Seller reasonably may requestResidents;
(ivg) Execute and Transferor shall deliver the ▇▇▇▇ of Saleto Transferee, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical extent that they are not posted at the Facility, certificates, licenses, permits, authorizations and/or approvals issued for or environmental condition of the Propertywith respect to such Facility by any Governmental Entity;
(vh) Execute Transferor shall deliver to Transferee, or leave at the Facility, the originals (or copies) of all Assumed Contracts in effect on the Closing Date;
(i) Transferor shall deliver to Transferee a current and complete list of the names of each Resident in the Facility;
(j) Not later than ten (10) days after the Closing, Transferor shall deliver a detailed Accounts Receivable aging as of the Tenant Notice Letters Effective Time noting all balances owed to each Tenant acknowledging that Purchaser has received and is responsible Transferor for dates of service prior to the Security DepositsEffective Time as described in Section 6.10 below; and
(ck) At Closing, Purchaser and Seller Transferor shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect provide to any adjustments based on estimates Transferee an updated Schedule 4.6(a) that are to be re-adjusted after Closing.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name lists Transferor’s employees as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Closing Matters. 7.1 The Closing will take place at the Closing Time at such place as the Investor may determine.
7.2 The Investor’s obligation to complete the transactions contemplated by this Agreement is subject to the conditions that:
(a) At Closing, Seller shall:
(i) cause the Title Company to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment representations and warranties of the Title Company to issue to Purchaser set out in sections 4.1 will be true and correct in every particular as if the Title Policy;
(ii) To Company had made those respective representations and warranties on the extent available and in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the Property;
(iii) Deliver possession of the Property, subject to the Permitted Exceptions and the rights of parties in possession;
(iv) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contracts;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters")Date; and
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price Company will have delivered all documents to be delivered under section 7.3. The conditions set out in this section 7.2 are for the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases Investor’s exclusive benefit and the Contracts from and after Closing and the obligation, whether arising Investor may waive those conditions in writing in whole or in part on or before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessarybut save as so waived, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as completion by the Investor of the Closing Date. Seller shall pay all utilities up to transactions contemplated by this Agreement will not prejudice or affect in any way the Investor’s rights regarding the representations and including warranties of the Company and those representations and warranties will survive the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on one year.
7.3 On the Closing Date, the amount Company will deliver to the Investor or as otherwise directed by the Investor:
(a) satisfactory evidence representing the Share registered in the name of such deposit(sthe Investor;
(b) shall be credited to Seller a certificate of an officer of the Company certifying the securities register of the Company, as at the date of Closing;
(c) a certificate of an officer of the Company confirming the accuracy of all representations and warranties of the Company contained in section 4.1 and the Purchase Price shall be adjusted accordingly. In such eventfulfillment of all covenants and conditions under this Agreement, the deposit(sunless waived;
(d) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction a copy of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as directors’ resolutions or directors’ minutes of the Closing Date (hereinafter called Company appointing J▇▇▇ ▇▇▇▇▇▇▇▇▇ as a director of the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.Company; and
(e) Purchaser agrees to: (i) assume and perform all a copy of the covenants directors’ resolutions of Seller the Company authorizing the Company to enter into this Agreement and Seller's predecessor in title pursuant to carry out the transactions contemplated herein including approving the issuance of the Share to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following Investor.
7.4 On the Closing Date, the Investor will deliver to Seller the Company or as otherwise directed by the Company:
(a) a certification to the effect that the Tenant Notice Utters have been delivered to all certificate of an officer of the Tenants; Investor confirming the accuracy of all representations and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as warranties of the Closing Date Investor contained in section 5.1 and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies the fulfillment of all covenants and holds Seller harmless from and against any and all claimsconditions under this Agreement, costs and expenses unless waived;
(including reasonable attorneys' feesb) asserted against or incurred by Seller and arising out a copy of the failure directors’ resolutions of Purchaser the Investor authorizing the Investor to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of enter into this Agreement and to carry out the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.transactions contemplated herein;
(fc) The agreements set forth in subparagraphs an executed subscription agreement for the Share; and
(d) and (e) of this Section 7.2 shall survive US$2,000,000 deposited into accounts as directed by the Closing and be enforceable until fully performedCompany.
Appears in 1 contract
Sources: Share Acquisition & Investment Agreement (Sara Creek Gold Corp.)
Closing Matters. (a) Seller's Deliveries. At Closing, Seller shallshall deliver:
(i) cause the Title Company to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment of the Title Company to issue to Purchaser the Title Policy;
(ii) To the extent available and in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the Property;
(iii) Deliver possession of the Property, subject to the Permitted Exceptions Exceptions;
(ii) to the extent in Seller's or Seller's agent's possession or control, copies of all Permits;
(iii) an executed and acknowledged special warranty deed (the rights of parties "DEED") in possessionsubstantially the form set forth in Exhibit B conveying the Real Property subject to the Permitted Exceptions;
(iv) To a bill of sale in substantially the extent available form of Exhibit C (the "BILL OF SALE"), executed and in ac▇▇▇▇ledged by Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to conveying without warranty the PropertyPersonalty;
(v) Executean executed Assignment and Assumption of Warranties in substantially the form of Exhibit E (the "ASSIGNMENT OF WARRANTIES");
(vi) a certificate of Seller respecting the non-foreign status of Seller in the form set forth in Exhibit D attached hereto;
(vii) the originals of the Warranties, acknowledge Service Contracts, Plans and deliver a special warranty deed Permits in Seller's or Seller's Agent's possession or control;
(viii) an executed Lease between Purchaser and Dave & Buster I, L.P. ("DeedTENANT") in ▇▇ substantially the form attached hereto as Exhibit F (the "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contracts;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice LettersLEASE"); and
(xiix) Deliver an executed guaranty of the Lease by Dave & Buster's, Inc. ("GUARANT▇▇") in favor of Purchaser as Landlord under the Lease, in the form attached to the Lease as Exhibit D.
(x) such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title CompanyClosing Agent, including including, but not limited to, a certified copy documents evidencing the authority of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser Seller to consummate the purchase sale of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Dave & Busters Inc)
Closing Matters. (a) At ClosingExpressly conditioned upon Buyer's compliance with its obligations under SECTION 6.2(B), Seller shallshall deliver at Closing:
(i) cause a California form of Grant Deed for the Title Company to modify Property (the "DEED"), duly executed and acknowledged by interlineation Seller, containing no exceptions or otherwise) the Commitment to reflect conditions except the Permitted Exceptions, thereby indicating conveying to Buyer, fee simple title to the commitment of Real Property and Improvements as specified in SECTION 2.1(A), substantially in the Title Company form attached to issue to Purchaser the Title Policythis Contract as EXHIBIT I;
(ii) To at least 2 counterparts of a ▇▇▇▇ of Sale for the extent available and Property (the "▇▇▇▇ OF SALE"), duly executed by Seller, substantially in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the Propertyform attached to this Contract as EXHIBIT J;
(iii) Deliver at least 2 counterparts of an Assignment of Lease, Contracts and Warranties for the Property (the "ASSIGNMENT OF LEASE") duly executed by Seller, substantially in the form attached to this Contract as EXHIBIT K.
(iv) an IRC Section 1445 Certification, duly executed by Seller, substantially in the form attached to this Contract as EXHIBIT L;
(v) at least one counterpart of a notice to Tenant (the "TENANT NOTICE LETTER"), duly executed by Seller in substantially the form attached to this Contract as EXHIBIT M, to be addressed to Tenant at the Real Property;
(vi) at least one counterpart of all assumption documents required to be executed by Seller with respect to Buyer's assumption of the Existing Loan;
(vii) possession of the Property, subject to the Permitted Exceptions and the rights of parties in possessionTenant;
(ivviii) To the following to the extent available and they are in the Seller's possessionpossession or control:
(A) originals of the Lease, deliver copies the Service Contracts, the Plans, the Warranties, and the Records; and
(B) all keys to the Improvements, which keys shall be marked and identified;
(ix) a fully executed termination of all necessary permits issued any management agreement for the Property at Seller's sole cost and expense;
(x) such evidence or documents as may be reasonably required by appropriate governmental authorities the Title Company evidencing the status and utility companies relating to capacity of Seller and the authority of the person or persons who are executing the various documents on behalf of the Seller in connection with the sale of the Property;
(vxi) ExecuteSeller's written approval of the estimated closing statement of the prorations and the distribution of the closing proceeds; provided, acknowledge that the closing statement will only be delivered to the Escrow Holder and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Propertywill not be delivered to Buyer;
(vixii) Executeif Units are to be issued to any Designated Owners, acknowledge signature pages of the Buyer's Partnership Agreement duly executed by such Designated Owners as limited partners; and
(xiii) a quitclaim deed from Tenant, executed in accordance with the provisions of Section 9 of that certain Shared Appreciation Agreement amended and deliver a ▇▇▇▇ restated as of saleJanuary 1, assignment 2000 between Seller and assumption ("▇▇▇▇ Tenant, relinquishing any interest of Sale") Tenant in the form attached hereto as Exhibit "C", conveying without warranty Property other than the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the ContractsLease;
(viixiv) Deliver evidence the ESTOPPEL CERTIFICATE (as defined in SECTION 9.19); and
(xv) a California FTB Form 593-C, duly executed by Seller.
(b) No later than 4:00 p.m., Houston, Texas time, on the Closing Date, Buyer shall deliver to the Escrow Holder as a condition precedent to the obligation of Seller to perform its authority obligations under SECTION 6.2(A):
(i) by wire transfer or other immediately available federal funds, the cash portion of the Purchase Price, subject to execute applicable prorations and credits; and
(ii) at least two counterparts of the Deed Assignment of Lease and the ▇▇▇▇ of Sale, duly executed by Buyer;
(viiiiii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance at least one counterpart of all assumption documents with Section 1445 respect to Buyer's assumption of the Internal Revenue Code of 1986Existing Loan, as amended, duly executed by Buyer and the regulations promulgated thereunder that Seller is not a "foreign person"Lender;
(ixiv) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance at least one counterpart of the Title PolicyTenant Notice Letter, duly executed by Buyer;
(xv) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters"); and
(xi) Deliver such other documents as may be reasonably requested by Purchaser evidence or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or the Title Company, including but not limited to, a certified copy Company evidencing the status and capacity of a resolution Buyer and the authority of the Board person or persons who are executing the various documents on behalf of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate Buyer in connection with the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(vvi) Execute Buyer's written approval of the estimated closing statement of the prorations and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for distribution of the Security Deposits; andclosing proceeds;
(cvii) At Closingif Units are issued, Purchaser and Seller shall execute and deliver a Closing Statement setting forth if the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that Units are to be re-adjusted after Closing.
(d) At Closingcertificated certificates representing the Units duly issued by Buyer in the name of each Designated Owner, the following items shall be prorated as of the Closing Date representing the Units to which such Designated Owner is entitled pursuant to SECTION 1.2 of this Contract;
(viii) if Units are to be issued at the Closing, a fully executed Buyer's Amended and Restated Partnership Agreement, with the originally duly executed signature of its general partner, and original or photostatic copies of the signatures of all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closingexisting limited partners.
(iix) If the Ad Valorem Taxes for the year opinions of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior Buyer's counsel addressed to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name Seller and dated as of the Closing Date, and where necessarysubstantially in the form attached hereto as EXHIBITS O-1, post deposits with O-2 AND O-3 (the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company"Opinions").
(iiic) Seller and Buyer shall at Closing pay execute and deliver to the Purchaserappropriate parties any additional documents and instruments that, in cash, the amount mutual opinion of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller Buyer's counsel and Seller's predecessor in title pursuant counsel, are necessary to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to consummate this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closingtransaction.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Closing Matters. (a) At Closing, Seller shall:
(i) cause the Title Company to modify (by interlineation Deliver originals or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment of the Title Company to issue to Purchaser the Title Policy;
(ii) To the extent available and in Seller's possession or control, deliver originals certified copies of the Leases and all Contracts affecting the Real Property either at the place of Closing or by making same available at the Property;
(iiiii) Deliver possession of the Property, subject only to the Permitted Exceptions and the rights of parties in possessionTenants;
(iviii) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property and other items of Intangible Property, any plans and specifications, guaranties, warranties, manuals, keys and similar items;
(iv) Execute, acknowledge and deliver a quit claim deed ("Deed") of the Real Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption sale ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without representation or warranty the Personalty and an instrument of assignment ("Assignment") assigning without representation or warranty, except as expressly provided herein. Seller's interest in the Leases included in Exhibit D, any New Leases, the Intangible Property, the Security Deposits Deposits, the Contracts included in Exhibit D and any New Contracts and providing that Purchaser assumes all obligations under such Leases and Contracts accruing after the ContractsClosing and that each party shall indemnify the other for losses arising out of claims based on circumstances prevailing during their respective periods of ownership of the Property;
(vi) Deliver evidence reasonably satisfactory to Purchaser's title company of its authority to execute the Deed;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Salea non-foreign entity certification;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Property and Leases to Purchaser;
(ix) Deliver evidence of the termination of the existing property management agreement and leasing agreement for the Security Deposits Property together with any prospect list prepared by the leasing agent in connection with such termination;
(x) Deliver originals of all Estoppel Certificates received by Seller which were not previously furnished to Purchaser ("Tenant Notice Letters"); andPurchaser;
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence affidavits, resolutions of authority to sell Seller's board of trustees authorizing the sale of the Property in accordance with this AgreementAgreement and designating those persons authorized to execute and deliver all necessary documents at Closing and an affidavit in favor of such title company in form and substance customarily delivered in connection with commercial transactions in New York City to omit from any title insurance policy issued to Purchaser or Purchaser's mortgagee exceptions for (x) parties in possession (other than with respect to Tenants under the Leases or New Leases), (y) mechanic's liens created by or through Seller and (z) and the so-called "recordation gap";
(xii) Deliver all Security Deposits including any interest earned thereon to the extent required to be returned to any Tenant under any Lease or New Lease. If any Security Deposit is in the form of a letter of credit, Seller shall use reasonable efforts to obtain and deliver at the Closing an amendment thereto or a replacement thereof naming Purchaser as beneficiary. If any such letter of credit has not been so amended or replaced as of the Closing, at Closing Seller shall enter into an agency agreement with Purchaser reasonably acceptable to both parties pursuant to which Seller shall acknowledge that any such letter of credit is in the name of Seller as agent for Purchaser, and that Seller will, as agent for Purchaser and at Purchaser's expense, present and draw upon such letter of credit upon demand by Purchaser. The obligations of Seller with respect to such letter of credit Security Deposit shall survive the Closing;
(xiii) Execute and deliver a management agreement pursuant to Section 7.05;
(xiv) Execute and deliver a current rent roll for the Property, certified as true, correct and complete by Seller; and
(xv) Execute and deliver the New York State Real Estate Transfer Tax and New York City Real Property Transfer Tax forms.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company less $2,000,000 and available for disbursement any adjustments provided herein) by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver a management agreement pursuant to Section 7.05;
(iii) Execute and deliver the New York State Real Estate Transfer Tax and New York City Real Property Transfer Tax forms;
(iv) Execute and deliver such other documents as may be reasonably required by Seller or Title Companythe title company including, including but not limited to, a certified copy of a resolution of the Board board of Directors directors, general partners or managers of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(ivv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases Sale and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;Assignment; and
(vvi) Execute and deliver the Tenant Notice Letters notice letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and.
(c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto thereto, and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees rents (including base rent, operating expense and assessmentstax escalations and other additional rent); prepaid and accrued expenses (including, without limitation, utility charges, water and sewer charges, fees for licenses and permits, and the cost of fuel) and obligations under Contracts listed in Exhibit D and any New Contracts; accrued expenses; , and real and personal ad valorem and other ad valorem taxes and assessments against the Property ("Ad Valorem Taxes") for the year of Closing.); provided that:
(i) If the Ad Valorem Taxes for the 1996-1997 tax year of Closing are not known or. or cannot be reasonably estimated, taxes they shall be adjusted based on taxes for an estimate obtained using the year prior to Closingthen current assessed value of the Property as of the Closing and the tax rate and multiplier reflected by the Ad Valorem Taxes due and payable in the 1995-1996 tax year. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, adjustments will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i7.02(d)(i) shall survive Closing.
(ii) From and after the Closing Date, Purchaser shall have the right to control all tax certiorari and tax reduction proceedings relating to the Property, whether for tax years prior to, on or after the Closing Date. Any tax refund or credit obtained by Purchaser (net of any costs of obtaining such refund) attributable to the period prior to the Closing Date shall be paid, first, to any Tenants entitled thereto and the balance, if any, to Seller (and with respect to any credit, the balance shall be paid to Seller when Purchaser realizes the benefit of such credit).
(iii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its Purchaser's name as of the Closing Date, and where necessary, Purchaser shall post deposits with the utility companies. Purchaser Seller shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities utility charges accruing up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) (or to provide any other deposits with service providers) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) (or such other service providers) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the Seller's deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility companycompany (or such other service providers).
(iiiiv) Seller shall at Closing pay provide to the Purchaser, in cash, Purchaser a credit for the amount of any rents paid to the Seller by the Tenants, Tenants for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals Delinquent Rents collected on or after the Closing Date shall be allocated first allocated, first, to the most recent then current month, next, to the month for in which rental is due by the Tenant Closing occurs, next, to any other delinquency after the Closing Date, and then finally to Delinquent Rentsany other delinquency prior to the Closing Date. Any Delinquent Rents collected by Purchaser after Closing shall be held in trust and forthwith paid by Purchaser to Seller subject to and in accordance with the foregoing allocation provision. Purchaser shall use reasonable efforts to collect such Delinquent Rents, but in no event shall Purchaser be forthwith paid by Purchaser obligated to Sellercommence legal proceedings for collection against any Tenant. Once any Delinquent Rents are in excess of ninety (90) days past due, all All rights to pursue collection of such amounts Delinquent Rents shall vest solely in SellerPurchaser. Purchaser shall settle all common area maintenance charges, providedtax reimbursements and any percentage rents based on sales for 1997 with the Tenants and (1) to the extent the Tenants are required to pay additional amounts for 1997, howeverPurchaser shall pay to Seller its pro rata share thereof as and when received, that Seller shall not be entitled or (2) to pursue eviction proceedings in connection with any such legal actionthe extent the landlord is required to refund or credit amounts for common area maintenance charges or tax reimbursements to the Tenants. Seller shall retain the Security Deposits and the amount pay to Purchaser its pro rata share thereof as reflected on the Rent Roll promptly following a request therefor (which request shall be credited supported by appropriate financial information). Purchaser shall provide to Seller such financial information as shall be reasonably requested by Seller to verify the Purchase Priceitems described in clauses (1) and (2) above.
(ev) Purchaser agrees to: (i) assume and perform all of the covenants of The costs incurred or agreed to by Seller and Seller's predecessor in title pursuant to the securing Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or executed after the Closing Date relating date hereof, including, without limitation, brokerage commissions (including in respect of renewals and expansions), work letter or tenant installation costs or allowances, lease takeover costs, reasonable attorneys' fees and disbursements, advertising expenses and any other tenant inducement costs (collectively, "Leasing Costs") shall be the responsibility of Purchaser. To the extent such Leasing Costs relate to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due Leases executed prior to the Closing Date pursuant date hereof, such costs shall remain the obligation of Seller, except that Purchaser will be responsible for all leasing commissions due with respect to renewals and extensions of existing Leases first exercised after the Leases but which Seller has not collected as date hereof.
(vi) The terms of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' feesSection 7.02(d) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Cornerstone Properties Inc)
Closing Matters. (a) At The purchase and sale of the Purchased Blue Ant Shares contemplated by this Agreement (the “Closing”) shall take place remotely via electronic transmission of all necessary documentation (such as by use of .pdf documents).
(b) Closing shall occur at such date and at such time as determined by Blue Ant, Seller shall:which date and time shall be set forth in the Purchase Notice and which date shall be the date the Purchase Notice is sent to the Shareholder.
(c) On Closing,
(i) cause The executed copies of the Title Company following documents delivered by the Shareholder to modify Blue Ant (as required by interlineation or otherwiseSection 1.1(d) above), shall be executed by Blue Ant as required and released from escrow:
(A) the Commitment Lockup Agreement attached hereto as Schedule “B” in favour of those underwriters party to reflect that certain Underwriting Agreement dated June 10, 2021 in connection with the Permitted Exceptionspublic offering of 8,000,000 Enthusiast Shares;
(B) the Lockup and Joint Filing Agreement attached hereto as Schedule “C” for the purposes of Regulation S (“Regulation S”) under the U.S. Securities Act of 1933, thereby indicating as amended, (“Securities Act”);
(C) the commitment Power of Attorney attached hereto as Schedule “D” in connection with the Title Company to issue to Purchaser Lockup and Joint Filing Agreement; and
(D) the Title Policy;stock transfer form attached hereto as Schedule “E”.
(ii) To Blue Ant shall fill in the extent available and number of Blue Ant Shares to be transferred pursuant to the stock transfer form hereto as Schedule “E” signed by the Shareholder, which number shall be equal to the number of Purchased Blue Ant Shares to be transferred by the Shareholder in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the Propertyaccordance with this Agreement;
(iii) Deliver possession Blue Ant shall direct the transfer agent for the Enthusiast Shares to register the transfer of the PropertyPurchase Price to the Shareholder with an effective date as of the date of Closing and to deliver a direct registration statement representing the Enthusiast Shares, free and clear of all Encumbrances, registered in the name of the Shareholder, subject to and conditional upon the Permitted Exceptions and the rights of parties in possession;
(iv) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contracts;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection Shareholder complying with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters"obligations under Section 1.1(f); and
(xiiv) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price Blue Ant shall deliver to the Title Company Shareholder the Lockup and Joint Filing Agreement (all monies Purchaser is required to deliver shall be wired to with the account designated by Title Company dates filled in) and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser Lockup Agreement (if a corporationwith the dates filled in) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the pdf format via email. CUSIP No. ▇▇▇▇▇▇▇▇▇ 13D Page 66 of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing.100
(d) At Promptly after Closing, Blue Ant shall arrange for a share certificate to be promptly delivered to the following items shall be prorated Shareholder registered in the name of, or as directed by, the Shareholder in respect of any Blue Ant Shares represented by the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes"certificate(s) for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing delivered to Blue Ant that are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive ClosingPurchased Blue Ant Shares.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Closing Matters. (a) At The completion of the transactions contemplated under this Agreement shall be closed at the offices of Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, 1400, ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, at 2:30 p.m. (Calgary time) (or such other time as the Parties may agree to, acting reasonably) (the “Time of Closing, Seller shall”) on or before the second Business Day following:
(i) cause the Title Company to modify approval of the Westaim Reorganization Resolutions in respect of the Reorganization; or
(by interlineation or otherwiseii) the Commitment date on which all conditions to reflect the Permitted ExceptionsPlumb-Line Offer have been satisfied and Westaim is able to take-up and pay for securities deposited thereunder, thereby indicating whichever is later, or on such other date or at such other place as the commitment Parties may agree.
(b) Each of Westaim, Arcticor, Plumb-Line and PLMG shall deliver, at the Title Company Time of Closing, such customary certificates, resolutions and other closing documents as may be required by the other Parties hereto, acting reasonably. For greater certainty, the following matters shall occur in the following order at the Time of Closing (subject to issue the terms and conditions set forth in this Agreement and the Plumb-Line Offer):
(i) if the Westaim Shares Adjustment is a number other than zero then, prior to Purchaser taking any other action referenced in this Section 10.8(b), Westaim shall:
(A) if the Title PolicyWestaim Shares Adjustment is a negative number, file articles of amendment with the Registrar whereby the Westaim Shares Combination is effected; or
(B) if the Westaim Shares Adjustment is a positive number, file articles of amendment with the Registrar whereby the Westaim Shares Split is effected;
(ii) To the extent available and in Seller's possession or control, deliver originals Articles of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the PropertyAmendment shall be filed;
(iii) Deliver possession of the Property, subject Equity Financing shall be completed and the Equity Financing Gross Proceeds shall be released from trust and the Equity Financing Shares shall be issued to the Permitted Exceptions and subscribers under the rights of parties in possessionEquity Financing;
(iv) To Westaim and the extent available PLMG Shareholders shall execute the PLMG Share Purchase Agreement and in Seller's possessionWestaim shall purchase, deliver copies and the PLMG Shareholders shall sell, all of all necessary permits issued by appropriate governmental authorities and utility companies relating to the PropertyPLMG Securities pursuant thereto;
(v) ExecuteWestaim and Arcticor shall execute the Nascor Share Purchase Agreement and Westaim shall purchase, acknowledge and deliver a special warranty deed ("Deed") in Arcticor shall sell, all of the form attached hereto as Exhibit "B", conveying Nascor Securities and the Real PropertyArcticor Warrant pursuant thereto;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits Westaim and the ContractsFour Star Securityholders shall execute the Four Star Security Purchase Agreement and Westaim shall purchase, and the Four Star Securityholders shall sell, all of the Plumb-Line Holdings LP Securities owned or controlled by the Four Star Securityholders pursuant thereto;
(vii) Deliver evidence Westaim shall take-up and pay for all Plumb-Line Securities deposited to the Plumb-Line Offer in accordance with the conditions of its authority to execute the Deed and the ▇▇▇▇ of Sale;Plumb-Line Offer; and
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver Westaim shall deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters"); and
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified executed copy of a resolution resignation and mutual release of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing officers and directors of Westaim and resolutions of the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver Westaim Board appointing the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating Company Nominees to the physical or environmental condition Westaim Board (it being understood that the Company Nominees shall sign any such resolutions of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating Westaim Board to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid extent required by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive ClosingApplicable Law).
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Closing Matters. (a) At Closing, Seller shall:
(i) cause the Title Company to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment of the Title Company to issue to Purchaser the Title Policy;
(ii) To the extent available and in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the Property;
(iii) Deliver possession of the Property, subject to the Permitted Exceptions and the rights of parties in possession;
(iv) To the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contracts;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters"); and
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates On or before the Close of Good Standing and Corporate ExistenceEscrow, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver to Escrow Agent the following: (i) a Closing Statement setting forth Special Warranty Deed conveying fee simple title to the Purchase Price Property to Buyer, subject to Permitted Title Exceptions; (ii) an Affidavit of Real Property Value in connection with the conveyance of the real property; (iii) any documents that may be required to transfer and all prorationsconvey to Buyer the Property, adjustments including without limitation any water rights or other rights appurtenant to the Property, or to obtain Buyer’s title policy; and credits thereto and(iv) an approved settlement statement;
B) On or before the Close of Escrow, if necessaryBuyer shall deliver to Escrow Agent the following: (i) certified funds or wire transfer of the funds required by Buyer to close this transaction as shown on the approved settlement statement; and (ii) the Affidavit of Real Property Value;
C) Escrow Agent is hereby instructed to furnish and deliver to Buyer, at the Close of Escrow, at Seller’s expense, a post-closing agreement standard owner’s title insurance policy (or binding commitment to issue same) in the amount of the purchase price insuring Buyer that Buyer has acquired good and marketable fee simple title to the Property subject only to (i) the permitted title exceptions, and (ii) the printed exceptions and conditions customarily set forth in Escrow Agent’s standard form owner’s policy of title insurance;
D) Assignment fees payable to the Arizona State Land Department with respect to any adjustments based on estimates that are to the transfer of the state ag lease shall be re-adjusted after paid by Buyer at Closing.; and
(dE) At ClosingAll real property taxes and assessments, utilities costs, and rents, if any, for the following items Property for the period in which Closing occurs shall be prorated as of the Closing Date with all items date of income and expense for Close of Escrow based on the Property being borne by Purchaser for latest information available to the Closing Date: rents; Escrow Agent. Reasonable escrow fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership borne one-half by each party; each party shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to pay its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. own attorneys fees; Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to providetransfer taxes or documentary stamps or comparable taxes or charges; and, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, unless provided elsewhere in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii)contrary, Seller all other closing costs shall be entitled to attempt to collect all rents charged and other charges which became due prior allocated to the Closing Date from any of parties in the Tenants. The provisions of this Section 7.2(e) shall survive the Closingmanner customary for commercial real estate transactions in Cochise County, Arizona.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Closing Matters. (a) At the Closing, Seller shallthe Sellers will deliver to the Purchaser, each in form and substance, and executed and delivered in a manner, reasonably satisfactory to the Purchaser:
(i) cause (A) one or more bills of sale conveying in the Title Company to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment aggregate all of the Title Company Sellers’ rights in and to issue the Purchased Assets, (B) one or more assignment and assumption agreements conveying in the aggregate all of the Sellers’ rights and obligations in and to the Assumed Contracts, (C) one or more assignment and assumption agreements conveying in the aggregate all of the Leased Real Property leased by a Seller, (D) one or more assignments of the Owned Intellectual Property in recordable form, (E) such other instruments as are reasonably requested by the Purchaser to vest in the Title PolicyPurchaser title in and to the Purchased Assets in accordance with the provisions of this Agreement and (F) such other documents and agreements as are contemplated by this Agreement;
(ii) To executed consents with respect to the extent available agreements and in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the Propertymatters set forth on Schedule 2.5(a)(ii);
(iii) Deliver possession a duly executed counterpart of the Property, subject to the Permitted Exceptions and the rights of parties in possessionEscrow Agreement;
(iv) To the extent available and in Seller's possession, deliver copies a form of all necessary permits issued by appropriate governmental authorities and utility companies relating a certificate of amendment to the Propertyorganizational documents of each of the Sellers in proper form for filing, and all other appropriate certificates for filing in other applicable jurisdictions, changing the name of each Seller to a name that does not contain the word “Telefonix”, “Product Development Technologies”, “PDT” or any derivative or variation thereof;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in releases of all Liens on the form attached hereto as Exhibit "B", conveying the Real PropertyPurchased Assets other than Permitted Liens;
(vi) Execute, acknowledge evidence of payment of any and deliver a ▇▇▇▇ all bonuses due to Employees of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the ContractsSellers;
(vii) Deliver evidence resolutions of its authority to execute the Deed stockholders or members and the ▇▇▇▇ Board of SaleDirectors of each of the Sellers approving the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, certified by the appropriate officers or managers;
(viii) Deliver a non-foreign entity certification competition and non-solicitation agreement between each of the Company Shareholders and each of the members of PDT, on the one hand, and Purchaser, on the other hand, substantially in the form forms attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of Exhibits A1-A8 (the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person"“Noncompetition Agreements”);
(ix) Deliver an affidavit or with respect to each Subject Company, a certificate reasonably requested by of good standing from the Title Company in connection with its issuance Secretary of State of the Title PolicyState of Illinois and from the Secretary of State of each other State in which such Seller is qualified to do business as a foreign entity, or a comparable certificate from the jurisdiction of formation of each of the PDT Subsidiaries;
(x) Deliver a form notice letter in duly executed counterpart of the form Sellers’ License Agreement and Purchaser’s License Agreement, executed by the Sellers, with the terms of such agreements based on the term sheet attached hereto as "Exhibit E"B;
(xi) the following transfer of stock documentation for PDT UK: (A) stock transfer form duly executed by PDT UK in favor of Purchaser; (B) original stock certificate evidencing PDT’s ownership of PDT UK; (C) original registers, minute books and other records of PDT UK; (D) security code and associated email address for PDT UK to be delivered enable Purchaser to each Tenant acknowledging complete the electronic filings;
(xii) the following transfer of stock documentation for PDT Ukraine: (A) copy of transfer instructions of PDT that Seller has conveyed its interest have been submitted to PDT’s depositary institutions to effectuate the transfer of the shares to the securities account(s) of the Purchaser; (B) the extract from the PDT’s securities account evidencing PDT’s ownership of 100% shares in the Leases PDT Ukraine; (C) original registers, minute books and the Security Deposits to Purchaser ("Tenant Notice Letters")other records of PDT Ukraine; and
(xixiii) Deliver such other documents as may be a transition services agreement for post-Closing transition services reasonably requested agreed to by Purchaser or Title Companythe Parties and ▇▇▇▇▇ (the “Transition Services Agreement”), including transfer tax affidavits duly executed by the Sellers and evidence of authority to sell the Property in accordance with this Agreement▇▇▇▇▇.
(b) At the Closing, the Purchaser shallwill deliver to the Sellers, each in form and substance, and executed and delivered in a manner, reasonably satisfactory to the Sellers:
(i) Deliver (A) an assumption of the Purchase Price to Assumed Liabilities, (B) an assumption of the Title Company Leases, (all monies Purchaser is required to deliver shall be wired to C) such other instruments of assumption evidencing the account designated Purchaser’s assumption of the Assumed Liabilities as the Sellers reasonably deems necessary and (D) such other documents and agreements as are contemplated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1this Agreement;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares Closing Payment in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at ClosingSection 2.3;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all a duly executed counterpart of the documents evidencing Escrow Agreement, executed by the corporate structure of Purchaser which Seller reasonably may requestand the Escrow Agent;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition a duly executed counterpart of the PropertyNoncompetition Agreements, executed by the Purchaser;
(v) Execute a duly executed counterpart of the Sellers’ License Agreement and deliver Purchaser’s License Agreement, executed by the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security DepositsPurchaser; and
(cvi) At Closinga duly executed counterpart of the Transition Services Agreement, Purchaser and Seller shall execute and deliver a Closing Statement setting forth executed by the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after ClosingPurchaser.
(dc) At ClosingIt is understood that certain Purchased Assets may not be immediately transferable or assignable to the Purchaser, and the following items shall be prorated as Purchaser may in its sole discretion allow the Sellers to retain certain of such assets after the Closing Date with all items of income and expense for (the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date“Non-Transferable Assets”), and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as this Agreement will not constitute an assignment of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordinglyNon-Transferable Assets. In such event, (i) the deposit(s) Sellers will use commercially reasonable efforts to obtain any consent or authorization which may be assigned required to transfer or assign the Non-Transferable Assets to the Purchaser who shall have rights or to have remove or eliminate any impediment preventing the deposit(s) released to it upon satisfaction transfer or assignment of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay Non-Transferable Assets to the Purchaser, in cash, (ii) the amount of any rents paid Sellers will grant to the Seller Purchaser full use and benefit of its interest in the Non-Transferable Assets to the extent permitted by the Tenantsterms of or applicable to such Non-Transferable Assets, for it being the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as intent of the Closing Date Parties that the Purchaser have the benefit of the Non-Transferable Assets as though it were the sole owner thereof, (hereinafter called iii) the "Delinquent Rents"). All rentals collected Sellers will take all commercially reasonable actions necessary to preserve the value of the Non-Transferable Assets, (iv) the Sellers will not transfer or assign the Non-Transferable Assets to any Person other than the Purchaser or the Purchaser’s designees, (v) the Sellers will transfer or assign the Non-Transferable Assets to Purchaser at the earliest date, if any, on which such transfer or assignment can be lawfully effected and (vi) the Purchaser will be responsible for obligations relating to such Non-Transferable Assets arising or occurring on or after the Closing Date shall be allocated first as if they had been transferred or assigned to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by terms of this Agreement. Upon the request of the Purchaser, the Sellers will enforce, on behalf of the Purchaser to Seller. Once and at the Purchaser’s cost, any Delinquent Rents are in excess rights of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings the Sellers arising under or in connection with any Non-Transferable Asset. To the extent that the Purchaser is provided the benefits of any Assumed Contract, the Purchaser will perform the obligations arising, from and after the Closing, under such legal action. Seller shall retain Assumed Contract on behalf of the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase PriceSellers, except for any obligation under such Assumed Contract that constitutes a Retained Liability.
(ed) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant If Sellers fail to disclose any Contract relating to the Leases Business to which a Seller is a party and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or Purchaser becomes aware of such Contract after the Closing Date relating (a “Missed Contract”), Purchaser will have the option, in its sole discretion, to the physical or environmental condition of the Property; assume such Missed Contract. If Purchaser elects in writing to assume a Missed Contract, subject to Section 2.5(c), (i) Sellers will promptly assign, transfer, convey and deliver such Missed Contract to Purchaser, (ii) Purchaser will assume the obligations under such Missed Contract assigned to Purchaser from and after the date of assignment to Purchaser pursuant to a special-purpose assignment and assumption agreement substantially similar in terms to those of the assignment and assumption agreement executed and delivered on the Closing Date (which special-purpose agreement the Parties will prepare, execute and deliver in good faith at the Tenant Notice Letters to the Tenants; time of such transfer), (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; Missed Contract will be treated as an Assumed Contract under this Agreement and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled deemed to attempt have waived any claims for indemnification that Purchaser may have as a result of Sellers’ failure to collect disclose such Missed Contract. If Purchaser elects not to assume a Missed Contract, all rents and other charges which became due prior obligations related to such Missed Contract shall remain with the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the ClosingSellers.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Closing Matters. (a) At Closing, Seller shall:
(i) cause the Title Company to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment The closing of the Title Company to issue to Purchaser Separation under this Agreement will take place at the Title Policy;
(ii) To offices of Fenwick & West LLP, Two Palo Alto Square, Palo Alto, California, at___ a.m. Pacific Time, concurrent with the extent available consummation and in Seller's possession or control, deliver originals closing of the Leases Initial Public Offering or at such other time and all Contracts affecting the Real Property either at Closing or place as HNC, Retek and RIS shall mutually agree upon in a writing signed by making same available at the Property;
(iii) Deliver possession each of the Property, subject to the Permitted Exceptions them. The "Closing" and the rights of parties in possession;
(iv) To date on which the extent available and in Seller's possession, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating Closing occurs is referred to herein as the Property;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in the form attached hereto as Exhibit "B", conveying the Real Property;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the Contracts;
(vii) Deliver evidence of its authority to execute the Deed and the ▇▇▇▇ of Sale;
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice LettersClosing Date"); and
(xi) Deliver such other documents as may be reasonably requested by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after Closing.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled HNC's obligation to pursue eviction proceedings in connection with any such legal action. Seller shall retain consummate the Security Deposits Separation and to effect the amount thereof as reflected on the Rent Roll Closing shall be credited subject to the Purchase Price.satisfaction and fulfillment of the conditions to HNC's obligations set forth in Section 3.3. At the Closing, to the extent that they have not already done so, the parties will take each of the following actions:
(a) HNC shall execute and deliver to Retek (or to RIS, in the case of deliverables relevant to RIS) such bills of sale, stock powers, assignments of contracts and other instruments or transfer, conveyance and assignment as and to the extent necessary to evidence the transfer, conveyance and assignment of all of HNC's or its subsidiaries' (other than Retek or RIS) right, title and interest in and to Retek Assets to Retek or RIS, as the case may be;
(b) HNC shall execute and deliver each of the Ancillary Agreements to Retek and RIS, as applicable;
(c) Retek shall execute and deliver to HNC (and, with regard to any liabilities assumed for RIS, to RIS) such bills of sale, assumptions of contracts and other instruments or assumption as may be necessary to evidence the valid and effective assumption of Retek Liabilities by Retek and RIS;
(d) Retek shall execute and deliver each of the Ancillary Agreements to HNC and RIS, as applicable;
(e) Purchaser agrees to: (i) assume RIS shall execute and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all HNC and RIS such bills of the Tenants; and (iv) correct on behalf sale, assumptions of Seller all rents contracts and other charges which become due prior instruments or assumption as may be necessary to evidence the Closing Date pursuant to the Leases but which Seller has not collected as valid and effective assumption of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred Retek Liabilities by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.RIS;
(f) The agreements set forth RIS shall execute and deliver each of the Ancillary Agreements to HNC and Retek, as applicable; and
(g) Either (i) Retek and RIS on the one hand, or (ii) HNC on the other hand, as applicable under the provisions of Section 2.6, shall pay to the other the amount payable by it under the provisions of Section 2.6 to settle all then outstanding intercompany accounts in subparagraphs (d) and (e) of this accordance with Section 7.2 shall survive the Closing and be enforceable until fully performed2.6.
Appears in 1 contract
Sources: Separation Agreement (Retek Inc)
Closing Matters. (a) At the Closing, Seller shallthe Sellers will deliver to the Purchaser, each in form and substance, and executed and delivered in a manner, reasonably satisfactory to the Purchaser:
(i) cause (A) one or more bills of sale conveying in the Title Company to modify (by interlineation or otherwise) the Commitment to reflect the Permitted Exceptions, thereby indicating the commitment aggregate all of the Title Company Purchased Assets, (B) one or more assignments of the Owned Intellectual Property in recordable form, (C) such other instruments as are reasonably requested by the Purchaser to issue vest in the Purchaser title in and to Purchaser the Title Policy;Purchased Assets in accordance with the provisions of this Agreement and (D) such other documents and agreements as are contemplated by this Agreement; and
(ii) To executed consents with respect to the extent available and matters set forth in Seller's possession or control, deliver originals of the Leases and all Contracts affecting the Real Property either at Closing or by making same available at the PropertySchedule 3.3(b);
(iii) Deliver possession a duly executed counterpart of the Property, subject to the Permitted Exceptions and the rights of parties in possessionEscrow Agreement;
(iv) To evidence of having sent for filing with the extent available and in Seller's possession, deliver copies Secretary of all necessary permits issued by appropriate governmental authorities and utility companies relating the State of Delaware or other applicable Governmental or Regulatory Authority a certificate of amendment to the Propertyorganizational documents of each of the Sellers in proper form for filing, and all other appropriate certificates for filing in other applicable jurisdictions, changing the name of each Seller to a name that does not contain the word “AeroSat” or any derivative or variation thereof;
(v) Execute, acknowledge and deliver a special warranty deed ("Deed") in releases of all Liens on the form attached hereto as Exhibit "B", conveying the Real PropertyPurchased Assets other than Permitted Liens;
(vi) Execute, acknowledge and deliver a ▇▇▇▇ resolutions of sale, assignment and assumption ("▇▇▇▇ of Sale") in the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits stockholders or members and the ContractsBoard of Directors of each of the Sellers approving the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, certified by the appropriate officers or managers;
(vii) Deliver evidence with respect to each Seller, a long-form certificate of its authority good standing from the Secretary of State of the State of Delaware and from the Secretary of State of each other State in which such Seller is qualified to execute the Deed and the ▇▇▇▇ of Sale;do business as a foreign entity; and
(viii) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person";
(ix) Deliver an affidavit or certificate reasonably requested by the Title Company in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters"); and
(xi) Deliver such other certificates, instruments or documents as may be reasonably requested required pursuant to the provisions of this Agreement or otherwise necessary or appropriate to consummate the transactions contemplated by Purchaser or Title Company, including transfer tax affidavits and evidence of authority to sell the Property in accordance with this Agreement.
(b) At the Closing, the Purchaser shallwill deliver to the Sellers, each in form and substance, and executed and delivered in a manner, reasonably satisfactory to the Sellers:
(i) Deliver (A) an assumption of the Purchase Price to Assumed Liabilities, (B) such other instruments of assumption evidencing the Title Company Purchaser’s assumption of the Assumed Liabilities as the Sellers reasonably deems necessary and (all monies Purchaser is required to deliver shall be wired to the account designated C) such other documents and agreements as are contemplated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1this Agreement;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares Closing Payment in accordance with this Agreement Section 2.3; a duly executed counterpart of the Escrow Agreement, executed by the Purchaser and designating those persons authorized to execute and deliver all necessary documents at Closing;the Escrow Agent; and
(iii) Deliver (A) Certificates of Good Standing and Corporate Existencesuch other certificates, and (B) copies of any and all of the instruments or documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating required pursuant to the physical provisions of this Agreement or environmental condition of otherwise necessary or appropriate to consummate the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; andtransactions contemplated by this Agreement.
(c) At ClosingIt is understood that certain Purchased Assets may not be immediately transferable or assignable to the Purchaser, and the Purchaser and Seller shall execute and deliver a Closing Statement setting forth may in its sole discretion allow the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect Sellers to any adjustments based on estimates that are to be re-adjusted retain certain of such assets after Closing.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for (the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date“Non-Transferable Assets”), and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as this Agreement will not constitute an assignment of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordinglyNon-Transferable Assets. In such event, (i) the deposit(s) Sellers will use commercially reasonable efforts to obtain any consent or authorization which may be assigned required to transfer or assign the Non-Transferable Assets to the Purchaser who shall have rights or to have remove or eliminate any impediment preventing the deposit(s) released to it upon satisfaction transfer or assignment of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay Non-Transferable Assets to the Purchaser, in cash, (ii) the amount of any rents paid Sellers will grant to the Seller Purchaser full use and benefit of its interest in the Non-Transferable Assets to the extent permitted by the Tenantsterms of or applicable to such Non-Transferable Assets, for it being the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as intent of the Closing Date Parties that the Purchaser have the benefit of the Non-Transferable Assets as though it were the sole owner thereof, (hereinafter called iii) the "Delinquent Rents"). All rentals collected Sellers will take all actions necessary to preserve the value of the Non-Transferable Assets, (iv) the Sellers will not transfer or assign the Non-Transferable Assets to any Person other than the Purchaser or the Purchaser’s designees, (v) the Sellers will transfer or assign the Non-Transferable Assets to Purchaser at the earliest date, if any, on which such transfer or assignment can be effected and (vi) the Purchaser will be responsible for obligations relating to such Non-Transferable Assets arising or occurring on or after the Closing Date shall be allocated first as if they had been transferred or assigned to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by terms of this Agreement. Upon the request of the Purchaser, the Sellers will enforce, on behalf of the Purchaser to Seller. Once and at the Purchaser’s cost, any Delinquent Rents are in excess rights of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings the Sellers arising under or in connection with any Non-Transferable Asset. To the extent that the Purchaser is provided the benefits of any Assumed Contract, the Purchaser will perform the obligations arising, from and after the Closing, under such legal action. Seller shall retain Assumed Contract on behalf of the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase PriceSellers, except for any obligation under such Assumed Contract that constitutes a Retained Liability.
(ed) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant If Sellers fail to disclose any Material Contract or Minor Contract relating to the Leases Business and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before Purchaser becomes aware of such Material Contract or Minor Contract after the Closing Date relating (a “Missed Contract”), Purchaser will have the option, in its sole discretion, to the physical or environmental condition of the Property; assume such Missed Contract. If Purchaser elects in writing to assume a Missed Contract, subject to Section 2.5(c), (i) Sellers will promptly assign, transfer, convey and deliver such Missed Contract to Purchaser, (ii) Purchaser will assume the obligations under such Missed Contract assigned to Purchaser from and after the date of assignment to Purchaser pursuant to a special-purpose assignment and assumption agreement substantially similar in terms to those of the assignment and assumption agreement executed and delivered on the Closing Date (which special-purpose agreement the Parties will prepare, execute and deliver in good faith at the Tenant Notice Letters to the Tenants; time of such transfer) and (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected Missed Contract will be treated as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to an Assumed Contract under this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the ClosingAgreement.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract
Closing Matters. 4.1 In this Agreement, the "Closing Date" means the date mutually agreed to by the parties hereto within ten (10) days from the Approval Date, as hereinafter defined, upon which the Vendor and the Purchaser shall complete the transactions contemplated by this Agreement and provide the documents herein described to complete the transactions (the "Closing").
4.2 Upon the Closing Date of this Agreement, the following events shall occur:
(a) At Closing, Seller shall:
(i) cause the Title Company will assign and transfer to modify (by interlineation or otherwise) the Commitment Vendor all of its right and beneficial interest in and to reflect the Permitted Exceptions, thereby indicating the commitment of the Title Company to issue to Purchaser the Title PolicyRetained Assets;
(iib) To the extent available Vendor shall deliver to the Purchaser the share certificates representing the Shares duly endorsed for transfer, and in Seller's possession or controlall corporate records, deliver originals registers and documents of the Leases Company, including the minute book and all Contracts affecting corporate seal of the Real Property either at Closing or by making same available at the PropertyCompany;
(iiic) Deliver possession of the Property, subject Purchaser shall deliver to the Permitted Exceptions and Vendor a certified cheque or bank draft payable to the rights of parties Vendor in possessionthe amount specified in Subsection 1.1(c);
(ivd) To the extent available Company and in Seller's possessionthe Vendor, deliver copies of all necessary permits issued by appropriate governmental authorities and utility companies relating to the Property;
(v) Executeor its order, acknowledge shall execute and deliver a special warranty deed ("Deed") the Declaration of Trust and Agency Agreement in the form attached hereto as Exhibit "B", conveying the Real PropertySchedule “C”;
(vie) Execute, acknowledge the parties shall execute and deliver written confirmation of the termination of the Fuwan Trust Agreements;
(f) the Vendor shall deliver to the Purchaser a certificate of the Vendor’s Chief Executive Officer confirming the amount of the Unallocated Changkeng ▇▇ ▇▇▇▇ of sale, assignment and assumption ("▇▇▇▇ of Sale") in Balance as at the form attached hereto as Exhibit "C", conveying without warranty the Personalty and assigning Seller's interest in the Leases, Intangible Property, Security Deposits and the ContractsClosing Date;
(viig) Deliver evidence of its authority the Vendor shall deliver to execute the Deed and Purchaser the ▇▇▇▇ of Saleofficer’s certificate to be given under Section 6.1(c);
(viiih) Deliver a non-foreign entity certification in the form attached hereto as Exhibit "D", certifying, in compliance with Purchaser shall deliver to the Vendor the officer’s certificate to be given under Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder that Seller is not a "foreign person"6.2(c);
(ixi) Deliver the Purchaser shall deliver to the Vendor an affidavit or certificate reasonably requested by acknowledgement and confirmation that the Title Company Purchase Price Advance and Vendor Debt have been repaid and settled in connection with its issuance of the Title Policy;
(x) Deliver a form notice letter in the form attached hereto as "Exhibit E", to be delivered to each Tenant acknowledging that Seller has conveyed its interest in the Leases and the Security Deposits to Purchaser ("Tenant Notice Letters")full; and
(xij) Deliver such other documents as may be reasonably requested by the Purchaser or Title Company, including transfer tax affidavits shall return to the Vendor the Vendor’s Minco Silver Shares and evidence stock powers of authority to sell the Property attorney delivered in accordance connection with this Agreement.
(b) At Closing, Purchaser shall:
(i) Deliver the Purchase Price to the Title Company (all monies Purchaser is required to deliver shall be wired to the account designated by Title Company and available for disbursement by wire transfer to Seller no later than 1:00 p.m., Dallas, Texas time, on the Closing Date) or to Seller as provided in Section 2.1;
(ii) Execute and deliver such documents as may be reasonably required by Seller or Title Company, including but not limited to, a certified copy of a resolution of the Board of Directors of Purchaser (if a corporation) authorizing Purchaser to consummate the purchase of the Property and to issue the Shares in accordance with this Agreement and designating those persons authorized to execute and deliver all necessary documents at Closing;
(iii) Deliver (A) Certificates of Good Standing and Corporate Existence, and (B) copies of any and all of the documents evidencing the corporate structure of Purchaser which Seller reasonably may request;
(iv) Execute and deliver the ▇▇▇▇ of Sale, assuming the obligations under the Leases and the Contracts from and after Closing and the obligation, whether arising before or after Closing, relating to the physical or environmental condition of the Property;
(v) Execute and deliver the Tenant Notice Letters to each Tenant acknowledging that Purchaser has received and is responsible for the Security Deposits; and
(c) At Closing, Purchaser and Seller shall execute and deliver a Closing Statement setting forth the Purchase Price and all prorations, adjustments and credits thereto and, if necessary, a post-closing agreement with respect to any adjustments based on estimates that are to be re-adjusted after ClosingAdvance.
(d) At Closing, the following items shall be prorated as of the Closing Date with all items of income and expense for the Property being borne by Purchaser for the Closing Date: rents; fees and assessments; prepaid expenses and obligations under Contracts; accrued expenses; and real and personal and other ad valorem taxes ("Ad Valorem Taxes") for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing are not known or. cannot be reasonably estimated, taxes shall be adjusted based on taxes for the year prior to Closing. After the Ad Valorem Taxes for the year of Closing are known, adjustments, if needed, will be made between the parties. Any additional Ad Valorem Taxes relating to the year of Closing or prior years arising out of a change in the use of the Real Property or a change in ownership shall be paid by Purchaser' when assessed. The provisions of this Section 7.2(d)(i) shall survive Closing.
(ii) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Purchaser shall further ensure that all utility meters are read as of the Closing Date. Seller shall pay all utilities up to and including the Closing Date and all utilities thereafter shall be paid for by Purchaser. Seller shall be entitled to recover any and all deposits held by any utility company as of the date of Closing. To the extent Purchaser fails to provide, where required, deposits to any such utility company(s) so as to prevent the timely release of Seller's deposit(s) by the utility company(s) on the Closing Date, the amount of such deposit(s) shall be credited to Seller and the Purchase Price shall be adjusted accordingly. In such event, the deposit(s) will be assigned to Purchaser who shall have rights to have the deposit(s) released to it upon satisfaction of the conditions imposed by the utility company.
(iii) Seller shall at Closing pay to the Purchaser, in cash, the amount of any rents paid to the Seller by the Tenants, for the Closing Date and periods subsequent to the Closing Date. No proration shall be made for rents delinquent as of the Closing Date (hereinafter called the "Delinquent Rents"). All rentals collected on or after the Closing Date shall be allocated first to the most recent month for which rental is due by the Tenant and then to Delinquent Rents. Any Delinquent Rents collected by Purchaser after Closing in accordance with the foregoing allocation shall be forthwith paid by Purchaser to Seller. Once any Delinquent Rents are in excess of ninety (90) days past due, all rights to pursue collection of such amounts shall vest solely in Seller, provided, however, that Seller shall not be entitled to pursue eviction proceedings in connection with any such legal action. Seller shall retain the Security Deposits and the amount thereof as reflected on the Rent Roll shall be credited to the Purchase Price.
(e) Purchaser agrees to: (i) assume and perform all of the covenants of Seller and Seller's predecessor in title pursuant to the Leases and Contracts, which are performable subsequent to the Closing Date and all obligations, whether arising before or after the Closing Date relating to the physical or environmental condition of the Property; (ii) deliver the Tenant Notice Letters to the Tenants; (iii) on or before ten (10) days following the Closing Date, deliver to Seller a certification to the effect that the Tenant Notice Utters have been delivered to all of the Tenants; and (iv) correct on behalf of Seller all rents and other charges which become due prior to the Closing Date pursuant to the Leases but which Seller has not collected as of the Closing Date and deliver such sums collected to Seller promptly thereafter. Purchaser indemnifies and holds Seller harmless from and against any and all claims, costs and expenses (including reasonable attorneys' fees) asserted against or incurred by Seller and arising out of the failure of Purchaser to perform its obligations pursuant to this Section 7.2(e). Notwithstanding any provision of this Agreement to the contrary but subject to Section 7.2(d)(iii), Seller shall be entitled to attempt to collect all rents and other charges which became due prior to the Closing Date from any of the Tenants. The provisions of this Section 7.2(e) shall survive the Closing.
(f) The agreements set forth in subparagraphs (d) and (e) of this Section 7.2 shall survive the Closing and be enforceable until fully performed.
Appears in 1 contract