Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties: (i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent; (ii) the Escrow Agreement, duly executed by Stockholder Representative; (iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person; (iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business; (v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties; (vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate; (vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate; (viii) the Closing Certificate, in the manner contemplated in Section 1.17(a); (ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e); (x) those consents or approvals identified on Schedule 1.19(a)(x); (xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party; (xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder; (xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D; (xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties; (xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement; (xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request; (xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control; (xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control); (xix) any landlord consents required pursuant to the terms of the Leases; (xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required; (xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents; (xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2); (xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F; (xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and (xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing. (b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent: (i) the Escrow Agreement, duly executed by Parent and Operator; (ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14; (iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and (iv) any other items or certificates described in Section 5.3 below. (c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Merger Agreement (Vici Properties Inc.), Merger Agreement (Penn National Gaming Inc)
Deliveries at Closing. (i) At Closing Buyer shall (a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(i) (A) a true, complete and correct copy deliver payment of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”)Purchase Price; and (Bb) true, complete execute and correct copies of deliver the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;Registration Rights Agreement.
(ii) At Closing Seller shall deliver to Buyer: (a) certificates for the Escrow Series A Preferred Stock in the name of the Buyer and (b) execute and deliver the Registration Rights Agreement, duly executed by Stockholder Representative;.
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the At Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior Buyer shall have received an opinion addressed to the ClosingEquity Services, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation Ltd. and the Agreement Among Investors (ii) that there have been no amendments to such Charter DocumentsBuyer, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. from Camhy ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ AgreementLLP, each stating the following:
(a) Seller has been duly incorporated and is validly existing and in form good standing under the laws of the State of Delaware, with full corporate power and substance reasonably satisfactory authority to Buyer Partiesown, lease and operate its properties and to conduct its business as currently conducted;
(xvb) evidenceThe Shares shall be duly authorized and validly issued and when issued and delivered, each of them shall be enforceable in form accordance with their terms (subject to general principles of equity and substance reasonably satisfactory bankruptcy, fraudulent conveyance, preference and other laws affecting creditors' rights generally). The shares of Common Stock, when issued and delivered upon conversion of the Series A Preferred Stock, will be duly and validly authorized and issued, fully paid and nonassessable, free from all encumbrances and restrictions other than restrictions on transfer imposed by applicable securities laws and/or this Agreement, and will not subject the holders thereof to Buyer Parties, that Margaritaville has confirmed that no event personal liability by reason of default exists under the Margaritaville Agreementbeing such holders;
(xvic) The Agreement has been duly authorized, validly executed affidavits for all Real Property substantially and delivered on behalf of Seller and is a valid and binding agreement of Seller enforceable in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the form enforcement of Exhibit E attached heretocreditors' rights generally, and such Seller has full power and authority to execute and deliver the Agreement and the other affidavits relating agreements and documents contemplated hereby and to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofperform its obligations thereunder; and
(xxvd) the fixed asset ledger The execution and delivery of the Companies as Agreement, the issuance of the last day Shares and the shares of Common Stock issuable upon conversion of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) Series A Preferred Stock and the Operator Closing Merger Consideration (in the case consummation of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the executionby Seller, delivery and performance will not conflict with or result
in a breach of this Agreement and each Transaction Document to which such Buyer Party is or a party; and
(iv) default under any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger terms or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyanceprovisions of, assignment Seller's certificate of incorporation or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingBy-laws.
Appears in 2 contracts
Sources: Investor Subscription Agreement (Innopet Brands Corp), Investor Subscription Agreement (Innopet Brands Corp)
Deliveries at Closing. (a) At or prior to To effect the transactions contemplated hereby, the Selling Parties shall, at the Closing, HoldCo shall execute and/or deliver, as applicabledeliver to Buyer, or cause to be executed and/or delivered, delivered to Buyer Parties:(unless previously delivered):
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate an instrument of the Secretary of each Company, dated the Closing Date, in form assignment and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, assumption in substantially the form attached hereto as Exhibit DA-1 conveying to Azur Inc. the owned tangible personal property included in the Inc. Purchased Assets and assumption by Azur Inc. of the Inc. Assumed Liabilities (the “Inc Assignment and Assumption Agreement”), and (y) an instrument of assignment and assumption in substantially the form attached hereto as Exhibit A-2 conveying to Azur Limited the owned tangible personal property included in the Limited Purchased Assets and assumption by Azur Limited of the Limited Assumed Liabilities (the “Limited Assignment and Assumption Agreement”), each duly executed by the Selling Parties (collectively, the “Assignment and Assumption Agreements”);
(xivii) documentary evidence subject to Section 3.3 hereof, (x) an assignment and assumption document in substantially the form attached hereto as Exhibit B-1 assigning the Inc. Business Contracts to Azur Inc. (the “Inc Assignment of Contracts”), and (y) an assignment and assumption document in substantially the form attached hereto as Exhibit B-2 assigning the Limited Business Contracts to Azur Limited (the “Limited Assignment of Contracts”, duly executed by the Selling Parties (collectively, the “Assignments of Contracts”);
(iii) an assignment of the termination Intellectual Property in substantially the form attached hereto as Exhibit C (the “Assignment of Owned Intellectual Property”), duly executed by the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Selling Parties;
(xviv) evidencean assignment and assumption of lease in substantially the form attached hereto as Exhibit D (the “Lease Assignment”), in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreementduly executed by Seller;
(xviv) counterparts to any other Ancillary Agreements, duly executed affidavits for all Real Property substantially in the form of Exhibit E attached heretoby Parent or Seller or other Person, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably requestapplicable;
(xviivi) originals or copies a certificate from each of all Leases Seller and all amendments thereto and other supplements relating thereto and copies of correspondence relating theretoParent, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms dated as of the Leases;
(xx) the Customer Database; providedClosing Date, however, stating that physical delivery of the Customer Database separate from the Companies information systems shall such Person is not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not “foreign persons person” within the meaning Treasury Regulations of Section 1.1445-2(b)(2);
(xxiii1445(b)(2) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofCode; and
(xxvvii) the fixed asset ledger of certificates and other documents required to be delivered at Closing as described in Article VIII, duly executed by the Companies Selling Parties, as of the last day of the most recent calendar month ending at least 30 days prior to the Closingapplicable.
(b) At To effect the transactions contemplated hereby, Buyer shall, at the Closing, Parent and/or Operator, as applicable, has delivereddeliver to the Selling Parties, or caused cause to be delivered to the Selling Parties (unless previously delivered, to Stockholder Representative or the Exchange Agent:):
(i) an amount in cash equal to the Escrow Inc. Up-Front Cash Purchase Price, payable by Azur Inc., and an amount in cash equal to the Limited Up-Front Cash Purchase Price payable by Azur Limited, each by wire transfer of immediately available funds to an account designated in writing by Parent;
(ii) a counterpart to the Inc Assignment and Assumption Agreement, duly executed by Parent Azur Inc., and Operator;
(ii) a counterpart to the Parent Closing Merger Consideration (in the case of Parent) Limited Assignment and the Operator Closing Merger Consideration (in the case of Operator)Assumption, in each case in accordance with Section 1.14duly executed by Azur Limited;
(iii) a certificate counterpart to the Inc Assignment of Contracts, duly executed by Azur Inc., and a counterpart to the Secretary Limited Assignment of each Buyer PartyContracts, dated duly executed by Azur Limited;
(iv) a counterpart to the Closing DateAssignment of Owned Intellectual Property, in form duly executed by Azur Limited;
(v) a counterpart to the Assignment and substance reasonably satisfactory Assumption of Lease duly executed by Azur Inc.;
(vi) counterparts to HoldCoany other Ancillary Agreements, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated duly executed by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyBuyer; and
(ivvii) any the certificates and other items or certificates documents required to be delivered at the Closing as described in Section 5.3 belowArticle VII, duly executed by Buyer.
(c) Each Party and its Representatives shall take (or cause To the extent that a form of any document to be taken) all delivered hereunder is not attached as an Exhibit hereto, such further actionsdocuments shall be in form and substance, do (or cause and shall be executed and delivered in a manner, reasonably satisfactory to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingparties.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Azur Pharma Public LTD Co), Asset Purchase Agreement (Avanir Pharmaceuticals)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Company shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesPurchaser:
(ia) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval all pay-off letters duly executed by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby all Repaid Indebtedness (such documents collectively, the “Written ConsentPay-Off Letters”); , indicating (i) the amounts required in order to pay in full all such Repaid Indebtedness (such amounts collectively, the “Pay-Off Amount”) and (Bii) truethat upon payment of the Pay-Off Amount, complete all outstanding obligations of the Company or its Subsidiary, as applicable, arising under or related to such Repaid Indebtedness shall be repaid and correct extinguished in full and that, if applicable, upon receipt of such payment, such Person shall release its Liens and other security interests in, and agree to deliver UCC-3 termination statements and such other documents or endorsements necessary to release of record its Liens and other security interest in, and the same shall be terminated and of no further force and effect, the assets and properties of the Company and its Subsidiary;
(b) certification from the Company that none of the equity securities of the Company (including the Common Shares and the Stock Options) is a U.S. real property interest, and the notice to accompany such statement, specified in Treasury Regulations §1.1445-2(c)(3)(i) and §1.897-2(h);
(c) a certificate, dated not earlier than two (2) business days prior to the Closing Date, of the Secretary of State or comparable Governmental Authority of the state of organization of the respective Acquired Company stating that such Acquired Company is in good standing or has comparable active status in such jurisdiction;
(d) copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentoriginal Certificates;
(iie) copies of the Escrow AgreementOption Surrender Agreements in a form reasonably satisfactory to Purchaser, duly executed by Stockholder Representativethe Company and each Optionholder;
(iiif) certificates a copy of good standingthe executed Stockholder Written Consent, which Stockholder Written Consent is in full force and effect and constitutes all the resolutions adopted by the Securityholders in connection with the Transactions;
(g) all approvals, consents and waivers that are listed on Schedule 3.02 (excluding approvals with respect to any Repaid Indebtedness) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Purchaser at or prior to the Closing;
(h) a certificate executed by an officer of the Company, in form and substance reasonably acceptable to Purchaser, dated as of the Closing Date Date, certifying that (or, as necessary, A) attached thereto are true and complete copies of (1) all resolutions adopted by the most recent practicable date), for the Companies in their respective jurisdiction(s) Board of organization and from each Directors of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each the other agreements contemplated hereby and the consummation of the Transactions and (2) the Stockholder Written Consent approving the Transaction Document to which and adopting this Agreement, and (B) all such Company is a party;resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby; and
(xiii) evidencea certificate executed by an officer of the Company, in form and substance reasonably satisfactory acceptable to Buyer PartiesPurchaser, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies dated as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, stating that the conditions to closing specified in form Sections 2.01(a) and substance reasonably satisfactory to HoldCo, certifying as to: (ib) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowsatisfied.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (CNL Strategic Capital, LLC)
Deliveries at Closing. (a) At Deliveries by the Company. On or prior to the ClosingClosing Date, HoldCo the Company shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
Parent the following: (i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, certificate dated as of the Closing Date (orDate, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of duly executed by the Secretary of each the Company, dated given by him or her on behalf of the Closing Date, in form and substance reasonably satisfactory to Buyer PartiesCompany, certifying as to: to (iA) an attached copy of the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are ’s bylaws as in full force and effect as of the Closing Agreement Date and stating that such bylaws have not been amended, modified, revoked or rescinded since the Agreement Date, (ivB) an attached copy of the Company’s Amended and Restated Certificate of Incorporation as in effect as of the Agreement Date (the “COI”) and stating that such certificate has not been amended, modified, revoked or rescinded, (C) an attached copy of the resolutions of the board of directors of each the Company authorizing the transactions contemplated by this Agreement and approving the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminatedof, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
by, this Agreement, and stating that such resolutions have not been amended, modified, revoked or rescinded, and (xxiiD) a FIRPTA Statement from each Stockholder, or the sole beneficial owner an attached copy of the Written Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposesConsent, but only in the case of Stockholders orand stating that such resolutions have not been amended, in the case of Stockholders that are disregarded entitiesmodified, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (revoked or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofrescinded; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated State of the State of Delaware as to the good standing of the Company as of a date not more than five (5) Business Days prior to the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and ; (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Escrow Agreement and Paying Agent Agreement, duly executed by the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyRepresentative; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actionsthe Assignment Deeds, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested duly executed by the other Parties in order to effectuate the consummation Company; (v) Execution of the Merger or Written Stockholder Consent (as defined below) by all Stockholders; (vi) the transactions contemplated Allocation Schedule, certified as to accuracy and completeness on behalf of the Company by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.Chief Executive Officer;
Appears in 2 contracts
Sources: Merger Agreement (Oddity Tech LTD), Merger Agreement (Oddity Tech LTD)
Deliveries at Closing. (ai) At or prior to the Closing, HoldCo shall execute and/or deliverSellers will deliver to U.S. Buyer or Australia Buyer, as applicable, the following documents and other items, duly executed by Sellers, the Tiwest Joint Venture Participants, and in the case of Section 2(g)(i)(N) and 2(g)(i)(T), any other Person, in each case as applicable and in form and substance reasonably acceptable to U.S. Buyer or cause to be executed and/or deliveredAustralia Buyer, to Buyer Partiesas applicable:
(i) (A) a truebills of sale substantially in the form of Exhibits E-1 and E-2 attached hereto (the “Bills of Sale”);
(B) assignment and assumption agreements substantially in the form of Exhibits F-1 and F-2 attached hereto (the “Assignment and Assumption Agreements”);
(C) instruments of assignment substantially in the forms of Exhibit G, complete Exhibit H and correct copy of the written consent Exhibit I attached hereto for each patent, registered trademark and registered copyright, respectively, transferred or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger assigned hereby and the transactions contemplated hereby for each pending application therefor (collectively, the “Written ConsentIntellectual Property Assignments”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ixD) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e)Services Agreement;
(xE) those consents or approvals identified on Schedule 1.19(a)(x)the Deposits and Similar Amounts, the Acquired Cash and the Pre-Funded Uncleared Disbursement Amounts in a manner reasonably acceptable to Buyers;
(xiF) a certificate certified copy of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation Bidding Procedures Order and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a partySale Order;
(xiiG) evidencewith respect to each parcel of Owned Real Property (other than the Owned Real Property located in Western Australia), in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director special warranty or officer against each Company) of the directors and officers of each of the Companies, trustee’s deed in substantially the form attached hereto as Exhibit DL, with such changes thereto as may be necessary to conform such deed to the requirements of the relevant jurisdiction;
(xivH) documentary evidence with respect to each parcel of Owned Real Property located in Western Australia a transfer of land form in favor of Australia Buyer substantially in the form attached hereto as Exhibit Q;
(I) with respect to each Lease of real property registered in Western Australia, a transfer of registered lease form in favor of Australia Buyer substantially in the form attached hereto as Exhibit R;
(J) transfers in registrable form in accordance with the Western Australian Mining Act 1978 (WA), transferring the interests in the mining tenements comprising the Acquired Tiwest Joint Venture Interests in favor of Australia Buyer;
(K) a certificate signed by an authorized officer of Tronox Incorporated to the effect that each of the termination conditions specified in Section 7(a)(i) and Section 7(a)(ii) is satisfied in all respects;
(L) with respect to each U.S. Seller, a non-foreign affidavit dated as of the Casino Management Agreement Closing Date, sworn under penalty of perjury and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory required under Treasury Regulations issued pursuant to Buyer Parties;
(xv) evidenceSection 1445 of the IRC stating that no U.S. Seller is a “foreign person” as defined in Section 1445 of the IRC, and with respect to each Non-U.S. Seller, a statement dated as of the Closing Date, sworn under penalty of perjury, and in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists required under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section Sections 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent2(c)(3) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.1.897-2
Appears in 2 contracts
Sources: Asset and Equity Purchase Agreement (Tronox Inc), Asset and Equity Purchase Agreement (Huntsman International LLC)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Company shall execute and/or deliver, as applicable, deliver or cause to be executed and/or delivered, to Buyer Parties:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreementto Sellers, the Merger and Purchase Price, by wire transfer of immediately available funds in United States dollars in accordance with the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentwire transfer instructions set forth on Schedule I hereto;
(ii) to Matlin Partners (Delaware), a copy of the Escrow AgreementManagement Letter, duly executed and delivered by Stockholder Representativethe Company;
(iii) certificates to each Seller, one (1) stock certificate representing that number of good standing, dated as of Common Shares represented by the Closing Date (or, as necessary, the most recent practicable dateRetained Share Certificate issued to such Seller in accordance with Section 5.12(b), in proper form for the Companies transfer without any stock legend or other similar notation as provided in their respective jurisdiction(sSection 5.12(ii) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Personhereof;
(iv) payoff letters the Company shall pay to the MatlinPatterson Parties, or other evidence reimburse the MatlinPatterson Parties for, as the case may be, the reasonable fees and disbursements of discharge in form and substance reasonably satisfactory to Buyer one law firm representing the MatlinPatterson Parties incurred solely with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Share Purchase in accordance with Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date 8.1 hereof; and
(xxvv) to the fixed asset ledger of MatlinPatterson Parties, such other documents and instruments required to be delivered by the Companies as of the last day of the most recent calendar month ending Company at least 30 days or prior to the ClosingClosing Date pursuant to this Agreement.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) each Seller shall deliver or cause to be delivered to the Escrow AgreementCompany (A) the Retained Share Certificate and the Seller Share Certificate issued to it in accordance with Section 5.12(b) hereof, duly executed by Parent as provided in Section 5.12(i)(A) hereof and Operator(B) for such Seller Share Certificate, a stock power effectively endorsed to the Company or in blank, as provided in Section 5.12(i)(B) hereof;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer MatlinPatterson Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (deliver or cause to be taken) all delivered to the Company such further actions, do (or cause other documents and instruments required to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested delivered by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, it at or following prior to the ClosingClosing Date pursuant to this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (NRG Energy, Inc.), Stock Purchase Agreement (NRG Energy, Inc.)
Deliveries at Closing. (a) Closing Deliveries by the Elan Companies. At or prior to the Closing, HoldCo the Elan Companies shall execute and/or deliver, as applicable, deliver or cause to be executed and/or delivered, delivered to Buyer Partiesthe Acquirors:
(i) (A) a true, complete and correct copy an original of each of the written consent or Related Agreements (other agreement from than the StockholdersPharma Marketing Settlement Agreement) and the Wyeth/Elan Agreements (other than the Distribution and Co-Promotion Agreement and the Bulk Supply Agreement), representing approval executed by the holders Elan Companies party thereto, and copies of at least 98% of all documents required to be delivered by the outstanding shares of capital stock of HoldCo of this Agreement, Elan Companies pursuant to the Merger Related Agreements and by Wyeth or its Affiliates pursuant to the Wyeth/Elan Agreements (other than the Distribution and Co-Promotion Agreement and the transactions contemplated hereby (collectively, the “Written Consent”Bulk Supply Agreement); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) a copy of each of the Escrow AgreementWyeth/King Agreements, duly each executed by Stockholder RepresentativeWyeth or its Affiliates party thereto, and copies of all documents required to be delivered by Wyeth or such Affiliates pursuant to the Wyeth/King Agreements;
(iii) certificates an unredacted, fully executed copy of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonAssumed Contracts;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessSkelaxin Product Registrations;
(v) documentary evidence assignment and assumption agreements and/or subcontracts or other instruments of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrancestransfer, as applicable (the “Closing Liens”)applicable, in form and substance reasonably satisfactory acceptable to Buyer Partiesthe Elan Companies and JPI, assigning to JPI all rights of the Elan Companies in and to the Assumed Contracts;
(vi) at least one Business Day prior copies of all Elan Governmental Consents set forth on Schedule 6.03(a) of the Elan Disclosure Schedule (to the Closingextent available in writing, and to the Closing Transaction Expenses Certificateextent not available in writing, a schedule setting forth in reasonable detail such Elan Governmental Consents shall be provided by the Elan Companies) and all Elan Third Party Consents set forth on Schedule 6.03(b) of the Elan Disclosure Schedule (to the extent received);
(vii) at least one Business Day prior to executed releases of any Encumbrances that are identified on Schedule 5.02(a)(vii) of the Closing, the Closing Indebtedness Certificate;Elan Disclosure Schedule; and
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate an original of the Secretary of each CompanyJoint Litigation and Prosecution Agreement, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated executed by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Elan Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case documents required to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated delivered by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only Elan Companies in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingconnection therewith.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (King Pharmaceuticals Inc), Asset Purchase Agreement (Elan Corp PLC)
Deliveries at Closing. At the Closing:
(a) At or prior IPoint shall deliver to the ClosingShareholders certificates registered in their individual names in accordance with the allocation set forth on Schedule I, HoldCo representing the New Shares;
(b) IPoint shall execute and/or deliverdeliver to the Warrant Holder the New Warrant;
(c) IPoint shall deliver to each Shareholder a copy of the resolutions of IPoint's board of directors, as applicablecertified by the Secretary of IPoint, or cause authorizing this Agreement and the transactions contemplated hereby;
(d) the Shareholders and IPoint-Israel shall deliver to be executed and/or delivered, to Buyer PartiesIPoint:
(i) certificates evidencing all of the Shares; and
(Aii) a true, complete and correct copy of the written consent or other agreement from the Stockholdersresolutions of IPoint-Israel's board of directors and shareholders, representing approval certified by the holders Secretary of at least 98% of the outstanding shares of capital stock of HoldCo of IPoint-Israel, authorizing this Agreement, the Merger Agreement and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;hereby.
(iie) The Warrant Holder shall deliver to IPoint the Escrow Agreement, duly executed by Stockholder Representative;Warrant.
(iiif) certificates of good standingIPoint, dated as of the Closing Date (orIPoint-Israel, as necessary, the most recent practicable date), for the Companies Cornell and Neomedia shall enter into an assignment agreement to IPoint in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
Schedule IV (xivthe "Assignment Agreement") documentary evidence in respect of certain obligations and benefits set forth under the termination of documents pertaining to the Casino Management Agreement Cornell Investment, the Neomeida Investment and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ AgreementSEDA, each in form which shall be consented to by IPoint. Cornell and substance reasonably satisfactory Neomedia hereby agree to Buyer Parties;
(xv) evidencemodify the documents pertaining to the Cornell Investment, in form the Neomedia Investment and substance reasonably satisfactory the SEDA to Buyer Parties, that Margaritaville has confirmed that no event of default exists be assigned under the Margaritaville Agreement;
Assignment Agreement (xvimainly the various Registration Rights Agreements) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate change and extend the consummation of various timing for filing the Merger Forms S-1 or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form SB-2 and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingmaking them effective.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Share Exchange Agreement (iPOINT USA CORP), Share Exchange Agreement (iPOINT USA CORP)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Contributors shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Partiesthe following documents, each properly executed and dated:
(i) Certificates representing any Contributed Equity Interests (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares extent such Contributed Equity Interests are certificated), together with any other appropriate instruments of capital stock of HoldCo held transfer to convey the same to Buyer, duly executed by the Stockholders that executed the Written Consenteach Contributor;
(ii) compensation arrangements (the Escrow Agreement“Compensation Arrangements”) by and between Buyer (or one or more of its Affiliates) and the persons set forth on Schedule 2.2(a)(ii), duly executed by Stockholder Representativesuch persons, in form and substance satisfactory to Buyer;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization written resignations and releases from each of the other states in which any managers and officers of the Companies are qualified to do business Company as a foreign Persondesignated by ▇▇▇▇▇, in each case in his or her capacity as such;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness copies of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth Consents identified on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”2.2(a)(iv), in form and substance reasonably satisfactory to Buyer PartiesBuyer;
(v) a properly completed and executed IRS Form W-9 from each Contributor and the Company;
(vi) at least one Business Day prior evidence reasonably acceptable to Buyer of the Closing, termination of each of the Closing Transaction Expenses Certificateagreements described on Schedule 2.2(a)(vi);
(vii) at least one Business Day prior to the Closingextent not held at the principal office of the Company or stored electronically on a cloud-based storage system, all minute books, equity ledgers, equity transfer books, company seals, books of account, Contracts, Tax Returns and other Records of the Closing Indebtedness CertificateCompany;
(viii) good standing or similar certificates for the Closing CertificateCompany from the Secretary of State of the state in which the Company was formed or organized and from the appropriate state authorities in each jurisdiction in which the Company is qualified to do business, in each dated not more than ten (10) days prior to the manner contemplated in Section 1.17(a)Closing;
(ix) limited power of attorney in favor of the Consideration SpreadsheetREIT to the Buyer LP Agreement, in duly executed by each Contributor (the manner contemplated in Section 1.14(e“Powers of Attorney”);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate an assignment agreement, duly executed by each equityholder of the Secretary General Partner, assigning all of each Company, dated the Closing Dateissued and outstanding equity interests of the General Partner to Buyer (or its designee) in accordance with the Side Letter and the Buyer LP Agreement, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party“GP Assignment Agreement”);
(xiixi) evidencea registration rights agreement, duly executed by each Contributor, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder(the “Registration Rights Agreement”);
(xiiixii) resignations such other documents and instruments as may be reasonably requested by ▇▇▇▇▇, each in form and substance satisfactory to Buyer, to consummate the transactions contemplated by this Agreement or any other Transaction Document.
(which b) At the Closing, Buyer shall include a release of all claims deliver, or cause to be delivered, to the Contributors Representative the following documents, each properly executed and dated:
(i) the Compensation Arrangements, duly executed by the applicable director ▇▇▇▇▇ or officer against each Company) of the directors and officers of each of the Companiesits Affiliate(s), in substantially the form attached hereto as Exhibit Dapplicable;
(xivii) documentary evidence the Powers of Attorney, duly executed by ▇▇▇▇▇;
(iii) the termination of GP Assignment Agreement, duly executed by ▇▇▇▇▇;
(iv) the Casino Management Agreement Registration Rights Agreement, duly executed by the REIT;
(v) the OP Units and Cash Component to the St. Contributors, as contemplated by Section 1.4 and in accordance with the Allocation Schedule;
(vi) the ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Agreement▇▇▇▇, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) duly executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof▇▇▇▇▇; and
(xxvvii) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingEnterprise Guaranty, duly executed by ▇▇▇▇▇.
(bc) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or Buyer shall make the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions payments contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below1.4.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Contribution Agreement (Vinebrook Homes Trust, Inc.), Side Letter to Contribution Agreement (Vinebrook Homes Trust, Inc.)
Deliveries at Closing. (a) At or prior Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, HoldCo Ardagh shall execute and/or deliver, as applicable, or cause deliver to be executed and/or delivered, to Buyer PartiesGHV:
(i) a counterpart (Aor counterparts) a true, complete and correct copy to each of the written consent Related Agreements to be entered into by AMPSA, Ardagh or other agreement from the Stockholdersany of their respective Subsidiaries, representing approval duly executed by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this AgreementAMPSA, the Merger Ardagh and the transactions contemplated hereby (collectivelytheir respective Subsidiaries, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentas applicable;
(ii) evidence of the Escrow Agreementconsummation of the Debt Financing, duly together with copies of documentation executed by Stockholder Representative;
the lenders or other creditors (iiior their duly authorized agent or representative, on their behalf) certificates of good standing, dated as of the Closing Date Ardagh Existing Indebtedness, evidencing (or, as necessary, A) the most recent practicable date), for the Companies in their respective jurisdiction(s) release of organization and from each all guarantees of the Ardagh Existing Indebtedness by the AMP Entities and the termination of all other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form obligations and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to AMP Entities in respect thereof and (B) the operation release of all liens, Encumbrances and other security interests granted by the AMP Entities, or otherwise on the assets of the Casino in AMP Entities or the Ordinary Course of AMP Business;
(v) documentary evidence of , securing the release and discharge of any Ardagh Existing Indebtedness or guarantees or Liens (includingother obligations or liabilities with respect thereto, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)in each case, in form and substance reasonably satisfactory acceptable to Buyer PartiesGHV;
(viiii) a copy of the amended articles of association of AMPSA in the form attached as Exhibit G; and
(iv) such other documents or certificates as shall be reasonably determined by GHV and its counsel to be required in order to consummate the Transactions.
(b) Upon the terms and subject to the conditions set forth in this Agreement, at least one Business Day prior to the Closing, GHV shall deliver to Ardagh:
(i) a counterpart (or counterparts) to each of the Closing Transaction Expenses CertificateRelated Agreements to be entered into by GHV or the Sponsor, duly executed by GHV and the Sponsor, as applicable;
(viiii) at least one Business Day prior to a copy of the ClosingCertificate of Merger, the Closing Indebtedness Certificateduly executed by GHV;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the CompaniesGHV, in substantially the form attached hereto to be effective as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached heretoof, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating theretoconditioned upon, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any such other items documents or certificates described in Section 5.3 below.
(c) Each Party as shall be reasonably determined by Ardagh and its Representatives shall take (or cause counsel to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties required in order to effectuate consummate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingTransactions.
Appears in 2 contracts
Sources: Business Combination Agreement (Ardagh Metal Packaging S.A.), Business Combination Agreement (Gores Holdings v Inc.)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo (i) with respect to the items set forth in clauses (i), (ii), (iii), (iv), (v) and (vii) below, the Independent Fiduciary shall execute and/or deliveror shall direct the Plan Trustee, as applicable, or cause to be executed and/or delivereddeliver to the Insurer, with a copy to Buyer Partiesthe Company and (ii) with respect to the items set forth in clauses (vi) and (viii) below, the Company shall deliver to the Insurer:
(i) (A) a truecertificate, complete and correct copy dated as of the written consent or other agreement from the StockholdersClosing Date, representing approval signed by the holders of at least 98% an officer of the outstanding shares of capital stock of HoldCo of this Agreement, Independent Fiduciary certifying as to the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies satisfaction of the executed Letters of Transmittal with respect conditions specified in Section 8.3(a) and Section 8.3(b) each as to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentIndependent Fiduciary;
(ii) the Escrow AgreementBill ▇▇ Sale (including all schedules thereto), duly executed by Stockholder Representativethe Plan Trustee;
(iii) certificates [ *** ] Transfer Documentation and [ *** ] Transfer Documentation, duly executed by the Plan Trustee;
(iv) a written acknowledgement of good standingthe receipt of the Group Annuity Contract signed by the Plan Trustee;
(v) the Group Annuity Contract (including all exhibits and attachments thereto), duly executed by the Plan Trustee;
(vi) a certificate, dated as of the Closing Date (orDate, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each signed by a duly authorized officer of the other states in which any Company certifying as to the satisfaction of the Companies are qualified to do business as a foreign Person;
(ivconditions specified in Section 8.3(a) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”8.3(b), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior each case, as to the ClosingCompany, the Closing Transaction Expenses Certificateand Section 8.3(c);
(vii) at least one Business Day prior the Plan Trustee Agreement, duly executed by the Independent Fiduciary and the Plan Trustee (or evidence of any alternative arrangements as shall have been agreed by the Insurer and the Company pursuant to the Closing, the Closing Indebtedness Certificate;last sentence of Section 6.3(b)); and
(viii) an instruction to [ *** ], duly executed by the Closing CertificatePlan Investment Fiduciary, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.D.
(b) At the Closing, Parent and/or Operatorthe Insurer will deliver to the Plan Trustee, as applicablewith a copy to the Independent Fiduciary and the Company, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agentfollowing duly executed documents and other items:
(i) the Escrow AgreementGroup Annuity Contract (including all exhibits and attachments thereto), duly executed by Parent and Operatorthe Insurer;
(ii) the Parent Closing Merger Consideration (in Bill ▇▇ Sale, duly executed by the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14Insurer;
(iii) [ *** ] Transfer Documentation and [ *** ] Transfer Documentation, duly executed by the Insurer;
(iv) a certificate of the Secretary of each Buyer Partycertificate, dated as of the Closing Date, signed by a duly authorized officer of the Insurer certifying that Contract 300 Portfolio P remains in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents Guaranteed Separate Account and that such Charter Documents the assets in Contract 300 Portfolio P are part of the consideration for the Group Annuity Contract;
(v) evidence of Governmental Approvals set forth in full force and effect Appendix 8.2(d);
(vi) a certificate, dated as of the Closing Date and (iii) the resolutions Date, signed by a duly authorized officer of the board Insurer certifying as to the satisfaction of directors (or equivalent governing bodythe conditions specified in Section 8.2(a) of and Section 8.2(c), in each Buyer Party authorizing case, as to the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyInsurer; and
(ivvii) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take the Plan Trustee Agreement, duly executed by the Insurer (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents evidence of any alternative arrangements as may be reasonably requested shall have been agreed by the other Parties in order Insurer and the Company pursuant to effectuate the consummation last sentence of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingSection 6.3(b)).
Appears in 2 contracts
Sources: Transaction Framework Agreement (General Motors Co), Definitive Transaction Framework Agreement (General Motors Co)
Deliveries at Closing. At the Closing, (ai) At or Parent and the Sellers will deliver to Buyer the various certificates, instruments, and documents referred to in Section 7.1 below, (ii) Buyer will deliver to Parent and the Sellers the various certificates, instruments, and documents referred to in Section 7.2 below, (iii) Parent and the Sellers shall execute, acknowledge (if appropriate), and deliver to Buyer such other instruments of sale, transfer, conveyance, and assignment as Buyer and its counsel may reasonably request (including such instruments contemplated by the Asset Purchase Agreement), (iv) Parent and the Sellers shall deliver to Buyer, to the extent requested by Buyer at least three (3) business days prior to the ClosingClosing Date, HoldCo shall execute and/or deliverthe written resignation of each member of the board of directors, board of managers or equivalent governing body, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(i) (A) a true, complete of RAAC and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”)Target Subsidiaries, which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens Buyer will execute, acknowledge (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”if appropriate), in form and substance deliver to Parent and the Sellers such other instruments of assumption as Parent, the Sellers and their counsel may reasonably satisfactory to Buyer Parties;
request (including such instruments contemplated by the Asset Purchase Agreement), (vi) at least one Business Day prior U.S. Buyer will deliver to RAHI the consideration determined in the manner set forth in Section 2.2 above, (vii) U.K. Buyer will deliver to RASL the consideration determined in the manner set forth in Section 2.2 above, (viii) RAHI will deliver to U.S. Buyer certificates representing all of the Target Interests (to the extent certificated), endorsed in blank or accompanied by duly executed assignment documents and (ix) Buyer will deliver to Parent the consideration referred to in Section 6.13 below. At the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form U.K. Buyer and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company RASL shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or consummate the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingAsset Purchase Agreement.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hawker Beechcraft Quality Support Co), Stock Purchase Agreement (Raytheon Co/)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo Seller shall execute and/or deliver, as applicable, deliver or cause to be executed and/or delivered, delivered to Buyer PartiesPurchaser the following:
(i) (A) a truethe Certificate of Merger, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval duly executed by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentCompany;
(ii) certificate(s) representing the Escrow AgreementShares owned by Seller, duly executed by Stockholder Representativefree and clear of any Lien;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)evidence, in form and substance reasonably satisfactory acceptable to Buyer Parties;
Purchaser, that (viA) at least one Business Day prior all Indebtedness of the Company has been paid in full and all Liens except Permitted Liens in connection therewith have been terminated and (B) all Indebtedness of Seller and any officer, director, or Affiliate of Seller or Company for borrowed money owed by the Company has been paid in full; provided the occurrence of Closing shall constitute a waiver of any evidence not so delivered (but not of any requirement herein that such amounts are to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, be paid in the manner contemplated in Section 1.17(afull);
(ixiv) a non-foreign person affidavit of Seller as required by Section 1445 of the Consideration SpreadsheetCode, substantially in the manner contemplated in Section 1.14(e)forms attached hereto as Exhibit C;
(xv) those consents or approvals identified on Schedule 1.19(a)(xan escrow agreement, substantially in the form attached hereto as Exhibit D (the “Escrow Agreement”);
(xi) a certificate of the Secretary of each Company, dated the Closing Dateduly executed by Seller, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are which shall be in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a partyDate;
(xiivi) an agreement among Purchaser, Seller and Company which provides for the private label manufacturing of Fiberguard® family of products by Seller for Company and Purchaser, in the form attached hereto as Exhibit E (the “PLP to OCC Supply Agreement”);
(vii) an agreement among the Company and Seller which provides for the continued purchase from Company by, and sale of datacom products by, the Seller’s Brazilian subsidiary, in the form attached hereto as Exhibit F (the “SMP to PLP Supply Agreement”);
(viii) an agreement among Purchaser and Seller which provides for Seller to allow the Company to continue operations in the same form and manner as it operated in Seller’s Albemarle, North Carolina, facilities and for Seller to continue to provide certain Information Technology services to the Company, for a period of six (6) months, with the fee for such services to be One Dollar ($1.00) per month, in the form attached hereto as Exhibit G (the “PLP Transition Services Agreement”); and
(ix) employment agreements, in form and substance acceptable to Purchaser, containing, among other things, confidentiality, non-compete and non-solicitation provisions, duly executed by the employees of the Company listed on Exhibit H attached hereto, respectively (the “Employment Agreements”), each of which shall be in full force and effect as of the Closing Date;
(x) resignations, in form and substance reasonably acceptable to Purchaser, effective as of the Closing Date, of each officer and director of the Company;
(xi) evidence, in form and substance reasonably satisfactory acceptable to Buyer PartiesPurchaser, that each Affiliate Contract has all Material Consents and all necessary Consents of any Governmental Authority have been terminated, and no Company shall have any remaining obligations thereunderobtained or made;
(xiiixii) resignations (which shall include a release of all claims legal opinion by the applicable director or officer against each Company) of the directors and officers of each of the Companies, Seller’s counsel in substantially the form attached hereto as Exhibit D;
I (xiv) documentary evidence “Legal Opinion of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCoSeller’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or controlCounsel”);
(xixxiii) any landlord consents required pursuant all other documents and instruments reasonably requested by Purchaser to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order delivered by Seller to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending Purchaser at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or Purchaser shall deliver the Exchange Agentfollowing:
(i) the Closing Date Payment to Seller by wire transfer of immediately available funds, to an account or accounts designated by Seller in a written notice delivered to Purchaser no later than three (3) Business Days prior to the Closing Date;
(ii) payment to Seller of the Legal Opinion Payment by Purchaser by wire transfer of immediately available funds, to an account or accounts designated by Seller in a written notice delivered to Purchaser no later than three (3) Business Days prior to the Closing Date;
(iii) the Escrow Amount to the Escrow Agent on behalf of Seller;
(iv) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator)Purchaser, in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are which shall be in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyDate; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be takenv) all such further actions, do (or cause to be done) all such further things other documents and execute (or cause to be executed) all such further documents as may be instruments reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine Seller to be necessary either before, delivered by Purchaser to Seller at or following the Closing.
Appears in 2 contracts
Sources: Merger Agreement (Optical Cable Corp), Merger Agreement (Preformed Line Products Co)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(i) Sellers’ Representative will deliver to Buyer: (A) a true, complete and correct copy on behalf of the written consent or other agreement from the Stockholders, stock certificates representing approval all Shares, free and clear of all Liens (other than Liens pursuant to applicable securities Laws), each endorsed in blank or accompanied by duly executed assignment documents executed by the holders of at least 98% applicable Stockholder; (B) the minute and attendance books, stock ledgers and registers and corporate seals, if any, of the outstanding shares Company and any of capital stock its Subsidiaries in the possession of HoldCo the Sellers or any of this Agreementtheir respective Affiliates (other than the Company and its Subsidiaries); (C) a properly completed and executed IRS Form W-9 and a non-foreign affidavit from each Seller duly executed by such Seller, dated as of the Merger Closing Date, and in the transactions contemplated hereby form attached hereto as Exhibit C (collectively, the a “Written ConsentFIRPTA Certificate”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(iiD) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation Seller Representative and the Agreement Among Investors Escrow Agent.
(ii) that there have been no amendments Sellers’ Representative will deliver (or cause to such Charter Documents, the Certificate be delivered) to Buyer: (A) certified copies of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company Seller that is not an individual and the Company, authorizing and approving the execution of this Agreement and the Ancillary Agreements to which such Seller is a party and the consummation of the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document Ancillary Agreements to which such Company Seller is a party;
; (xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiiiB) resignations (which shall include a release of all claims each director and officer of the Company and its Subsidiaries, as reasonably requested by the applicable director or officer against each CompanyBuyer not later than five (5) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days Business Days prior to the Closing; and (C) a properly completed and executed IRS Form W-9 or IRS Form W-8 (if applicable), from each payee of Company Transaction Expenses at the Closing and each lender identified in a Debt Payoff Letter.
(biii) At Buyer will (A) make the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(ipayments required by Section 2(b) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case above in accordance with Section 1.14;
2(b); (iiiB) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the deliver certified resolutions of the board of directors (or equivalent other governing body) of each Buyer Party authorizing and approving the execution of this Agreement and the Ancillary Agreements to which Buyer is a party and the consummation of the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document Ancillary Agreements to which such Buyer Party is a party; and
party and (ivC) any other items or certificates described in Section 5.3 belowdeliver to the Seller Representative, the Escrow Agreement, duly executed by Buyer.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Harsco Corp), Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Deliveries at Closing. (ai) At or prior to the Closing, HoldCo Purchaser shall execute and/or deliver, as applicable, or cause deliver to be executed and/or delivered, to Buyer PartiesSeller:
(i1) the Estimated Purchase Price by wire transfer of immediately available funds to the bank account of Seller set forth in the Pre-Closing Certificate;
(A2) to each Person identified in the Pre-Closing Certificate as a recipient of an amount in respect of the Closing Date Funded Indebtedness, such amount by wire transfer of immediately available funds to the bank account of such Person set forth in the Pre-Closing Certificate;
(3) to each Person identified in the Pre-Closing Certificate as a recipient of an amount in respect of the Closing Company Transaction Expenses, such amount by wire transfer of immediately available funds to the bank account of such Person set forth in the Pre-Closing Certificate; and
(4) a trueTransition Services Agreement, complete and correct copy in substantially the form of Exhibit B (the written consent or other agreement from the Stockholders“Transition Services Agreement”), representing approval duly executed by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;Company.
(ii) At the Escrow Closing, Seller shall deliver to Purchaser:
(1) written resignations of all officers and directors (or those individuals holding similar positions) of the Acquired Companies other than those listed on Schedule 1.2(c)(ii)(1), effective as of the Closing;
(2) the Transition Services Agreement, duly executed by Stockholder RepresentativeSeller;
(iii3) original stock certificates representing the Shares, duly endorsed in blank for transfer to, or accompanied by duly executed stock transfer powers executed in favor of, Purchaser;
(4) good standing (to the extent applicable in the particular jurisdiction) certificates for each of good standing, dated as the Acquired Companies from the jurisdiction of each such Person’s organization;
(5) payoff and release letters from the holders of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each Indebtedness of the other states in which any type contemplated by clauses “(a)” and “(c)” of the definition of “Indebtedness” (the “Closing Date Funded Indebtedness”) that (i) reflect the amounts required in order to pay in full such Indebtedness; and (ii) provide that, upon payment in full of the amounts indicated, all Encumbrances on assets of the Acquired Companies are qualified with respect to do business as a foreign Person;
(iv) payoff letters or other evidence the Closing Date Funded Indebtedness shall be terminated and of discharge no further force and effect, together with UCC-3 termination statements with respect to the financing statements filed against the assets of the Acquired Companies by the holders of such Encumbrances, in each case in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessPurchaser;
(v6) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), a certificate in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the ClosingPurchaser executed by Seller under penalties of perjury, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated certifying that Seller is not a “foreign person” as defined in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate 1445 of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofCode; and
(xxv7) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance evidence reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as Purchaser of the Closing Date full and final discharge of any payables owed by any Acquired Company to Seller, Seller Parent or any of their Subsidiaries (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) other than any other items or certificates described in Section 5.3 belowAcquired Company).
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (United Online Inc)
Deliveries at Closing. At the Closing, the following items shall be delivered by the parties (unless otherwise agreed to by the parties):
(a) At or prior Buyer shall deliver to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesCompany and ENBW:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentClosing Cash Payments;
(ii) the Escrow Agreement, duly executed by Stockholder Representativeofficer’s certificate described in Section 12.3(c);
(iii) certificates the secretary’s certificate described in Section 12.3(d); and
(iv) a certificate, validly executed by the Secretary of good standing, dated Buyer Parent for and on its behalf certifying as to the valid adoption of resolutions of its Board of Directors approving this Agreement and the consummation of the transactions contemplated hereby; provided that such certificate is not required to be delivered by Buyer Parent if the Closing Date occurs more than ten (or10) business days following the date hereof.
(b) The Company, the LLC and the Asset Sellers shall deliver to Buyer:
(i) evidence of the filing of amended articles of organization of the LLC in the form attached hereto on Exhibit D with the Secretary of State of the State of North Carolina;
(ii) at their sole cost, in the manner and form, and to the locations, reasonably specified by Buyer, all of the Acquired Assets other than the Transferred Technology;
(iii) duly executed by the appropriate Asset Sellers (i) General Assignments and Bills of Sale substantially in the form of Exhibit E hereto (the “General Assignment”), (ii) assignments of the Transferred Intellectual Property Rights from the Asset Sellers or their Affiliates, as necessaryapplicable, to Buyer or one of its domestic subsidiaries or Affiliates as designated by Buyer in substantially in the most recent practicable dateforms of Exhibit J hereto, and (iii) such other good and sufficient instruments of conveyance, assignment and transfer, in form and substance reasonably acceptable to Buyer’s and the Asset Sellers’ counsel, as shall be effective to vest in Buyer good and valid title in and to the Acquired Assets (the General Assignments and the other instruments referred to in clauses (i), for (ii) and (iii) above being collectively referred to herein as the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person“Assignment Agreements”);
(iv) payoff letters copies of all of the Transferred Contracts and for each such Transferred Contract for which a consent is required for transfer or other evidence of discharge assignment, the Asset Sellers shall deliver to Buyer a written consent in form and substance reasonably satisfactory to Buyer Parties with respect Buyer, signed by the party or parties (other than an Asset Seller) to all Indebtedness of the Companies (the “Closing Indebtedness”), such Transferred Contract pursuant to which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); providedparty or parties thereto (x) consent, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation transfer and assignment of such Transferred Contract to Buyer and (y) confirms that Buyer shall have all rights that the Casino in Asset Sellers had under such Transferred Contract following the Ordinary Course of BusinessClosing;
(v) documentary evidence of the release and discharge of any guarantees or Liens (includingduly executed consents identified on Schedule 12.2(e), without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)in each case, in form and substance reasonably satisfactory to Buyer PartiesBuyer;
(vi) at least one Business Day prior to evidence of termination of the Closing, the Closing Transaction Expenses CertificateContracts listed on Schedule 12.2(f);
(vii) at least one Business Day prior to evidence of release of the Closing, the Closing Indebtedness CertificateLiens listed on Schedule 11.9;
(viii) original copies of the Closing Certificate, in the manner contemplated in Section 1.17(a)License Agreements marked “terminated”;
(ix) the Consideration Spreadsheetcertificates of existence of counsel to the Asset Sellers, in E&EC and the manner contemplated Company referred to in Section 1.14(e12.2(q);
(x) those consents or approvals identified on Schedule 1.19(a)(xthe legal opinions of counsels to the LLC referred to in Section 12.2(r);
(xi) a certificate one copy of invention disclosures, prosecution files and materials related to Patents included in the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a partyTransferred Intellectual Property Rights;
(xii) evidence, in form and substance reasonably satisfactory one copy of all Transferred Technology to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunderbe delivered at Closing as provided by Schedule 2.1(b);
(xiii) resignations unless Buyer provides written notice to the LLC, evidence that the Employee Plan(s) (which shall include a release of all claims by the applicable director or officer against each Companyincluding any related insurance policies but excluding any Employment Agreements not specifically required to be terminated pursuant to this Agreement) have been terminated (effective as of the directors and officers of each of day immediately preceding the Companies, Closing Date) in substantially accordance with Section 11.10.
(xiv) the officers’ certificates described in Section 12.2(o);
(xv) the additional officer’s certificate described in Section 12.2(p); and
(xvi) a duly executed estoppel certificate in the form attached hereto as Exhibit D;
(xiv) documentary evidence of H from the termination of landlord for the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Leased Real Property substantially in the form of Exhibit E attached heretoCharlotte, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingNorth Carolina.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Membership Interests and Asset Purchase Agreement, Membership Interest and Asset Purchase Agreement (Catalytica Energy Systems Inc)
Deliveries at Closing. 4.1 The CMBS Subsidiary (asubject to Section 1.2) At or prior to and the Closing, HoldCo shall execute and/or deliverLadder Investor, as applicable, or cause shall deliver to be executed and/or delivered, to Buyer Parties:
the REIT’s Subsidiaries at the Closing: (i) (A) a true, complete and correct copy with respect to each of the written consent or Initial Assets identified in Exhibit C and Exhibit D, such endorsements, assignment and assumption agreements, participation agreements and other agreement from the Stockholdersinstruments of transfer, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal including with respect to the shares CMBS, a form of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization assignment and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation assumption and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documentsrepresentations incorporated therein, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached heretoAppendix 4B of the MLSA, all in the form satisfactory to the Company, as may be required to vest good title in and to the Initial Assets in the REIT’s Subsidiaries (“Transfer Instruments”), executed by the CMBS Subsidiary and the Ladder Investor, as applicable, and such each other affidavits relating to required party other than the New Title Policy as the Title Insurer may reasonably request;
REIT’s Subsidiaries; (xviiii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in a certificate from each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) CMBS Subsidiary and the Customer Database; provided, however, that physical delivery Ladder Investor executed by the applicable authorized officers certifying the Deemed Value of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments applicable Initial Assets as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each StockholderClosing Date, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only and in the case of Stockholders orany Declined CMBS, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day subsequent closing date; and (iii) copies of any approvals or consents required, if any, under the most recent calendar month ending at least 30 days prior underlying loan documents more particularly described on Exhibit C hereto in order to consummate the transfers herein contemplated.
4.2 Holdings shall deliver to the Closing.
(b) At Company at the Closing, Parent and/or Operator, as applicable, has delivered, or caused Closing the Cash Payment by wire transfer of immediately available funds to be delivered, to Stockholder Representative or an account designated by the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case Company in accordance with Section 1.14;written wire instructions delivered by Company to Holdings.
(iii) a certificate of 4.3 The Company shall deliver to the Secretary of each Buyer Party, dated Ladder Investor at the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as toClosing: (i) a certificate evidencing the Charter Documents of such Buyer Party, Private Placement Shares; and (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as the extent applicable, counterparts of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested Transfer Instruments executed by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingCompany.
Appears in 2 contracts
Sources: Private Placement Purchase Agreement, Private Placement Purchase Agreement (Ladder Capital Realty Finance Inc)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo TGCI shall execute and/or deliver, as applicable, deliver or cause to be executed and/or delivered, delivered to Buyer PartiesOrganik at Closing:
(i1) (A) a truecertificates representing all shares, complete and correct copy or an amount of shares acceptable to Organik, of the written consent or other agreement from the StockholdersTGCI Stock as described in Section 1, representing approval each endorsed in blank by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentregistered owner;
(ii2) an agreement from each Shareholder surrendering his or her shares agreeing to a restriction on the Escrow Agreement, duly executed by Stockholder Representativetransfer of the Exchange Stock as described in Section 2 hereof;
(iii3) certificates a copy of good standing, dated as a consent of TGCI's board of directors authorizing TGCI to take the necessary steps toward Closing Date (or, as necessary, the most recent practicable date), for transaction described by this Agreement in the Companies form set forth in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonExhibit B;
(iv4) payoff letters or other evidence a copy of discharge in form and substance reasonably satisfactory a Certificate of Good Standing for TGCI issued not more than thirty (30) days prior to Buyer Parties with respect to all Indebtedness Closing by the Ontario, Canada, Secretary of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessState;
(v5) documentary evidence an opinion of the release and discharge of any guarantees or Liens (including▇▇▇▇▇▇▇▇▇ Genshlea, without limitationChediak, all appropriate UCC financing statement amendments and termination statements) affecting the CompaniesSproul, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory counsel to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each CompanyTGCI, dated the Closing Date, in a form deemed acceptable by Organik and substance reasonably satisfactory to Buyer Parties, certifying as to: its counsel;
(i6) the Charter Documents Articles of such Company, the Certificate Incorporation and Bylaws of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect TGCI certified as of the Closing Date by the President and Secretary of TGCI;
(iv7) the resolutions such other documents, instruments or certificates as shall be reasonably requested by Organik or its counsel.
(b) Organik shall deliver or cause to be delivered to TGCI at Closing:
(1) a copy of the a consent of Organik's board of directors of each Company authorizing Organik to take the transactions contemplated necessary steps toward Closing the transaction described by this Agreement and in the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a partyform set forth in Exhibit C;
(xii2) evidence, in form and substance reasonably satisfactory to Buyer Parties, a Secretary's Certification that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunderthe Agreement was approved by the Organik shareholders at a Special Shareholders Meeting duly held;
(xiii3) resignations a copy of a Certificate of Good Standing for Organik issued not more than ten (which shall include a release of all claims 10) days prior to Closing by the applicable director or officer against each Company) Secretary of the directors and officers State of each of the Companies, in substantially the form attached hereto as Exhibit DWashington;
(xiv4) documentary evidence all of Organik's corporate records;
(5) executed bank forms for Organik bank accounts reflecting a change in management and signatories to said bank accounts;
(6) stock certificate(s) or a computer listing from Organik's transfer agent representing the Exchange Stock to be newly issued by Organik under this Agreement, which certificates shall be in the names of the termination appropriate TGCI Shareholders, each in the appropriate denomination as described in Section 2;
(7) an opinion of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Agreement▇▇▇▇, each in form and substance reasonably satisfactory Esq., special counsel to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer PartyOrganik, dated the Closing Date, in a form deemed acceptable by TGCI and substance reasonably satisfactory to HoldCo, certifying as to: its counsel;
(i) the Charter Documents 8) Articles of such Buyer Party, (ii) that there have been no amendments to such Charter Documents Incorporation and that such Charter Documents are in full force and effect Bylaws of Organik certified as of the Closing Date by the President and Secretary of Organik;
(iii9) the resolutions written resignations of the board all officers and directors of directors (Organik to take effect after new directors, approved by TGCI, are elected or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyappointed; and
(iv10) any such other items documents, instruments or certificates described in Section 5.3 below.
(c) Each Party and its Representatives as shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger TGCI or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingcounsel.
Appears in 2 contracts
Sources: Plan and Agreement of Reorganization (Vakili Ali), Plan and Agreement of Reorganization (Organik Technologies Inc)
Deliveries at Closing. At the Closing, subject to Section 2.03(a):
(a) At or prior to the Closing, HoldCo Seller Representative shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, deliver to Buyer Parties:
(i) (A) a true, complete and correct copy of non-foreign affidavit in the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (form attached hereto as Exhibit B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representativeeach Seller;
(iiib) certificates each Seller shall deliver to Buyer the Fourth Amended and Restated Target Operating Agreement, in the form attached hereto as Exhibit C, duly executed by such Seller, which shall evidence the transfer of good standingthe Transferred Interests to Buyer;
(c) Seller Representative shall execute and deliver to Buyer a certificate, dated as of the Closing Date (orDate, as necessary, certifying that the most recent practicable date), for the Companies conditions set forth in their respective jurisdiction(sSections 8.01(a) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person8.01(b) have been satisfied;
(ivd) payoff letters or other evidence Seller Representative shall provide to Buyer a Certificate of discharge Good Standing from the Secretary of State of the State of Oklahoma and the Secretary of State of the State of North Dakota as to the legal existence and good standing of Target, dated within five Business Days of the Closing Date;
(e) Seller Representative shall deliver to Buyer copies of releases and terminations in form and substance reasonably satisfactory to Buyer Parties with respect of all Liens (other than Permitted Liens) burdening the Transferred Interests or Properties (or any portion thereof), in each case, duly executed by the appropriate Persons;
(f) Seller Representative, on behalf of each Seller, shall execute and deliver to all Indebtedness Buyer an assignment of Transferred Interests in the Companies form attached hereto at Exhibit E (the “Closing IndebtednessAssignment”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities effectuating the transfer of the Companies specifically related Transferred Interests to the operation of the Casino in the Ordinary Course of BusinessBuyer;
(vg) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory Seller Representative shall deliver a certificate to Buyer Parties;
(vi) at least one Business Day prior certifying that the powers of attorney executed by each Seller continue to the Closingbe valid and enforceable and grant Seller Representative, on behalf of each such Seller, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior power and authority to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form enter into and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing consummate the transactions contemplated by this Agreement and the execution, delivery Transaction Documents on the terms contained herein and performance of this Agreement and each Transaction Document to which such Company is a partytherein;
(xiih) evidenceBuyer shall execute and deliver to Seller Representative a certificate executed by a duly authorized officer of Buyer, dated as of the Closing Date, certifying that the conditions set forth in form Sections 8.02(a) and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has 8.02(b) have been terminated, and no Company shall have any remaining obligations thereunderfulfilled;
(xiiii) resignations (which Buyer shall include a release of all claims by execute and deliver to Seller Representative the applicable director or officer against each Company) of the directors Fourth Amended and officers of each of the CompaniesRestated Target Operating Agreement, in substantially the form attached hereto as Exhibit DC;
(xivj) documentary evidence Buyer shall deliver to Seller Representative a certificate, duly executed by an officer of Buyer and dated as of the termination Closing Date (i) attaching and certifying on behalf of Buyer complete and correct copies of (A) the resolutions or unanimous consent of the Casino Management managers (or other applicable Persons) of Buyer authorizing the execution, delivery, and performance by Buyer of this Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ AgreementTransactions contemplated hereby, and (B) any required approval by the members of Buyer of this Agreement and the Transactions contemplated hereby and (ii) certifying on behalf of Buyer the incumbency of each in form and substance reasonably satisfactory to officer of Buyer Partiesexecuting this Agreement or any Transaction Document;
(xvk) evidenceBuyer shall provide to Seller Representative a Certificate of Good Standing from the Secretary of State of the State of its formation as to the legal existence and good standing of Buyer, dated within three Business Days of the Closing Date;
(l) Buyer shall execute and deliver to Seller Representative the Assignment;
(m) Buyer shall deliver to Manager, to the account designated in the Closing Date Statement, the Closing Purchase Price as determined pursuant to Sections 2.04 and 2.05, less the Deposit;
(n) Seller Representative and Buyer shall execute and deliver to Manager a joint written instruction, in form and substance reasonably satisfactory a mutually agreeable form, directing the Manager to Buyer Parties, that Margaritaville has confirmed that no event of default exists under distribute to the Margaritaville Deposit to Sellers in accordance with the Target Operating Agreement;
(xvio) executed affidavits for all Real Property substantially Buyer shall execute and deliver to Seller Representative the Seller Note;
(p) Buyer shall execute and deliver to Seller Representative a mortgage instrument in the form of set forth on Exhibit E attached heretoF (the “Mortgage”) and UCC financing statement (the “UCC Financing Statement”), in recordable form covering the Properties, securing the Seller Note, which mortgage lien and security interest shall constitute a senior secured security interest against Buyer’s interest the Properties; and
(q) each Party shall deliver to the other Parties all such other instruments, documents, and such other affidavits relating items reasonably necessary to effectuate the New Title Policy as terms of this Agreement and the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating theretoTransactions contemplated hereunder, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingrequested.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Interest Purchase Agreement (Energy 11, L.P.), Exclusive Option Agreement (Energy 11, L.P.)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Company, TopCo, or the Members’ Representative shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesBuyer:
(i) (A) a true, complete and correct copy evidence of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% issuance of the outstanding shares of capital stock of HoldCo of this AgreementPurchased Units in a form reasonably acceptable to Buyer, the Merger vesting all right, title and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentinterest in such Purchased Units in Buyer;
(ii) the Transaction Documents executed by the Company, TopCo, and the Members, as applicable, and all other agreements, documents, instruments or certificates required to be delivered by the Company, TopCo, and the Members at or prior to the Closing pursuant to Article VII;
(iii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization Members’ Representative and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonTopCo;
(iv) payoff letters or other evidence of discharge in form the Payment Agent Agreement, duly executed by the Members’ Representative, TopCo, and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessPayment Agent;
(v) documentary evidence the Company Closing Certificate;
(vi) written certification by the Chief Executive Officer of each of the release Company and discharge Pearl of any guarantees or Liens the closing of the acquisition of the assets of Pearl in accordance with the Pearl Acquisition Agreement on the Closing Date (such acquisition, the “Pearl Acquisition”), including, without limitation, the execution and delivery of all appropriate UCC financing statement amendments documents required for closing and the satisfaction of all other conditions to closing subject only to funding of the Pearl Purchase Price on the Closing Date pursuant to this Agreement;
(vii) the Payoff Letters and evidence in form satisfactory to Buyer that all Liens relating to the Company and Company Assets shall have been released in full, other than Permitted Liens;
(viii) a written acknowledgement by TopCo in form satisfactory to Buyer that the Company Note is to be satisfied in full upon the payment of the Purchase Price;
(ix) an IRS Form W-9 (or other proof of exemption from withholding under Section 1445 and 1446(f) of the Code in connection with the Transactions reasonably satisfactory to Buyer) validly executed by each Member and TopCo;
(x) evidence reasonably satisfactory to Buyer that all security interests and other Liens, other than Permitted Liens, in any assets of the Company have been released prior to or shall be released simultaneously with the Closing;
(xi) evidence of termination statementsof the agreements listed on Schedule 7.9;
(xii) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable deliverables of the Company and Members set forth in Article VII;
(xiii) completion of the RSM ▇▇▇▇▇▇▇▇-▇▇▇▇▇ audit and delivery of the RSM report;
(xiv) a finalized forgiveness application in the form prescribed by the PPP Lender (the “Closing LiensPPP Forgiveness Application”)) with all supporting documentation including, but not limited to, evidence of each of the amounts used in the forgiveness amount calculation therein, together with a certificate executed by the Chief Executive Officer of the Company, in form and substance reasonably satisfactory to Purchaser, certifying that the PPP Loan Forgiveness Application was submitted to the PPP Lender and attaching a copy of each of the PPP Forgiveness Application and the resolutions of the Managers of the Company approving the PPP Forgiveness Application (such resolutions the “PPP Forgiveness Board Authorization”).
(b) At or prior to the Closing, Buyer Partiesshall deliver or cause to be delivered the following:
(i) by wire transfer of immediately available funds to the account of the Payment Agent on behalf of the Company for further payment to the Members on behalf of TopCo pursuant to the Redemption, cash in an amount equal to the Estimated Cash Consideration, less the sum of (y) the Escrow Funds, plus (z) the Representative Expense Fund (the “Closing Cash Consideration”), and less the Pearl Purchase Price;
(ii) to the Exchange Agent the Buyer Shares for the account of the Company for immediate distribution to TopCo in connection with the Company Note Repayment, and then to the Members pursuant to the Redemptions (the “Closing Buyer Shares Consideration” and, together with the Closing Cash Consideration, the “Closing Payment”), which Buyer Shares will be delivered in book entry (electronic form);
(iii) cash in an amount equal to the Pearl Purchase Price to Pearl on behalf of the Company, by wire transfer of immediately available funds as set forth in the Initial Consideration Spreadsheet;
(iv) cash in an amount equal to the Representative Expense Fund to the Members’ Representative, by wire transfer of immediately available funds as set forth in the Initial Consideration Spreadsheet;
(v) cash in an amount equal to the Company Transaction Expenses set forth in the Initial Consideration Spreadsheet, by wire transfer of immediately available funds, to each of the payees set forth in such Initial Consideration Spreadsheet;
(vi) at least one Business Day prior cash in an amount equal to the ClosingClosing Indebtedness Amount set forth in the Initial Consideration Spreadsheet each of the payees set forth in such Initial Consideration Spreadsheet, to the Closing Transaction Expenses Certificateextent applicable;
(vii) at least one Business Day prior cash in an amount equal to the ClosingPPP Loan Escrow Amount, by wire transfer of immediately available funds, to the Closing Indebtedness CertificatePPP Lender as set forth in the Initial Consideration Spreadsheet;
(viii) the Buyer Closing Certificate, in Certificate to the manner contemplated in Section 1.17(a)Members’ Representative;
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent Buyer and Operatorthe Escrow Agent, to the Members’ Representative and TopCo;
(iix) the Parent Closing Merger Consideration (in Payment Agent Agreement, duly executed by Buyer, to the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyMembers’ Representative; and
(ivxi) any to the Members’ Representative and TopCo, the Transaction Documents executed by Buyer, as applicable, including all other items agreements, documents, instruments or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause required to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested delivered by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, Buyer at or following prior to the ClosingClosing pursuant to Article VIII.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (CarGurus, Inc.), Membership Interest Purchase Agreement (CarGurus, Inc.)
Deliveries at Closing. At the Closing, the Seller and the Buyer, respectively, will deliver the following documents:
(a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, The Seller and AUGI will deliver or cause to be executed and/or delivered, delivered to Buyer PartiesEXTEL and to the Buyer:
(i) (A) a true, complete and correct copy of the written consent or other agreement from by-laws of the Stockholders, representing approval Seller and resolutions adopted by the holders Seller's Board of at least 98% of Directors and sole stockholder approving the outstanding shares of capital stock of HoldCo of transactions contemplated by this Agreement, certified by the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies Secretary of the executed Letters Seller as of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentClosing Date;
(ii) a copy of the Escrow Agreementcertificate of incorporation of the Seller, duly executed with all amendments thereto, together with a long form good standing certificate and tax clearance certificate, certified by Stockholder Representativethe Secretary of State of the Seller's state of incorporation as of a date no later than five (5) days before the Closing Date;
(iii) certificates certificate(s) by the Secretaries of good standingthe Seller and of AUGI, dated as of the Closing Date (orDate, as necessaryattesting to the authority and verifying the signature of each person who signed this Agreement or any other agreement, instrument or certificate delivered in connection with the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each transactions contemplated hereby on behalf of the other states in which any of the Companies are qualified to do business as a foreign PersonSeller and AUGI, respectively;
(iv) payoff letters all agreements, authorizations, exemptions, waivers and consents of any third persons or other evidence of discharge in form entities required to be obtained by the Seller or AUGI hereunder or generally necessary for the consummation by the Seller and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness AUGI of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that transactions contemplated by this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessAgreement;
(v) documentary evidence sufficient, original, executed copies of the release and discharge assignments of any guarantees or Liens (includingpatents, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)trademarks and/or copyrights, in form and substance reasonably satisfactory acceptable to Buyer Partiesthe Buyer, such that there is one original version for each group of patents, trademarks and copyrights;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(acertificate(s);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, signed by the chief financial officer of each of the Seller and AUGI that the conditions specified in form Section 10.2(a) and substance reasonably satisfactory (b) hereof have been fulfilled in all respects;
(vii) assignment of leases for each Lease; and
(viii) such other specific instruments of sale, conveyance, assignment, transfer, and delivery as are required to vest good and marketable title to the Assets in the Buyer.
(b) EXTEL and the Buyer Parties, certifying as to: will deliver or cause to be delivered to the Seller and to AUGI:
(i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as a copy of the Closing Date and (iv) the resolutions by-laws of the board Buyer and resolutions adopted by the Buyer's Board of directors of each Company authorizing Directors and sole stockholder approving the transactions contemplated by this Agreement and the executionAgreement, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims certified by the applicable director or officer against each Company) Secretary of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and OperatorClosing Date;
(ii) a copy of the Parent certificate of incorporation of the Buyer, with all amendments thereto, together with a long form good standing certificate and tax clearance certificate, certified by the Secretary of State of the Buyer's state of incorporation as of a date no later than five (5) days before the Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14Date;
(iii) a certificate certificate(s) by the Secretaries of EXTEL and of the Secretary Buyer, dated as of the Closing Date, attesting to the authority and verifying the signature of each Buyer Partyperson who signed this Agreement or any other agreement, instrument or certificate delivered in connection with the transactions contemplated hereby on behalf of EXTEL and the Buyer, respectively;
(iv) certificate(s), dated the Closing Date, signed by the chief financial officer of each of EXTEL and the Buyer that the conditions specified in form Section 10.1(a) and substance reasonably satisfactory to HoldCo, certifying as to: (ib) the Charter Documents of such Buyer Party, (ii) that there hereof have been no amendments to such Charter Documents and that such Charter Documents are fulfilled in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyall respects; and
(ivv) any such other items or certificates described in Section 5.3 below.
(c) Each Party specific instruments of conveyance, assignment, transfer, and its Representatives delivery as are required to confirm that the Buyer shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things have assumed the payment and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation performance of the Merger or Assumed Liabilities and the transactions contemplated by performance of the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingMaterial Contracts.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Eglobe Inc), Asset Purchase Agreement (American United Global Inc)
Deliveries at Closing. (a) At The following documents will be executed and delivered by the Buyer Parties and the Sellers, as applicable, at or prior to the Closing, HoldCo :
(i) The Sellers and the Buyer shall execute and/or an escrow agreement in the form attached hereto as Exhibit A (the “Closing Escrow Agreement”).
(ii) The Buyer Parties shall deliver to the Sellers the certificates required by Section 6.3(a) and (b) hereof.
(iii) The Sellers shall deliver, as applicable, or cause to be executed and/or delivered, to the Buyer Parties:the certificates and materials required by Section 6.2(a), (b) and (c) hereof.
(iiv) Each Seller (Aor if such Seller is a disregarded entity for U.S. federal income tax purposes, its regarded owner) shall deliver to the Buyer a true, complete properly completed IRS Form W-9 certifying that it is not subject to backup withholding and correct copy a certification of its status as a non-foreign person in the form attached hereto as Exhibit B (the “Non-Foreign Certificate”) in accordance and compliance with Treasury Regulations Section 1.1445-2(b)(2) and Section 1446(f) of the written consent or other Code.
(v) Each Seller shall have executed and delivered an assignment agreement from in the Stockholdersform attached hereto as Exhibit C (each, representing approval by an “Assignment Agreement”) assigning such Seller’s interest in the holders Purchased Interests to the Buyer Purchasing Subsidiaries free and clear of at least 98% all Encumbrances.
(vi) Each of the outstanding shares Sellers and the Buyer Purchasing Subsidiaries shall deliver evidence reasonably satisfactory to the Title Company regarding due organization and the due authorization of capital stock of HoldCo of the transactions contemplated by this Agreement, to the Merger and extent required by the transactions contemplated hereby Title Company.
(collectivelyvii) The Sellers shall deliver such customary affidavits as the Title Company may reasonably require in order to issue the Title Policy, including such affidavits as the “Written Consent”); and Title Company may reasonably require to issue a non-imputation endorsement.
(Bviii) true, complete and correct copies The Sellers shall deliver evidence of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreementresignation or removal, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated effective as of the Closing Date Date, of (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(sA) of organization and from each member of the other states in which any executive committee of the Companies are qualified to do business as a foreign Person;
Company, unless otherwise designated by the Buyer in advance in writing no less than five (iv5) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day Days prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (ivB) the resolutions Managing Joint Venture Partner.
(ix) The Sellers and the Buyer shall deliver to the Escrow Agent a joint written instruction instructing the Escrow Agent to release (1) the Deposit to the Sellers and (2) the interest accrued on the Deposit to the Buyer, in each case in accordance with the Deposit Escrow Agreement.
(x) The Sellers shall deliver evidence of (A) their respective resignations as members of the Grand Victoria Foundation, an Illinois not-for-profit corporation (the “GV Foundation”) and (B) the resignation or removal, effective as of the Closing Date, of each member of the board of directors of each Company authorizing the GV Foundation that is affiliated with the Sellers.
(xi) The Sellers shall deliver to the Buyer the third-party consents listed on Section 1.5(b) of the Disclosure Schedules obtained by the Sellers with respect to the Purchased Interests or the consummation of the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;Agreement.
(xii) evidence, RBG and the Buyer shall execute an escrow agreement in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;, pursuant to which the RBG Escrow Fund shall be held in respect of RBG’s payment obligations under Section 1.6(f) and Article VIII (the “RBG Escrow Agreement”).
(xiii) The Buyer shall provide Sellers with evidence that the R&W Insurance Policy has been bound and abdicates subrogation against the Sellers in all instances, other than in the case of common law fraud by Sellers in the making of the representations and warranties contained in Article II and Article III.
(xiv) documentary evidence The Sellers shall deliver to Buyer a USB drive containing a copy of the termination of virtual data room maintained by Citrix ShareFile. In addition to the Casino Management Agreement above deliveries, the Buyer Parties and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory Seller Parties shall deliver or cause to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and be delivered such other affidavits relating to the New Title Policy customary documents and instruments of transfer, assumption or filings as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties party may reasonably request in order or as may otherwise be necessary to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory give effect to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowAgreement.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Interest Purchase Agreement, Interest Purchase Agreement (Eldorado Resorts, Inc.)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo Seller shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, deliver to Buyer Partiesthe following:
(i) (A) a true, complete duly executed Bill of Sale and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentAssignment;
(ii) the Escrow Agreement, duly executed by Stockholder RepresentativeAgre▇▇▇▇t of Assumption of Liabilities;
(iii) certificates such other instruments of good standingsale, dated as of the Closing Date (ortransfer, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization conveyance and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge assignment in form and substance reasonably satisfactory to Buyer Parties and its counsel as Buyer may reasonably request including, without limitation, assignment agreements with respect to all Indebtedness patent, trademark and copyright rights of Seller transferred pursuant hereto, in each case as may be necessary to vest in Buyer good and marketable title to the Acquired Assets, free and clear of all liens, claims and encumbrances;
(iv) copies of all filings with and notifications of Governmental Bodies and Regulatory Authorities required to be made by Seller in connection with the execution and delivery of this Agreement or the consummation of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Businesstransactions contemplated hereby;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Seller's Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, or other authorized representative certifying as to: to (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iva) the resolutions of the board its Board of directors of each Company Directors authorizing the transactions contemplated by this Agreement and approving the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholderhereby, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused consent of its stockholders to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and the transactions contemplated hereby, and (c) the power and authority of the signatory to each of the Transaction Document Documents to which such Buyer Party Seller is a party;
(vi) a certificate as to Seller's good standing and legal existence certified by the Secretary of State of Delaware as of a date within thirty (30) days of the Closing Date;
(vii) an opinion of counsel to Seller in a form satisfactory to Buyer with respect to such matters as Buyer shall reasonably request;
(viii) copies of the consents, evidence of termination and assignments described in Sections 3.2(b)(iii)) and (iv);
(ix) a letter, executed by an authorized representative of Seller, addressed to the FDA assigning all rights in the NDA to Buyer;
(x) a letter, executed by an authorized representative of Seller, addressed to Health Canada's Therapeutic Products Directorate assigning all rights in the Canadian regulatory submission relating to Valrubicin to Buyer; and
(ivxi) a letter, executed by an authorized representative of Seller, addressed to each party listed on Schedule 4.11 notifying such party that title to any other items inventory or certificates described materials in Section 5.3 belowsuch party's possession belonging to Seller has been transferred to Buyer.
(cb) Each Party At or prior to the Closing, Buyer shall deliver to Seller the following:
(i) duly executed Bill of Sale and its Representatives shall take Assignment;
(or cause to be takenii) all duly executed Agre▇▇▇▇t of Assumption of Liabilities;
(iii) such further actions, do other instruments of assumption as Seller may reasonably request;
(or cause to be doneiv) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation portion of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.Purchase Price set forth in Section 2.4(b)(i);
Appears in 2 contracts
Sources: Asset Purchase Agreement (Valera Pharmaceuticals Inc), Asset Purchase Agreement (Valera Pharmaceuticals Inc)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, Seller will deliver to Buyer Partiesthe following duly executed documents and other items:
(i) a ▇▇▇▇ of Sale substantially in the form of Exhibit C hereto (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent▇▇▇▇ of Sale”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) an officer’s certificate to the Escrow Agreement, duly executed by Stockholder Representativeeffect that each of the conditions specified in Section 7.1(a) and Section 7.1(a) is satisfied;
(iii) certificates the receipt of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(sall third party consents and notices to or from third parties that are required to be delivered or obtained pursuant to Section 7.1(c) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Persondelivered by Seller;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessEmployment Agreement;
(v) documentary evidence an officer’s certificate of Seller enclosing a copy of the release and discharge certificate of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closingincorporation of Seller, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closingby-laws of Seller, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the Seller’s board of directors of each Company authorizing approving the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document a certification as to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) incumbency of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement Seller executing and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville delivering this Agreement;
(xvivi) executed affidavits the opinion of counsel for all Real Property Seller substantially in the form of Exhibit E attached hereto, and such other affidavits relating to D hereto (the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control“Legal Opinion”);
(xixvii) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofInvention Agreements/Assignments; and
(xxvviii) the fixed asset ledger actual possession of the Companies as of the last day of the most recent calendar month ending at least 30 days prior or unfettered access to the ClosingAcquired Assets.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused Buyer and Atlas will deliver to be delivered, to Stockholder Representative or Seller the Exchange Agentfollowing duly executed documents and other items:
(i) the Escrow Employment Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14Security Agreement;
(iii) a an officer’s certificate to the effect that each of the Secretary of each Buyer Party, dated the Closing Date, conditions specified in form Section 7.2(a) and substance reasonably satisfactory to HoldCo, certifying as to: Section 7.2(b) are satisfied;
(iiv) the Charter Documents of such Buyer Party, Cash Payment;
(ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iiiv) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyNote; and
(ivvi) any other items or certificates described in Section 5.3 belowthe Shares.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Intellectual Property Purchase Agreement (Atlas Therapeutics Corp), Intellectual Property Purchase Agreement (Atlas Therapeutics Corp)
Deliveries at Closing. At Closing the parties shall deliver to each other the documents and items indicated below:
(a) At or prior Seller shall deliver to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesBuyer:
(i) An appropriate “Seller’s Affidavit” or other reasonably acceptable evidence attesting to the absence of liens, lien rights, rights of parties in possession (Aother than Tenant) a trueand other encumbrances arising under Seller (other than the Permitted Exceptions) naming both Buyer and Title Company as benefited parties, complete and correct copy so as to enable Title Company to delete the “standard” exceptions for such matters from Buyer’s owner’s policy of title insurance for each of the written consent or other agreement from respective Premises and otherwise insure any “gap” period occurring between the Stockholders, representing approval by Closing and the holders of at least 98% recordation of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;closing documents.
(ii) the Escrow Agreement, A duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from Special Warranty Deed with respect to each of the Premises, subject to no exceptions other states in which any of than the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the CompaniesExceptions, in substantially the form attached hereto as Exhibit D;E, and otherwise as approved by the Title Company and revised as needed to conform to the requirements of state law for the state in which each of the Premises are located.
(iii) Two executed duplicate originals of the Lease and a recordable Lease Memorandum for each Premises.
(iv) One original of the Guaranty.
(v) Duly executed counterparts of the closing statement.
(vi) An appropriate FIRPTA Affidavit or Certificate by Seller, evidencing that Seller is not a foreign person or entity under Section 1445(f)(3) of the Internal Revenue Code, as amended.
(vii) All certificates of insurance, insuring Buyer as the owner of each of the Premises, which are required by the Lease for such Premises to be furnished by the Tenant to the landlord.
(viii) The representations and warranties of Seller set forth in Section 11 hereof shall be true, correct and complete in all material respects on and as of the Closing Date.
(ix) The financial condition of Tenant, Guarantor and Seller shall not have deteriorated at any time during the term of this Agreement, and in any event none of those parties shall file or have filed against it a petition seeking relief under the bankruptcy or other similar laws of the United States or any state thereof.
(x) Buyer shall have received the Title Commitment for each of the Premises “marked-up” and effectively dated as of the Closing, deleting all requirements thereunder so as to obligate the Title Company unconditionally to issue to Buyer an original owner’s policy of title insurance for all of the Properties in the amount of the aggregate Purchase Price subject only to the Permitted Exceptions. In the event there is more than one Buyer, one policy will be issued for all Properties purchased by that Buyer and the insured amount shall be the aggregate Purchase Price of only those Properties.
(xi) An appropriate “No Change” affidavit and any other documents required by the Title company to delete the standard survey exceptions noted on the Title Commitment.
(xii) Copies of any current leases that affect any of the Premises.
(xiii) Evidence of authority for the individual signing on behalf of Tenant and any other corporate documents reasonably requested by Buyer and/or Title Company.
(xiv) documentary evidence Two executed duplicate originals of the termination an assignment of the Casino Management Seller’s interest, rights and obligations of this Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreementfrom Stripes LLC to Town & Country Food Stores, each Inc., in a form and substance reasonably satisfactory acceptable to Buyer Parties;Buyer.
(xv) evidence, in form Such other closing documents as are reasonably necessary and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request proper in order to effectuate consummate the consummation of the Merger or the transactions transaction contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingthis Agreement.
(b) At the Closing, Parent and/or OperatorBuyer shall deliver to Seller or Tenant, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) The Purchase Price, less all the Escrow Agreementdeductions, duly executed by Parent prorations, and Operator;credits provided for herein.
(ii) Two executed duplicate originals of the Parent Closing Merger Consideration (in the case of Parent) Lease and the Operator Closing Merger Consideration (in the case of Operator), in a recordable Lease Memorandum for each case in accordance with Section 1.14;Premises.
(iii) a certificate Duly executed counterparts of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; andclosing statement.
(iv) any Such other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further closing documents as may be are reasonably requested by the other Parties necessary and proper in order to effectuate consummate the consummation of the Merger or the transactions transaction contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingthis Agreement.
Appears in 2 contracts
Sources: Real Estate Purchase and Sale Contract, Real Estate Purchase and Sale Contract (Susser Holdings CORP)
Deliveries at Closing. (a) 5.1 Items to be Delivered by E-biz. At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, E-biz will deliver or cause to be delivered to WorkPlace Compliance and Shareholders the following:
(a) Minutes of a meeting of the Board of Directors of E-biz authorizing the issuance of certificates totaling 5,832,709 E-biz Shares registered in the names of the Shareholders as shown on Exhibit "A".
(b) A certificate executed and/or delivered, to Buyer Partiesby a duly authorized officer of E-biz certifying that:
(i) (A) a true, complete The representations and warranties in Section 4 hereof are true and correct copy in all material respects as of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”)Closing; and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;and
(ii) That the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates person signing this Agreement on behalf of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified E-biz is authorized to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by sign this Agreement and the execution, other documents to be delivered hereunder on behalf of E-biz.
(c) True and complete copies of the resolutions duly and validly adopted by the Board of Directors of E-biz evidencing their authorization of the execution and delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofhereby; and
(xxvd) Stock certificates covering the fixed asset ledger E-biz Shares to be delivered to Shareholders pursuant to this Agreement.
5.2 Items to be Delivered by WPCI and Shareholders. At the Closing, WPCI and Shareholders will deliver or cause to be delivered to E-biz the following:
(a) Stock certificates representing all 5,832,709 of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.issued and outstanding WPCI Shares endorsed in blank or accompanied by appropriate stock powers;
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange AgentCertificates executed by duly authorized officers of WPCI certifying that:
(i) The representations and warranties of WPCI in Section 3 hereof are true and correct in all material respects as of the Escrow Agreement, duly executed by Parent and Operator;Closing; and
(ii) the Parent Closing Merger Consideration (in the case The person signing this Agreement on behalf of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory WPCI are authorized to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by sign this Agreement and the execution, delivery and performance other documents to be delivered hereunder on behalf of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowWPCI.
(c) Each Party True and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things complete copies of the resolutions duly and execute (or cause to be executed) all such further documents as may be reasonably requested validly adopted by the other Parties in order to effectuate Board of Directors of WPCI evidencing their authorization of the execution and delivery of this Agreement and the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closinghereby.
Appears in 2 contracts
Sources: Stock Exchange Agreement (Workplace Compliance Inc), Stock Exchange Agreement (Workplace Compliance Inc)
Deliveries at Closing. At Closing the parties shall deliver to each other the documents and items indicated below:
(a) At Seller shall deliver or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause caused to be executed and/or delivered, delivered to Buyer PartiesBuyer:
(i) An appropriate Seller’s Affidavit or other reasonably acceptable evidence attesting to the absence of liens, lien rights, rights of parties in possession (Aother than Tenant) a trueand other encumbrances arising under Seller (other than the Permitted Exceptions) naming both Buyer and Title Company as benefited parties, complete and correct copy so as to enable Title Company to delete the “standard” exceptions for such matters from Buyer’s owner’s policy of title insurance for each of the written consent or other agreement from respective Premises and otherwise insure any “gap” period occurring between the Stockholders, representing approval by Closing and the holders of at least 98% recordation of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;closing documents.
(ii) the Escrow Agreement, A duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from Special Warranty Deed with respect to each of the Premises, subject to no exceptions other states in which any of than the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the CompaniesExceptions, in substantially the form attached hereto as Exhibit D;E, and otherwise as approved by the Title Company and revised as needed to conform to the requirements of state law for the state in which each of the Premises are located.
(xiviii) documentary evidence Two executed duplicate originals of the termination Lease and a recordable Lease Memorandum for each Premises.
(iv) Two executed duplicate originals of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;Guaranty.
(xvv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event Duly executed counterparts of default exists under the Margaritaville Agreement;closing statement.
(xvivi) executed affidavits for all Real Property substantially in An appropriate FIRPTA Affidavit or Certificate by Seller, evidencing that Seller is not a foreign person or entity under Section 1445(f)(3) of the form Internal Revenue Code, as amended.
(vii) All certificates of Exhibit E attached heretoinsurance, and such other affidavits relating to the New Title Policy insuring Buyer as the Title Insurer may reasonably request;
(xvii) originals or copies owner of all Leases and all amendments thereto and other supplements relating thereto and copies each of correspondence relating thereto, in each casethe Premises, which are in HoldCo’s possession or control;required by the Lease for such Premises to be furnished by the Tenant to the landlord.
(xviiiviii) originals or copies of all material certificates, permits, licenses Such other closing documents as are reasonably necessary and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request proper in order to effectuate consummate the consummation of the Merger or the transactions transaction contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingthis Agreement.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused Buyer shall deliver to be delivered, to Stockholder Representative or the Exchange AgentSeller:
(i) The Purchase Price, less all the Escrow Agreementdeductions, duly executed by Parent prorations, and Operator;credits provided for herein.
(ii) Two executed duplicate originals of the Parent Closing Merger Consideration (in the case of Parent) lease for each Premises and the Operator Closing Merger Consideration (in the case of Operator), in a recordable Lease Memorandum for each case in accordance with Section 1.14;Premises.
(iii) a certificate Duly executed counterparts of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; andclosing statement.
(iv) any Such other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further closing documents as may be are reasonably requested by the other Parties necessary and proper in order to effectuate consummate the consummation of the Merger or the transactions transaction contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingthis Agreement.
Appears in 2 contracts
Sources: Real Estate Purchase and Sale Contract (Commercial Net Lease Realty Inc), Real Estate Purchase and Sale Contract (Commercial Net Lease Realty Inc)
Deliveries at Closing. At the Closing:
(a) At or prior Buyer shall pay to Seller, by wire transfer of immediately available funds to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, account designated by Seller in writing to Buyer Parties:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby three (collectively, the “Written Consent”); and (B3) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day Days prior to the Closing, the Closing Transaction Expenses CertificateEstimated Purchase Price less the Escrow Amount;
(viib) at least one Business Day prior Seller shall deliver to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, Buyer a duly executed certificate of non-foreign status in the form and manner contemplated in that complies with Section 1.17(a1445 of the Code and the Treasury Regulations promulgated thereunder (a “FIRPTA Certificate”);
(ixc) Seller shall deliver to Buyer the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e)Required Consents;
(xd) those consents or approvals identified on Schedule 1.19(a)(x)Seller shall deliver to Buyer evidence of the Tail Policy which will be in effect as of the Closing;
(xie) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance Seller shall deliver to Buyer evidence reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date full and (iv) complete discharge and release of all guarantees, including under the resolutions of Holdings Credit Agreement, given by the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a partyCompany;
(xiif) evidence, in form and substance Seller shall deliver to Buyer evidence reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, of the termination and no Company shall have any remaining obligations thereunderextinguishment of the Fifth Street EIV Side Letter;
(xiiig) resignations (which Each Party shall include a release of all claims by the applicable director or officer against deliver to each Company) of the directors and officers of other Party, as applicable, each of the Companiesdocuments, in substantially the form attached hereto as Exhibit Ditems and certificates required to be delivered by such Party pursuant to Article VIII of this Agreement;
(xivh) documentary Seller shall deliver to Buyer evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery full and complete withdrawal by Seller as a member of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofCompany; and
(xxvi) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has deliveredEach Party shall deliver, or caused shall cause to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer other Party, dated as applicable, all other previously undelivered documents or statements required to be delivered by such Party to another Party at the Closing Date, in form and substance reasonably satisfactory pursuant to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowAgreement.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Purchase Agreement (Fifth Street Asset Management Inc.), Purchase Agreement (NewStar Financial, Inc.)
Deliveries at Closing. (a) At or prior Closing, the Vendor shall deliver the following to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesPurchaser:
(i) (A) a trueGeneral Conveyance, complete and correct copy of in the written consent or other agreement from the Stockholdersform attached as Schedule "B", representing approval which has been executed by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentVendor;
(ii) all specific assignments, registrable transfers, novation agreements, trust agreements and other instruments reasonably requested by the Escrow AgreementPurchaser at least 3 business days prior to Closing and which are required to convey the Vendor's interest in the Assets to the Purchaser, duly unless and to the extent that the Purchase allows the Vendor to deliver such documents to the Purchaser at a later date, provided that such documents shall not be required to be executed by Stockholder Representativeany third parties and shall not require the Vendor to assume or incur any obligation, or to provide any representation or warranty, beyond that contained in this Agreement;
(iii) certificates copies of good standing, dated as all waivers of rights of first refusal obtained by the Vendor with respect to the sale of the Closing Date (or, as necessary, Assets to the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonPurchaser;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness one complete copy of the Companies (the “Closing Indebtedness”)Vendor's records, which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); providedland, howeverlease, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related contract correspondence and other files and reports and data pertaining to the operation of the Casino in the Ordinary Course of BusinessAssets, insofar as such delivery is permitted and required hereunder;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”certificates required by Paragraphs 8.1(d), in form and substance reasonably satisfactory to Buyer Parties;; and
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy documents as the Title Insurer may reasonably request;
(xvii) originals be specifically required hereunder or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties Purchaser upon reasonable notice to the Vendor.
(b) At Closing, the Purchaser shall deliver the following to the Vendor:
(i) the Purchase Price, any applicable goods and services tax in order to effectuate accordance with Clause 2.3;
(ii) a General Conveyance, in the consummation of the Merger or the transactions contemplated form attached as Schedule "B", which has been executed by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or Purchaser;
(iii) the certificate required by Paragraph 8.2(b);
(iv) such other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions documents as the requesting Party may reasonably determine to be necessary either before, at or following the Closingspecifically required hereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Stone Canyon Resources LTD), Asset Purchase Agreement (Terra Nostra Resources LTD)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to Parties hereby agree that the Closing, following acts shall be taken and the Closing Indebtedness Certificate;
(viii) the Closing Certificatefollowing deliveries shall be made, in the manner contemplated in Section 1.17(a);order reflected below:
(ixa) the Consideration SpreadsheetEach of CRM, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each CompanyCRM CA, dated the Closing DateEimar, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation Twin Bridges and the Agreement Among Investors (ii) that there Existing Shareholders shall have been no amendments furnished or caused to be furnished to U.S. counsel and Bermuda counsel to CRM Holdings and to the Underwriters such certificates as to such Charter Documents, the Certificate of Designation matters as such counsel or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer Underwriters may reasonably request;
(xviib) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms Each of the Leases;
(xx) Existing Shareholders shall contribute the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments membership interests in CRM and Eimar owned by him as Buyer Parties may reasonably request in order shown on Exhibit A-1 to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case CRM USA Holdings in accordance with Section 1.141.2 hereof. In exchange for such membership interests in CRM and Eimar, CRM USA Holdings shall issue CRM USA Holdings Common Stock to the Existing Shareholders in accordance with Section 1.2 hereof, credited as fully paid and non-assessable, and deliver to the Existing Shareholders duly executed share certificates representing such CRM USA Holdings Common Stock registered in their respective names;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each of the Existing Shareholders shall contribute his shares of CRM USA Holdings Common Stock received pursuant to 5.2(b) hereof to CRM Holdings in accordance with Section 1.3 hereof. In exchange for such shares of CRM USA Holdings Common Stock, CRM Holdings shall issue CRM Holdings Common Shares and CRM Holdings Class B Shares to the Existing Shareholders in accordance with Section 1.3 hereof, credited as fully paid and non-assessable, and deliver to the Existing Shareholders duly executed share certificates representing such CRM Holdings Common Shares and CRM Holdings Class B Shares registered in their respective names;
(d) Each of the Existing Shareholders shall contribute the Twin Bridges Common Shares owned by him as shown on Exhibit A-3 to CRM Holdings in accordance with Section 2.1 hereof. In exchange for such Twin Bridges Common Shares, CRM Holdings shall issue CRM Holdings Common Shares and CRM Holdings Class B Shares to the Existing Shareholders in accordance with Section 2.1 hereof, credited as fully paid and non-assessable, and deliver to the Existing Shareholders duly executed share certificates representing such CRM Holdings Common Shares and CRM Holdings Class B Shares registered in their respective names;
(e) CRM shall distribute all of the membership interests in CRM CA it owns to CRM USA Holdings;
(f) CRM Holdings shall issue separate share certificates representing the CRM Holdings Common Shares and the CRM Holdings Class B Shares issued pursuant to Section 5.2(c) hereof, and the CRM Holdings Common Shares and the CRM Holdings Class B Shares issued pursuant to Section 5.2(d) hereof;
(g) CRM Holdings shall purchase from Reid Finance Limited the 1,200,000 CRM Holdings Common Shares held by ▇▇▇▇ Finance Limited for US$12,000;
(h) Each Existing Sharehold▇▇ ▇r Village Holdings, as the case may be, shall sign the Form 8832 for CRM and Eimar, and CRM shall sign the Form 8832 for CRM CA, and each Existing Shareholder, Village Holdings and CRM shall sign all other forms requested by CRM Holdings; and
(i) Each Party and its Representatives hereto shall take (or cause to be taken) all deliver such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further other documents as may be reasonably requested by the any other Parties in order to effectuate the consummation of the Merger Party hereto or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment Underwriters or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party their respective counsel may reasonably determine to be necessary either before, at or following the Closingrequest.
Appears in 2 contracts
Sources: Reorganization Agreement (CRM Holdings, Ltd.), Reorganization Agreement (CRM Holdings, Ltd.)
Deliveries at Closing. (a) At Buyers’ Parent shall have delivered or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause caused to be delivered to Sellers’ Representative the following documents, each properly executed and/or delivered, to Buyer Parties:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (orDate, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory acceptable to Buyer Parties with respect to all Indebtedness of Sellers’ Representative:
(a) the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be Tredegar Brasil Deliverables set forth on Schedule 1.19(a)(iv); provided, however, that this in Section 1.19(a)(iv) shall not be deemed to require discharge 2 of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessExhibit D;
(vb) documentary evidence the Tredegar India Interests Purchase Agreement and the documents and instruments set forth in Section 2.4 thereunder that are required to be delivered at Closing in order to effect the purchase and sale of the release Tredegar India Interests and discharge the transfer of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting legal ownership of the Companies, except for Permitted Liens or Permitted Encumbrances, Nominee Interest as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Partiescontemplated thereby;
(vic) at least one Business Day prior a certificate of an authorized officer of Buyers’ Parent certifying as to the Closing, satisfaction of the Closing Transaction Expenses Certificateclosing conditions set forth in Sections 9.1 and 9.2;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xid) a certificate of the Secretary secretary or other authorized officer of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, Buyers’ Parent certifying as to: (i) the Charter accuracy and completeness of attached copies of the Organizational Documents of such Companyeach Buyer certified by the applicable Governmental Authority as of a recent date, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the equityholders of Buyers, if required, and the board of directors or the board of each Company managers, as applicable, of Buyers authorizing and approving the transactions contemplated by this Agreement execution and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to by Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto other agreements contemplated hereby, the performance of Buyers’ obligations hereunder and other supplements relating thereto thereunder and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated hereby and thereby;
(e) instruments necessary to effect the replacement, effective as of Closing, of the directors, managers and officers, as applicable, of the Target Companies and Target Subsidiaries set forth on Annex 8.5(h), including, as required by applicable Law, resolutions of the Transaction governing bodies of a Target Company or any Target Subsidiary and amendments to applicable Organizational Documents;
(xxiif) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofEscrow Agreement; and
(xxvg) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingTransition Services Agreement.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Tredegar Corp), Purchase and Sale Agreement (Tredegar Corp)
Deliveries at Closing. The purchase and sale of the Property contemplated by this Agreement shall be closed by Seller's delivery of a properly executed special warranty deed conveying good and marketable fee simple title to the Property to Purchaser (the "Deed"), subject only to the Permitted Exceptions, and the payment by Purchaser of the Purchase Price for the Property in the manner provided in Section 3 hereof. Seller shall also execute and deliver to Purchaser:
(a) At or prior An Assignment and Assumption Agreement in form reasonably acceptable to Purchaser and Seller, whereby the ClosingLease shall be assigned by Seller to Purchaser, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:and assumed by Purchaser;
(ib) A duly executed closing statement, itemizing all credits between Seller and Purchaser;
(Ac) a true, complete and correct copy A duly executed affidavit of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal title with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated Property and such other agreements as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified may be necessary to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory cause Title Company to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form the Title Commitment and substance reasonably satisfactory to Buyer Partiesissue the Title Policy with an effective date on the date of recording of the Deed;
(xvd) evidenceA duly executed certificate with respect to Section 1445 of the Internal Revenue Code of 1986, in form and substance reasonably satisfactory to Buyer Partiesas amended, stating, among other things, that Margaritaville has confirmed that no event of default exists under Seller is not a foreign corporation or non-resident alien, as defined in the Margaritaville AgreementCode and regulations issued pursuant thereto;
(xvie) executed affidavits for A real estate reporting transferor identification, showing Seller's correct federal tax identification number, to enable the closing attorneys to complete and file the required IRS Form 1099-S;
(f) Physical possession of all Real Property substantially in the form of Exhibit E attached heretoProperty, and such other affidavits relating subject to the New Title Policy Lease and the Permitted Exceptions;
(g) Such evidence as the Title Insurer may Company shall reasonably requestrequire as to the authority of the parties acting on behalf of Seller to enter into this Agreement and to discharge the obligations of Seller pursuant hereto;
(xviih) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
The Estoppel Certificate executed by Tenant (xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case Seller shall use best efforts to the extent relating to the Real Property and are in HoldCo’s possession or controldeliver at Closing);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Blue Ridge Real Estate Co), Purchase and Sale Agreement (Blue Ridge Real Estate Co)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliverthe Shareholders will deliver to the UBL, as applicable, or cause to be executed and/or delivered, to Buyer Partiesthe following documents:
(i) the Contingent (ATax) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Loan Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit DD (the "Loan Agreement"), duly executed by Blum;
(xivii) documentary evidence the Employment Agreement to be entered into by and between the Corporation and Scot▇ ▇▇▇▇ ▇▇ substantially the form attached hereto as Exhibit E (the "Blum ▇▇▇loyment Agreement"), duly executed by Blum;
(iii) the Employment Agreement to be entered into by and between the Corporation and Robe▇▇ ▇▇▇▇▇ ▇▇ substantially the form attached hereto as Exhibit F (the "Sche▇ ▇▇▇loyment Agreement"), duly executed by Robe▇▇ ▇▇▇▇▇;
(iv) the Third Amendment to the Operating Agreement of the termination UBL in substantially the form attached hereto as Exhibit G (the "Third Amendment"), duly executed by Blum;
(v) an executed copy of the Casino Management Amendment to the Amended and Restated Articles of Incorporation of the Corporation in substantially the form attached hereto as Exhibit H, certified as filed as of the date of this Agreement by the Secretary of State of the State of Washington (the "Amended Articles");
(vi) certificates representing the Shares, duly endorsed for transfer, or with appropriate stock powers attached and properly signed, and other good and sufficient instruments of transfer reasonably satisfactory in form and substance to the UBL as shall be effective to vest in the UBL all of the Shareholders' right, title and interest in and to such Shares, free and clear of all claims, liens, security interests, restrictions, pledges and encumbrances of any kind;
(vii) certificates of good standing (with tax) showing that the Corporation is organized and in good standing in its jurisdiction of organization;
(viii) copies of the organizational documents of the Corporation certified by the Secretary of State of the State of Washington (and including the Amended Articles);
(ix) a certificate or certificates executed by the Shareholders, certifying that the representations and warranties of such individuals are true and correct in all respects on the Closing Date, that all covenants, agreements and conditions contained in this Agreement to be performed or complied with by each on or before the Closing Date shall have been so performed or complied with, certifying the organizational documents of the Corporation specified in (viii) above, and further certifying the names and signatures of such individuals authorized to sign this Agreement and such certificate and the St. Ancillary Agreements;
(x) copies of the release of claims statements (in each case with executed receipts), each in the form attached hereto as Exhibit I, duly executed by each of Dave ▇▇▇▇▇, ▇▇ro▇▇ ▇▇▇▇▇, ▇▇ex ▇▇▇▇▇, ▇▇ll▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Robe▇▇ ▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;▇▇▇; ▇▇d
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvixi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies receipts evidencing each of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate such Shareholder's receipt from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation UBL of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner that amount of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions cash set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments next to such Charter Documents and that such Charter Documents are in full force and effect as of Shareholder's name on the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowsignature page hereto.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Exchange Agreement (Artistdirect Inc), Exchange Agreement (Artistdirect Inc)
Deliveries at Closing. At Closing, Seller shall deliver the following documents to Purchaser, which documents shall be duly executed and acknowledged, as appropriate:
(a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), A special warranty deed for the Companies Premises, properly executed and in their respective jurisdiction(s) of organization and from each of proper form for recording so as to convey the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated title required by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;A.
(xivb) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇A ▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory of sale to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Personal Property substantially in the form of Exhibit E B attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party All Leases and Short Term Agreements in Seller's possession, together with an Assignment and Assumption of Leases, Short Term Agreements, and Security Deposits in the form attached hereto as Exhibit C which includes a schedule of all cash security deposits and prepaid rents and a credit to Purchaser in the amount of such security deposits including any interest thereon, held by or on behalf of Seller on the Closing under the Leases, together with an assignment of such deposits and prepaid rents to Purchaser.
(d) All Service Contracts and permits in Seller's possession which are in effect on the day of Closing and which are not terminable by Seller on or before Closing together with an Assignment and Assumption of Service Contracts and Permits in the form attached hereto as Exhibit D.
(e) An assignment of all transferable warranties and guarantees then in effect, if any, with respect to the Premises or any repairs or renovations to such Improvements and Personal Property being conveyed 20 hereunder together with an assignment of any contract rights, general intangibles, transferable permits and licenses and Trade Names owned by or inuring to the benefit of Seller in connection with the Premises other than trademarks, trade names, slogans, logos, insignias, including those of Seller, the general partners of Seller, Seller's or its Representatives shall take general partners' parent companies or affiliates unless such trade names are used solely in connection with the operation of the Premises, in the form of the Assignment of Intangibles and Trade Names attached hereto as Exhibit E.
(f) To the extent they are then in Seller's possession and not posted at the Premises, any permits issued for or cause with respect to the Premises by governmental and quasi-governmental authorities having jurisdiction.
(g) The Tenant Estoppels received by Seller pursuant to Section 0.
(h) A statement of the Seller's nonforeign status pursuant to Section 1445 of the Internal Revenue Code.
(i) All Tenant files and records on site at the Premises, excluding proprietary information of Seller.
(j) A form letter drafted by Purchaser, reasonably approved and executed by Seller or by its agent, advising the Tenants of the sale of the Premises, and transfer of security deposits, to Purchaser and directing that rents and other payments thereafter be sent to Purchaser or as Purchaser may direct.
(k) A form letter drafted by Purchaser, reasonably approved and executed by Seller or by its agent, advising the vendors under the Service Contracts of the sale of the Premises.
(l) An assignment and assumption of all Operating Agreements, in the form attached hereto as Exhibit I.
(m) Any other documents required by this Agreement to be taken) all such further actions, do (delivered by Seller or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties required in order to effectuate the consummation of the Merger or consummate the transactions contemplated by the Transaction Documents. If hereby, including closing instructions and a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingsettlement statement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Macerich Co), Purchase and Sale Agreement (Macerich Co)
Deliveries at Closing. At the Closing:
(a) At or prior Sellers will deliver to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesBuyer:
(i) (A) a trueEmployment Agreements, complete as set forth in Exhibit A and correct copy of the written consent or other agreement from the StockholdersB executed by ▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentrespectively;
(ii) certificates representing the Escrow AgreementMedEx Stock and the Pegasus Stock, duly executed by Stockholder Representativeincluding the shares pledged to Buyer as security for the Bridge Loans, as defined in Section 5.1(b), which certificates shall be endorsed in favor of Buyer;
(iii) certificates of good standing, dated as of evidencing all necessary director and shareholder consents from the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonAcquired Companies;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness certified copies of the Companies (the “Closing Indebtedness”)Articles of Incorporation and bylaws, which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); providedincluding any amendments thereto, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Businesseach Acquired Company;
(v) documentary evidence certificates of the release good standing for each Acquired Company from Louisiana and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), other jurisdictions in form and substance reasonably satisfactory to Buyer Parties;which each Acquired Company conducts business; and
(vi) at least one Business Day prior a certificate executed by Sellers representing and warranting to Buyer that each of the Closing, Sellers' representations and warranties in Article 3 were accurate in all material respects as of the date of the Closing Transaction Expenses Certificate;as if made on such date.
(viib) at least one Business Day prior Buyer will deliver to the Closing, the Closing Indebtedness Certificate;Founders:
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) certificates issued in the Charter Documents names of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇. ▇▇▇▇▇▇▇ , ▇▇. ▇▇▇ Agreement, each and their designees representing shares of RTIN Common Stock in form and substance reasonably satisfactory to Buyer Partiesthe amounts set forth in Section 2.2;
(xvii) evidence, in form certificates evidencing all necessary director and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under shareholder consents from the Margaritaville AgreementBuyer;
(xviiii) executed affidavits for all Real Property substantially in certified copies of the form Articles of Exhibit E attached heretoIncorporation and bylaws, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably requestincluding any amendments thereto, of Buyer;
(xviiiv) originals or copies certificates of all Leases good standing for Buyer from Texas and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, jurisdictions in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofconducts business; and
(xxvv) the fixed asset ledger a certificate executed by Buyer representing and warranting to Founders that each of the Companies Buyer's representations and warranties in Article 4 were accurate in all material respects as of the last day date of the most recent calendar month ending at least 30 days prior to the ClosingClosing as if made on such date.
(bc) At Buyer will deliver to the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange AgentAcquired Companies:
(i) the Escrow Agreementpromissory notes evidencing the Bridge Loans, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (as defined in the case of Parent) and the Operator Closing Merger Consideration (in the case of OperatorSection 5.1(b), in each case in accordance with Section 1.14;
(iii) a certificate partial satisfaction of the Secretary of each Buyer Party, dated the Closing Date, in form its Required Capital Contribution as set forth and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described defined in Section 5.3 below5.1(a).
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Restaurant Teams International Inc), Stock Purchase Agreement (Restaurant Teams International Inc)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliverthe Company, Bancorp or the Shareholders, as applicableappropriate, shall deliver or cause to be executed and/or delivered, delivered to Buyer PartiesParent:
(ia) (A) a truecertificates representing all the Shares, complete free and correct copy clear of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentall Liens;
(iib) the Escrow Registration Rights Agreement, duly executed by Stockholder Representativethe Shareholders who are a party hereto;
(iiic) certificates of good standingfrom ▇▇▇ ▇▇▇▇▇▇ LLP, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related counsel to the operation Company, an opinion of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Companysuch counsel, dated the Closing Date, in form and substance reasonably satisfactory acceptable to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminatedParent, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Agreement▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidenceP.A., in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating counsel to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies Bancorp, an opinion of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Partycounsel, dated the Closing Date, in form and substance reasonably satisfactory acceptable to HoldCo, certifying as to: Parent;
(id) the Charter Documents written resignation of such Buyer Partyeach member of the Board of Directors and to the extent requested by Parent, each officer of the Company and its Subsidiaries identified by Parent;
(iie) that there have been no amendments all consents and approvals from Governmental Authorities;
(f) a certificate of good standing of the Company and its Subsidiaries, dated within five (5) Business Days of the Closing Date, from the New Jersey Secretary of State;
(g) all share transfer books, minute books and other corporate records of the Company and its subsidiaries;
(h) a copy, certified by the Secretary of the Company to such Charter Documents be true, complete and that such Charter Documents are in full force and effect correct as of the Closing Date Date, of the articles or certificate of incorporation, bylaws and resolutions of the shareholders and board of directors of the Company, authorizing and approving the transactions contemplated hereby and the incumbency of certain officers;
(iiii) a copy, certified by the Secretary of Bancorp to be true, complete and correct as of the Closing Date, of the resolutions of the board of directors (or equivalent governing body) of each Buyer Party Bancorp, authorizing and approving the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; andhereby;
(ivj) any the certificate required to be delivered pursuant to Section 7.1;
(k) such other items customary documents, instruments or certificates described in Section 5.3 below.
(c) Each Party and its Representatives as shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by Parent and as shall be consistent with the other Parties in order to effectuate the consummation terms of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingthis Agreement.
Appears in 1 contract
Deliveries at Closing. At the Closing and as a condition to Closing:
3.1.1. Dolfin will deliver to SSI:
(a) At a certificate or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (orand signed on Dolfin's behalf by its Secretary, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as toeffect that: (i) the Charter Documents resolutions of such Companythe Board of Directors of Dolfin authorizing the actions taken in connection with these transactions were duly adopted at a duly convened meeting thereof, the Certificate of Designation at which a quorum was present and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documentsacting throughout, the Certificate of Designation or the Agreement Among Investorsby unanimous written consent, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are remain in full force and effect effect, and have not been amended, rescinded or modified; (ii) the officers or other individuals executing this Agreement are incumbent officers or otherwise duly authorized to execute such agreements and documents on behalf of Dolfin and the specimen signatures on such certificate are their genuine signatures; (iii) each of the representations and warranties of Dolfin contained in Article 5 hereof is true and correct as of the Closing Date; and
(b) A Bill of Sale, duly e▇▇▇▇ted by Dolfin, in the form of Schedule 3.1.1 attached hereto (the "Bill of Sale"); and
(c) A Lockup/Leak Out Agreement, duly executed by Dolfin in the form of Schedule 2.6 attached hereto
3.1.2. SSI shall deliver to Dolfin:
(a) A stock certificate for the Common Shares; and
(b) A certificate or certificates dated as of the Closing Date and signed on behalf of SSI by its Secretary to the effect that: (ivi) the resolutions of the board Board of directors Directors of each Company SSI authorizing the actions taken in connection with these transactions contemplated were duly adopted at a duly convened meeting thereof, at which a quorum was present and acting throughout, or by unanimous written consent, remain in full force and effect, and have not been amended, rescinded or modified; (ii) the officers or other individuals executing this Agreement are incumbent officers or otherwise duly authorized to execute such agreements and documents on behalf of such party and the execution, delivery specimen signatures on such certificate are their genuine signatures; (iii) each of the representations and performance warranties of this Agreement SSI contained in Article 4 hereof is true and each Transaction Document to which such Company is a partycorrect as of the Closing Date;
(xiic) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇An Opinion from Morse Zelnick Rose a▇▇ ▇▇n▇▇▇, ▇▇▇'▇ Agreement▇ounse▇, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially ▇▇▇stantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing3.1.2.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Deliveries at Closing. At the Closing:
(a) At or prior There shall be delivered to the Closing, HoldCo shall execute and/or deliver, Company;
(i) Certificates of Good Standing of Purchaser and each Subsidiary;
(ii) Certified Resolutions of the Boards of Directors of Purchaser and each Subsidiary approving all transactions contemplated hereby;
(iii) Executed Certificates required by Section 6.3(d);
(iv) The Consulting Agreement;
(v) The Non-Competition Agreement;
(vi) Opinion of Purchaser's counsel in the form attached as applicable, or cause Exhibit N;
(vii) The Security Agreement and all documents required to be executed and/or deliveredand delivered thereunder;
(viii) The Pledge Agreement and all documents required to be executed and delivered thereunder;
(ix) The Guaranty;
(x) The Third Party Pledge Agreements and all documents required to be executed and delivered thereunder;
(xi) Collateral Assignment of Insurance;
(xii) Collateral Assignment of the Notes Receivable;
(xiii) Deed of Trust - California Real Property;
(xiv) Assignments of Deed of Trust - Colorado Real Properties;
(xv) The cash portion of the Purchase Price;
(xvi) The Promissory Notes; and
(xvii) All other documents reasonably requested by the Company and its counsel as shall be necessary for the Company to perfect a first lien security interest in and to the Collateral, except for the Colorado Spice Security Interests.
(b) There shall be delivered to Buyer PartiesPurchaser:
(i) (A) a true, complete and correct copy Certificate of good standing of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentCompany;
(ii) Certified resolutions of the Escrow Agreement, duly executed by Stockholder RepresentativeBoard of Directors of the Company approving all transactions contemplated hereby;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable dateExecuted Certificates required by Section 6.2(d), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness Opinion of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino Company's counsel in the Ordinary Course of Businessform attached as Exhibit O;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer PartiesConsulting Agreement;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;Non-Competition Agreement; and
(vii) at least one Business Day prior to the ClosingAll applicable assignments, the Closing Indebtedness Certificate;
(viii) the Closing Certificatematerial consents and other conveyance documents, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) including a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreementof Sale and General Assignment, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event Assignment of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially Trademark in the form of Exhibit E attached hereto, as Exhibits "P" and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request"Q" respectively;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause of the parties agree to be taken) all such further actions, do (or cause to be done) all such further things cooperate with the other and execute (or cause and deliver to be executed) all the other party such further other instruments and documents and take such other actions as may be reasonably requested requested, from time to time, by any other party as necessary to carry out, evidence and confirm the other Parties in order to effectuate the consummation intended purposes of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingthis Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Action Products International Inc)
Deliveries at Closing. (a) At or prior to the ClosingClosing Time, HoldCo the Sellers’ Representative shall execute and/or deliver, as applicable, deliver (or cause to be executed and/or delivered, ) to Buyer Parties:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby Purchasers (collectively, the “Written ConsentSeller Deliverables”); and ):
(Bi) true, complete and correct copies all certificates representing ownership of the executed Letters FB Shares and the FB USA Shares, duly endorsed for transfer or with stock powers of Transmittal with respect attorney acceptable to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentPurchasers;
(ii) a transfer document evidencing the transfer of the Logistics Sold Shares to US Purchaser, duly executed by each party thereto;
(iii) the Employment Agreements, duly executed by each party thereto other than FB;
(iv) the Releases, duly executed by each party thereto;
(v) the Non-Competition, Non-Solicitation and Confidentiality Agreement, duly executed by each party thereto other than the Purchasers;
(vi) the Lockup Agreements, duly executed by each party thereto other than the Purchasers; and
(vii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of each party thereto other than the Closing Date (or, as necessary, Purchasers and the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness CertificateEscrow Agent;
(viii) an intellectual property assignment transferring the Closing CertificateIntangible Assets to US Purchaser (the “IP Transfer”), in the manner contemplated in Section 1.17(a)duly executed by FB;
(ix) a certificate of the Consideration SpreadsheetSeller Parties signed by the Sellers’ Representative certifying, in as complete and accurate as of the manner contemplated in Section 1.14(e)Closing, attached copies of the Organizational Documents of the Companies and the Subsidiaries, certifying and attaching all requisite resolutions or actions of the Seller Parties approving the execution and delivery of this Agreement and the consummation of the Transactions, as available, and certifying to the incumbency and signatures of the officers of the Seller Parties executing this Agreement and any other documents relating to the Transactions;
(x) those consents a reasonably current certificate of existence or approvals identified on Schedule 1.19(a)(x)good standing (as applicable) for each Company and Subsidiary issued by the relevant authority of the province or other jurisdiction of incorporation or formation;
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance documentation reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company Purchasers authorizing the transactions contemplated by this Agreement and the execution, delivery and performance release of this Agreement and each Transaction Document all Liens (other than Permitted Liens) at or prior to which such Company is a partyClosing;
(xii) evidence, the Consents set forth in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunderSection 3.06 of the Seller Disclosure Schedules;
(xiii) resignations (which shall include a release evidence reasonably satisfactory to the Purchasers that all officers or directors of all claims FB, FB USA and Logistics, in office immediately prior to the Closing Time, have resigned, in writing, from such positions effective as of the Effective Time, except as otherwise requested by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;Purchasers; and
(xiv) documentary evidence each of FB USA and Logistics shall deliver to US Purchaser (a) a notice to the IRS, in accordance with the requirements of Treasury Regulations Section 1.897-2(h)(2) dated and executed as of the termination Closing Date, together with written authorization for US Purchaser to deliver such notice to the IRS on its behalf after the Closing, and (ii) a certification that the FB USA Shares or the Logistics Shares, as applicable, are not “United States real property interests” as defined in Section 897(c) of the Casino Management Agreement Code prepared in accordance with the Treasury Regulations under Sections 897 and 1445 of the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating theretoCode, in each case, which are in HoldCoa form reasonably acceptable to US Purchaser for purposes of satisfying US Purchaser’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning obligations under Treasury Regulations Regulation Section 1.1445-2(b)(22(c)(3);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger and validly executed by a duly authorized officer of the Companies FB USA or Logistics, as of the last day of the most recent calendar month ending at least 30 days prior to the Closingapplicable.
(b) At the ClosingClosing Time, Parent and/or Operator, as applicable, has delivered, the Purchasers shall deliver (or caused cause to be delivered) to the Sellers’ Representative (collectively, to Stockholder Representative or the Exchange Agent:“Purchaser Deliverables”):
(i) the Issued Units to the Sellers, allocated among them as they may advise prior to the Closing Date (such Issued Units to be unregistered and subject to the Lockup Agreements);
(ii) the Employment Agreements, duly executed by FB;
(iii) the Non-Competition, Non-Solicitation and Confidentiality Agreement, duly executed by each party thereto other than any Seller Party;
(iv) the Lockup Agreements, duly executed by each party thereto other than any Seller Party;
(v) the Escrow Agreement, duly executed by Parent and Operatoreach party thereto other than any Seller Party;
(iivi) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator)IP Transfer, in each case in accordance with Section 1.14duly executed by US Purchaser;
(iiivii) a certificate of the Secretary signed by an officer of each Buyer PartyPurchaser certifying, dated the Closing Date, in form as complete and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect accurate as of the Closing Date and (iii) the resolutions Closing, attached copies of the board Organizational Documents of directors (the Purchasers, certifying and attaching all requisite resolutions or equivalent governing body) actions of each Buyer Party authorizing Purchaser approving the transactions contemplated by execution and delivery of this Agreement and the execution, delivery consummation of the Transactions and performance certifying to the incumbency and signatures of the officers of the Purchasers executing this Agreement and any other documents relating to the Transactions;
(viii) a reasonably current certificate of existence or good standing (as applicable) for each Transaction Document Purchaser issued by the relevant authority of the province or the jurisdiction of incorporation or formation;
(ix) the Election, subject to which such Buyer Party is a partythe terms of Section 5.06; and
(ivx) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation an acknowledgment of the Merger or assignment of the transactions contemplated by right to receive the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingContingent Consideration.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Sellers shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesParent and the Buyer, the following:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval officer's certificates contemplated by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”Section 7.3(d); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreementmembership or partnership agreements representing interests in Exodus Communications Real Property Managers I, duly executed LLC and Exodus Communications Real Property I, amended to replace Exodus, with the Buyer, or other indicia of ownership required by Stockholder Representativethe Buyer, to evidence transfer thereof;
(iii) certificates copies of good standingall consents, dated as waivers and approvals obtained by any Seller or its Subsidiaries that are required for the consummation of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Persontransactions contemplated by this Agreement;
(iv) payoff letters a duly executed copy of the Escrow Agreement, a duly executed copy of the Transition Services Agreement S/B and a duly executed copy of the Transition Services Agreement B/S, and such other duly executed documents, instruments and certificates as may be necessary or other evidence appropriate to be delivered by any Seller (or the Retained Subsidiaries, as the case may be) pursuant to this Agreement;
(v) a duly executed b▇▇▇ of discharge sale in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of Parent and Exodus transferring the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related Primary Purchased Assets to the operation of the Casino in the Ordinary Course of BusinessBuyer;
(vvi) documentary evidence of a duly executed assignment and assumption agreement between the release Sellers and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), Buyer in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;Parent and Exodus; and
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy certificates and evidences of transfer as the Title Insurer either Parent or Exodus may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingrequire.
(b) At the Closing, Parent and/or Operator, as applicable, has deliveredthe Buyer shall deliver, or caused cause to be delivered, to Stockholder Representative or Exodus, the Exchange Agentfollowing:
(i) an amount of cash, calculated as set forth in Section 2.2(a)(ii), by wire transfer of immediately available same day funds to an account or accounts designated by Exodus at least three (3) Business Days prior to the Escrow Agreement, duly executed by Parent and OperatorClosing Date;
(ii) copies of all consents, waivers and approvals obtained by Parent, the Parent Closing Merger Consideration (in Buyer or their Affiliates that are required for the case consummation of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14transactions contemplated by this Agreement;
(iii) a certificate duly executed copy of the Secretary Escrow Agreement, a duly executed copy of each the Transition Services Agreement S/B and a duly executed copy of the Transition Services Agreement B/S, and such other duly executed documents, instruments and certificates as may be necessary or appropriate to be delivered by Parent or the Buyer Party, dated pursuant to this Agreement; and
(iv) a duly executed assignment and assumption agreement between the Closing Date, Sellers and the Buyer in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents Parent and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowExodus.
(c) Each Party and its Representatives At the Closing, Parent or the Buyer shall take (deliver, or cause to be taken) all such further actionsdelivered, do (or cause the Escrowed Amount and the Scheduled Lease Amount to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by Escrow Agent in accordance with the other Parties in order to effectuate the consummation terms of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingEscrow Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Exds Inc)
Deliveries at Closing. (a) At or prior Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at the Closing, HoldCo Sellers shall execute and/or deliverassign, as applicabletransfer, and deliver to Buyer the Subject Interests free and clear of all Encumbrances, other than the Permitted Encumbrances, duly endorsed or accompanied by stock powers duly endorsed in blank. In exchange for the Subject Interests, Buyer will pay or cause to be executed and/or delivered, paid to Buyer Parties:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of Sellers at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, by wire transfer of immediately available funds denominated in U.S. dollars or by such other means as are agreed upon by Sellers and Buyer, an amount equal to the Purchase Price, subject to adjustment following the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in accordance with Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing2.5.
(b) At the Closing, Parent and/or Operator, as applicable, has deliveredSellers shall deliver, or caused shall cause to be delivered, the following to Stockholder Representative or the Exchange AgentBuyer:
(i) the Escrow Agreement, duly executed by Parent and OperatorThe MainLine Interest;
(ii) the Parent Closing Merger Consideration (in the case of Parent) The C/R Units and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14Non-C/R Units;
(iii) a certificate The written resignations of the Secretary directors of each Buyer Party, dated the Closing Date, in form MainLine and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) Buckeye GP that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect set forth on Schedule 2.4 effective as of Closing;
(iv) Copies of any and all governmental and third party consents, waivers or approvals obtained by Sellers with respect to the Closing Date and (iii) the resolutions consummation of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement Agreement, including waivers of the change of control provisions by SunTrust Capital with respect to the BGH Credit Facility and the executionrequired lenders with respect to the BPL Credit Facility;
(v) The officers’ certificates contemplated by Section 6.1(f);
(vi) The opinions of counsel contemplated by Section 6.1(g);
(vii) Copies of the certificate of formation or other certificate of organization of each Seller that is an entity and each Buckeye Affiliate and certificates of status or good standing as of a recent date with respect to each such entity, issued by the Secretary of State of the jurisdiction in which each respective entity was organized;
(viii) Copies, certified by an officer of C/R Holdings, of resolutions authorizing the execution and delivery and performance of this Agreement and all of the agreements and instruments to be executed and delivered by C/R Holdings in connection herewith, and the consummation of the transactions contemplated hereby;
(ix) A certificate of an officer of C/R Holdings identifying the name and title and bearing the signatures of the officers of C/R Holdings authorized to execute and deliver this Agreement and the other agreements and instruments contemplated hereby;
(x) Sellers’ Required Regulatory Approvals;
(xi) A certification of non-foreign status by each Transaction Document Seller that meets the requirements of Treasury Regulation Section 1.1445-2(b)(2);
(xii) Evidence reasonably satisfactory to which such Buyer Party is that the Management Units that have been converted to common units of BGH are transferable to Buyer pursuant to and in accordance with the BGH Partnership Agreement prior to the Closing Date;
(xiii) Documentation evidencing the admission of Buyer as a partylimited partner of BGH in accordance with Section 10.1 of the BGH Partnership Agreement; and
(ivxiv) any Such other items agreements, consents, documents, instruments and writings as are required to be delivered by Sellers at or certificates described in Section 5.3 belowprior to the Closing Date pursuant to this Agreement.
(c) Each Party and its Representatives At the Closing, Buyer shall take (deliver, or shall cause to be takendelivered, the following to Sellers:
(i) The Purchase Price;
(ii) Copies of any and all such further actionsgovernmental and third party consents, do (waivers or cause approvals obtained by Buyer with respect to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger transactions contemplated by this Agreement;
(iii) The officers’ certificate contemplated by Section 6.2(g);
(iv) The opinion of counsel contemplated by Section 6.2(h);
(v) Copies, certified by the Secretary or Assistant Secretary of Buyer, of corporate resolutions authorizing the execution and delivery of this Agreement and all of the agreements and instruments to be executed and delivered by Buyer in connection herewith, and the consummation of the transactions contemplated by hereby;
(vi) A certificate of the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment Secretary or other document or any such further action is necessary, each other Party Assistant Secretary of Buyer identifying the name and its Representatives, shall cause title and bearing the appropriate Persons signatures of the officers of Buyer authorized to execute and deliver all such this Agreement and the other agreements and instruments contemplated hereby; and
(vii) A copy of the certificate of formation of Buyer and take all such actions a certificate of good standing with respect to Buyer as of a recent date, issued by the requesting Party may reasonably determine to be necessary either before, at or following the ClosingSecretary of State of Delaware.
Appears in 1 contract
Deliveries at Closing. At the Closing and subject to the terms and conditions herein contained:
(a) At or prior The Sellers shall deliver to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesParent and the Purchaser the following:
(i) (A) a truelegal opinion of Cart▇▇, complete and correct copy of the written consent or other agreement from the Stockholders▇▇▇▇▇▇▇ & ▇ilb▇▇▇, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect ▇▇unsel to the shares of capital stock of HoldCo held by Company, in substantially the Stockholders that executed the Written Consentform attached hereto as Exhibit B;
(ii) a legal opinion of counsel to each of the Escrow AgreementSellers, duly executed by Stockholder Representativein substantially the form attached hereto as Exhibit C;
(iii) certificates a certificate signed by the Chairman of good standingthe Board or other authorized officer of each of the Company and each Seller which is a corporation and by each other Seller, dated as of the Closing Date (orDate, stating that the conditions applicable to the Company or such Seller, as necessarythe case may be, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each Section 7.1 have been satisfied as of the other states in which any of the Companies are qualified to do business as a foreign PersonClosing;
(iv) payoff letters the certificates for the Sellers' Shares, duly endorsed or other evidence accompanied by stock powers duly endorsed in blank, free and clear of discharge in form any and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessLiens;
(v) documentary evidence forms of all instruments required to release and satisfy all indebtedness and liens of the release Company and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), its Subsidiaries disclosed in form and substance reasonably satisfactory to Buyer Parties;Schedule 1.5; and
(vi) at least one Business Day prior such other customary certificates and other evidence as the Parent, the Purchaser or their counsel may request as to the Closing, satisfaction of the Closing Transaction Expenses Certificate;conditions to the Parent's and the Purchaser's obligations set forth herein and as to such other matters as the Parent and the Purchaser may reasonably request.
(viib) at least one Business Day prior The Parent and the Purchaser shall deliver to the Closing, Sellers the Closing Indebtedness Certificate;following:
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) a legal opinion of Gree▇▇▇▇▇ ▇▇▇u▇▇▇, ▇.A., counsel for the Charter Documents of such Company, the Certificate of Designation Parent and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the CompaniesPurchaser, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case Purchase Price payable in accordance with Section 1.141.1 hereof and as adjusted pursuant to Section 1.2 hereof;
(iii) a certificate signed by the Chief Executive Officer or other authorized officer of each of the Secretary of each Buyer PartyParent and the Purchaser, dated as of the Closing Date, stating that the conditions in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there Section 8.1 have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect satisfied as of the Closing Date and Closing;
(iiiiv) the resolutions release and satisfaction of all indebtedness and liens of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement Company and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyits Subsidiaries disclosed in Schedule 1.5; and
(ivv) any such other items customary certificates and other evidence as the Sellers or certificates described in Section 5.3 belowtheir counsel may request as to the satisfaction of the conditions to the Sellers' obligations set forth herein and as to such other matters as the Sellers may reasonably request.
(c) Each Party and its Representatives The Sellers, the Company, the Parent and/or the Purchaser, as applicable, shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by deliver the other Parties in order to effectuate the consummation of the Merger or the transactions items contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party under Articles VII and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingVIII hereof.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to In connection with the sale of the Equity Interests at the Closing, HoldCo Seller shall execute and/or deliver, as applicable, deliver or cause to be executed and/or delivered, delivered the following to Buyer PartiesPurchaser at the Closing:
(i) (A) a truean executed receipt for the Closing Date Cash Purchase Price and, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreementif applicable, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentSeller Notes;
(ii) certificates representing the Escrow AgreementEquity Interests of the Company (if the Equity Interests are certificated), duly executed by Stockholder Representativetogether with appropriate instruments of transfer in a form mutually reasonably satisfactory to Seller and Purchaser for transfer on the books of the Company;
(iii) certificates copies of the publicly filed organizational documents of the Company, certified as of a recent date prior to the Closing Date by the Secretary of State of the State of Nevada;
(iv) a copy, certified by an officer of the Company, of the bylaws or operating agreement of the Company, as applicable;
(v) a copy, certified by an officer of Seller, of the resolutions of its board of directors authorizing the execution and delivery of this Agreement and consummation of the transactions contemplated by this Agreement, which resolutions shall be in full force and effect and not revoked;
(vi) a duly executed certificate of an officer of Seller pursuant to Section 7.3(c);
(vii) a good standingstanding certificate (or its equivalent) for the Company issued by (i) the Secretary of State of the State of Nevada (dated within a recent date prior to the Closing Date), and (ii) of such other applicable jurisdictions where the Company is qualified or licensed to do business or own, lease or operate property making such qualification or licensing necessary (dated as of a date within a recent date prior to the Closing Date);
(viii) a bring down good standing certificate (or its equivalent), dated as of the Closing Date (orDate, as necessary, of the most recent practicable datecertificates delivered pursuant to Section 3.2(a)(vii), for or a verbal confirmation from the Companies in their respective jurisdiction(s) Secretary of organization and from each State of the other states in which any of applicable jurisdiction on the Companies are qualified Closing Date with respect to do business as a foreign Personsuch good standing;
(ivix) payoff letters or other the record books of the Company;
(x) duly executed resignations effective as of the Closing Date from such managers, directors and officers of the Company as Seller shall have notified Purchaser in writing not less than one Business Day prior to the Closing Date;
(xi) duly executed copies of documentation evidencing the Termination of Affiliate Contracts;
(xii) evidence of discharge in form and substance mutually reasonably satisfactory to Buyer Parties with respect to all Indebtedness Seller and Purchaser that the Release of Guaranties occurs at the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessClosing;
(vxiii) documentary an executed counterpart of the Transitional Services Agreement (or such other document as is contemplated in Section 6.12);
(xiv) duly executed copies of the assignment and/or license agreements as required by Section 6.9(e), including evidence of the release filing of all assignments with the United States Patent and discharge Trademark Office, United States Copyright Office and any applicable domain name registries and any other documents executed by Parent or its Affiliates conveying the right to Use the Used Intellectual Property to Purchaser;
(xv) evidence reasonably satisfactory to Purchaser that all Gaming Licenses required to be obtained by Seller or any of any guarantees its directors, officers, employees, stockholders and Affiliates in connection with the conversion of the Company to an LLC have been obtained and are in full force and effect;
(xvi) if the closing condition set forth in Section 7.3(f) is satisfied pursuant to the Subdivision Closing Conditions, duly executed and notarized originals of the REA (if the REA has been mutually agreed upon) or, if the REA has not been mutually agreed upon, the REA Term Sheet;
(xvii) if the closing condition set forth in Section 7.3(f) is satisfied pursuant to the Subdivision Closing Conditions, evidence reasonably acceptable to Purchaser that the Subdivision has been completed, the Treasure Island Property has been conveyed to the Company pursuant to the Deed or Liens will be as of the Closing, and that the Owner’s Title Policy (includingincluding the Non-Imputation Endorsement, without limitationwhich shall be effective as of the Closing) has been issued concurrently with such recordation;
(xviii) if the closing condition set forth in Section 7.3(f) is satisfied pursuant to the Pre-Subdivision Closing Conditions, all appropriate UCC financing statement amendments duly executed and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrancesnotarized originals, as applicable, of the Replacement Ground Lease and the Lease Memorandum;
(xix) if the closing condition set forth in Section 7.3(f) is satisfied pursuant to the Pre-Subdivision Closing Conditions, three (3) originals of the Subdivision Guaranty, duly executed by Parent and Seller in favor of Purchaser and the Company;
(xx) if the closing condition set forth in Section 7.3(f) is satisfied pursuant to the Subdivision Closing Conditions, one (1) duly executed and notarized original of the Deed and such declaration of value as may be required in connection with the Deed pursuant to applicable Law;
(xxi) if the “closing condition set forth in Section 7.3(f) is satisfied pursuant to the Subdivision Closing Liens”)Conditions, a statement issued by the Seller in a form reasonably satisfactory to the Purchaser certifying that Seller is not a foreign person within the meaning of Treasury Regulations issued pursuant to Section 1445 of the Code; and
(xxii) all other previously undelivered documents, agreements, instruments, writings and certificates, and such other documents, agreements, instruments, writings and certificates as Purchaser may reasonably request to effect the transactions contemplated by this Agreement, in form and substance reasonably satisfactory to Buyer PartiesPurchaser.
(b) In connection with the purchase of the Equity Interests at the Closing, Purchaser shall deliver or cause to be delivered the following to Seller, at the Closing:
(i) the Closing Date Cash Purchase Price in immediately available funds by wire transfer to an account designated by Seller in writing to Purchaser;
(ii) a receipt for delivery of the Equity Interests of the Company, duly executed by a manager of Purchaser;
(iii) the Seller Note and the Collateral Documents, duly executed and, where appropriate, notarized, by Purchaser and/or the Company, if the Closing Date Purchase Price is greater than the Closing Date Cash Purchase Price;
(iv) a copy of the organizational documents of Purchaser, certified as of a recent date prior to the Closing Date by the Secretary of State of the State of Nevada;
(v) copies, certified by a manager of Purchaser, of its operating agreement;
(vi) at least one Business Day prior to copies, certified by an officer of Purchaser, of the Closingresolutions of Purchaser’s manager authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, the Closing Transaction Expenses Certificatewhich resolutions shall be in full force and effect and not revoked;
(vii) at least one Business Day prior a duly executed certificate of an officer of Purchaser pursuant to the Closing, the Closing Indebtedness CertificateSection 7.2(c);
(viii) a good standing certificate (or its equivalent) of Purchaser issued by the Secretary of State of the State of Nevada, dated as of a recent date prior to the Closing Certificate, in the manner contemplated in Section 1.17(a)Date;
(ix) a bring down good standing certificate (or its equivalent), dated as of the Consideration SpreadsheetClosing Date, in of the manner contemplated in certificate delivered pursuant to Section 1.14(e3.2(b)(viii), or a verbal confirmation from the Secretary of State of the State of Nevada on the Closing Date with respect to such good standing;
(x) those consents or approvals identified on Schedule 1.19(a)(x)a receipt for delivery of the record books of the Company, duly executed by a manager of Purchaser;
(xi) a certificate an executed counterpart of the Secretary Transitional Services Agreement (or such other document as is contemplated in Section 6.12);
(xii) evidence reasonably satisfactory to Seller that all Gaming Licenses required to be obtained by Purchaser or any of each Companyits managers, dated officers, employees, stockholders and Affiliates in connection with the Closing Dateacquisition of the Equity Interests have been obtained and are in full force and effect; and
(xiii) all other previously undelivered documents, agreements, instruments, writings and certificates, and such other documents, agreements, instruments, writings and certificates as Seller may reasonably request to effect the transactions contemplated by this Agreement, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingSeller.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Sources: Purchase Agreement (MGM Mirage)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliverSellers will deliver to Buyer or its local Affiliates or representatives, as applicablemutually agreed upon, or cause to be the following duly executed and/or delivered, to Buyer Partiesdocuments and other items:
(i) a ▇▇▇▇ of sale and other transfer documents substantially in the forms of Exhibit A hereto (Athe “Bills of Sale”);
(ii) an assignment and assumption agreement substantially in the form of Exhibit B hereto (the “Assignment and Assumption Agreement”);
(iii) a truemaster transitional services agreement substantially in the form of Exhibit C hereto, complete with exhibits thereto in form and correct copy substance satisfactory to the Parties based upon the term sheets attached to Exhibit C (the “Master Transitional Services Agreement”);
(iv) instruments of assignment substantially in the written consent or other agreement from the Stockholders, representing approval by the holders forms of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger Exhibit D hereto for each Patent and the transactions contemplated hereby ▇▇▇▇ (collectively, the “Written ConsentIntellectual Property Assignments”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(iiv) limited warranty deed substantially in the Escrow Agreement, duly executed by Stockholder Representativeform of Exhibit E hereto (the “Xenia Deed”);
(iiivi) certificates a projector supply agreement substantially in the form of good standing, dated as of Exhibit F hereto (the Closing Date (or, as necessary, the most recent practicable date“Projector Supply Agreement”), for and a networking supply agreement substantially in the Companies in their respective jurisdiction(sform of Exhibit K hereto (the “Networking Supply Agreement”) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonSupply Agreements;
(ivvii) payoff letters or other evidence a license agreement substantially in the form of discharge Exhibit H hereto (the “IPR Agreement”);
(viii) a lease in respect of the Duluth Site based upon the term sheet attached as Exhibit I hereto in form and substance reasonably satisfactory to Buyer the Parties with respect to all Indebtedness of the Companies (the “Closing IndebtednessDuluth Lease”);
(ix) a lease in respect of the Kortrijk Site based upon the term sheet attached as Exhibit J hereto in form and substance satisfactory to the Parties (the “Kortrijk Lease”);
(x) a sub-lease in respect of the Kuurne Site based upon the term sheet attached as Exhibit K hereto in form and substance satisfactory to the Parties (the “Kuurne Sub-Lease”);
(xi) an officer’s certificate to the effect that each of the conditions specified in Section 7.1(a) and Section 7.1(b) is satisfied;
(xii) a FIRPTA affidavit or affidavits in form and substance satisfactory to Buyer;
(xiii) an acknowledgment of the receipt of the Initial Purchase Price;
(xiv) the Local Transfer Agreements and all other documents or items as may be required to be delivered on the Closing Date pursuant to the Local Transfer Agreements in order to complete the transactions contemplated by such Local Transfer Agreements;
(xv) [Intentionally Deleted];
(xvi) [Intentionally Deleted];
(xvii) [Intentionally Deleted];
(xviii) [Intentionally Deleted];
(xix) [Intentionally Deleted];
(xx) [Intentionally Deleted];
(xxi) [Intentionally Deleted];
(xxii) [Intentionally Deleted];
(xxiii) [Intentionally Deleted];
(xxiv) [Intentionally Deleted];
(xxv) the Israeli Subsidiary’s shareholders register, which reflecting the registration by the Israeli Subsidiary of the transfer of the Israeli Equity to the Buyer;
(xxvi) such Closing Indebtedness shall resolutions of the board of directors or shareholders (or equivalent) of each Acquired Subsidiary as may be set forth reasonably required authorizing the transactions contemplated hereby, in form and substance satisfactory to the Parties;
(xxvii) an original share transfer form in respect of the Singapore Equity in favour of the Buyer or its nominee in form and substance satisfactory to the Parties, together with all documents required to effect the stamping of the transfer of the Singapore Equity to the Buyer or its nominee (including but a working sheet computing the Singapore stamp duty payable in the form prescribed by the Stamp Duty branch of the Inland Revenue Authority of Singapore and signed by a director or secretary of the Company, and such other statutory declarations, letters, working sheets and valuations as the said Stamp Duty branch may require for the purpose of assessing the stamp duty payable on Schedule 1.19(a)(ivthe transfer of the Singapore Equity);
(xxviii) the common seal of the Singapore Subsidiary, the constitutional documents of the Singapore Subsidiary (including but not limited to the certificate of incorporation, the memorandum and articles of association, and other similar organisational documents of the Singapore Subsidiary), and the business records kept by the Singapore Subsidiary (including the share register books, minute books, and other records that the Singapore Subsidiary is required by law to maintain or that are kept in accordance with good business practices) made up to the date of Closing;
(xxix) to the extent not covered by any of the other specific provisions of this Section 2.9(a), share certificates representing the Acquired Equity, if any, accompanied by duly executed share transfer deeds assigning the Acquired Equity in the name of Buyer, and any other documents reasonably necessary to transfer to Buyer good and valid title to the Acquired Equity in accordance with the terms of this Agreement and the Related Agreements; provided, however, that this Section 1.19(a)(iv) if such share certificates have been lost or stolen, an affidavit of lost certificate covering such Acquired Equity represented by lost or stolen certificate shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Businessprovided;
(vxxx) documentary evidence resignations of officers and directors of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;Acquired Subsidiaries.
(vixxxi) at least one Business Day prior to valid certificates in accordance with (w) Article 442bis of the Closing(Belgian) Income Tax Code, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate Article 93undecies B of the Secretary (Belgian) VAT Code and (y) Article 41quinquies of the (Belgian) Law of 27 July 1969 revising the Decree-Law of 28 December 1944, each Company, dated the Closing Date, in form and substance reasonably satisfactory issues not earlier than 25 days prior to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and certifying that Seller does not have any Liabilities with respect to the relevant Tax Authorities;
(ivxxxii) an option agreement in respect of KND1 substantially in the resolutions form of Exhibit O hereto (the board of directors of each Company authorizing “KND1 Option Agreement”); and
(xxxiii) any other documents or items as may be reasonably required to be delivered on the Closing Date in order to complete the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingRelated Agreements.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused Buyer will deliver to be delivered, to Stockholder Representative or Sellers the Exchange Agentfollowing duly executed documents and other items:
(i) the Escrow Agreement, duly executed by Parent and OperatorBills of Sale;
(ii) the Parent Closing Merger Consideration (in the case of Parent) Assignment and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14Assumption Agreement;
(iii) a the Master Transitional Services Agreement;
(iv) the Intellectual Property Assignments;
(v) the Xenia Deed;
(vi) the Projector Supply Agreement, the Networking Supply Agreement and the other Supply Agreements;
(vii) the IPR Agreement;
(viii) the Duluth Lease;
(ix) the Kuurne Sub-Lease;
(x) the Kortrijk Lease;
(xi) an officer’s certificate to the effect that each of the Secretary of each Buyer Party, dated the Closing Date, conditions specified in form Section 7.2(a) and substance reasonably satisfactory to HoldCo, certifying as to: Section 7.2(b) are satisfied;
(ixii) the Charter Documents of such Buyer Party, Initial Purchase Price;
(iixiii) that there have been no amendments the Local Transfer Agreements and all other documents or items as may be required to such Charter Documents and that such Charter Documents are in full force and effect as of be delivered on the Closing Date and pursuant to the Local Transfer Agreement in order to complete the transactions contemplated by such Local Transfer Agreements;
(iiixiv) the resolutions of KND1 Option Agreement; and
(xv) any other documents or items as may be reasonably required to be delivered on the board of directors (or equivalent governing body) of each Buyer Party authorizing Closing Date in order to complete the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowRelated Agreements.
(c) Each Party and its Representatives shall take (or cause All actions to be takentaken at Closing, as set forth in Sections 2.9(a) and 2.9(b) above, will be considered to take place simultaneously, and no delivery of any document will be deemed complete until all such further actionsactions and deliveries of documents required by Sections 2.9(a) and 2.9(b) above are completed, do (or cause and the Closing shall not occur and the Business shall accordingly not be transferred to be done) all such further things the Buyer unless and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take until all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingand deliveries are effectively completed.
Appears in 1 contract
Sources: Master Acquisition Agreement (Esterline Technologies Corp)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo Seller shall execute and/or deliverdeliver to Buyer, as applicablein consideration of the Purchase Price, or cause to be executed and/or delivered, to Buyer Partiesthe following:
(i) (A) a true, complete ▇▇▇▇ of Sale substantially in the form of EXHIBIT C duly executed on behalf of Seller and correct copy dated as of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentClosing Date;
(ii) the Escrow Agreement, Non-Competition Agreement duly executed by Stockholder Representativeon behalf of Seller;
(iii) certificates assignments of good standingcontracts relating to and leases of personal property included in the Assets, except with respect to assignments requiring the consent of third parties, which have not been obtained as of the Closing;
(iv) evidence of all assignments, novations and/or subcontracts of contracts as contemplated by this Agreement, which are available as of the Closing;
(v) the Beltsville Sublease duly executed on behalf of Seller;
(vi) the consent of the landlord of the Beltsville Office Space to the Beltsville Sublease;
(vii) the consent of the landlord of the Beltsville Office Space to a collateral assignment of the Beltsville Sublease in favor of Buyer's lender;
(viii) a certificate, dated as of the Closing Date (orand executed by Seller's President, in his capacity as necessarysuch, certifying to the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each fulfillment of the other states conditions specified in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a)SECTIONS 14.1 THROUGH 14.6 hereof;
(ix) an opinion of ▇▇▇▇▇, Somerville & Case, L.L.C., counsel to Seller, dated as of the Consideration SpreadsheetClosing, addressing such matters and in the manner contemplated in Section 1.14(e)form reasonably satisfactory to Buyer;
(x) those consents or approvals identified on Schedule 1.19(a)(x)a certified copy of the resolutions adopted by the Board of Directors of Seller authorizing the transactions contemplated by this Agreement;
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form incumbency and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as specimen signatures of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and signatory officers of each of the Companies, in substantially the form attached hereto as Exhibit DSeller;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause Seller will deliver to be executed and/or delivered, to Buyer PartiesBuyer:
(i) (A) a true, complete and correct copy an assignment of the written consent or other agreement from Units, substantially in the Stockholdersform of Exhibit C, representing approval duly executed by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentSeller;
(ii) the Escrow Agreementan Officer’s Certificate, duly executed by Stockholder RepresentativeSeller;
(iii) the certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable datereferred to in Section 7.1(d), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Personduly executed by Seller;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness that the employment of each of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities Non-Continued Employees has been terminated as of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessClosing Date;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to the Buyer Partiesthat each of the employment agreements between Seller or a Company, on the one hand, and Seller’s or a Company’s employees, on the other hand, providing services to the Companies shall have been terminated if the termination of such agreement on or prior to the Closing Date did not require the consent of the applicable employee or the applicable employee has agreed to terminate such agreement as contemplated under Section 6.3(b);
(vi) at least one Business Day prior to duly executed resignations of all of the Closingofficers of the Companies, in each case, effective as of the Closing Transaction Expenses Certificateand in the form of Exhibit D;
(vii) at least one Business Day prior to a Restrictive Covenants and Transaction Closing Agreement, substantially in the Closingform of Exhibit E, duly executed by each of the Closing Indebtedness CertificateMembers and by Seller;
(viii) a copy of the Closing Certificate, in the manner contemplated notices requested by Buyer to be delivered by Seller as provided in Section 1.17(a5.2(a)(ii);
(ix) a notice to Buyer required under Part II(B), paragraph #2 of the Consideration SpreadsheetAuthorization to Discharge Under the National Pollutant Discharge Elimination System, in Permit No. WY-0001163, attached to the manner contemplated in Section 1.14(e)1979 Consent Decree;
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of each agreement, if any, identified with a “*” on Section 4.29 of the Casino Management Agreement Disclosure Schedule; and
(xi) evidence of the due adoption of an amendment and restatement of the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each Company Severance Plan (in form and substance reasonably satisfactory consistent with the terms of this Agreement and acceptable to Buyer) by Refining Company.
(b) At Closing, Buyer Partieswill deliver to Seller
(i) the Closing Cash Payment;
(xvii) evidencean assignment of the Units, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached heretoC, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably requestduly executed by Buyer
(iii) an Officer’s Certificate, duly executed by Buyer;
(xviiiv) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating theretothe certificate referred to in Section 7.2(d), in each case, which are in HoldCo’s possession or controlduly executed by Buyer;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxiiv) a FIRPTA Statement from each StockholderRestrictive Covenants and Transaction Closing Agreement, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) substantially in the form of Exhibit F;
(xxiv) evidenceE, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofduly executed by Buyer; and
(xxvvi) the fixed asset ledger an acknowledgement by Parent, on behalf of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party itself and its Representatives shall take (or cause Affiliates, of its release pursuant to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingSection 10.2.
Appears in 1 contract
Sources: Unit Purchase Agreement (Par Pacific Holdings, Inc.)
Deliveries at Closing. At the Closing:
(a) At or prior Sellers shall deliver to Purchaser the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Partiesitems described in clauses (i) through (vii) below:
(i) (A) a true, complete and correct copy ▇▇▇▇ of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)Sale, in form and substance reasonably satisfactory to Buyer PartiesPurchaser and Sellers (the "▇▇▇▇ of Sale"), executed by Sellers;
(viii) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate an Assignment of the Secretary of each Company, dated the Closing DateContracts, in form and substance reasonably satisfactory to Buyer PartiesPurchaser and Sellers (the "Assignment of Contracts"), certifying executed by Sellers;
(iii) the Intellectual Property Agreement, substantially in _____________ attached hereto as to: Exhibit B (the "IP Agreement"), executed by Sellers;
(iv) the Supply Agreement, substantially in the form attached hereto as Exhibit C (the "Supply Agreement"), executed by Sellers;
(v) evidence that the parties signing this Agreement and the Collateral Agreements on behalf of Sellers are authorized to do so;
(vi) the officers' certificates referenced in Section 5.4(c); and
(vii) all other documents, certificates, instruments or writings reasonably requested by Purchaser in connection herewith.
(b) Purchaser shall deliver to Sellers the items described in clauses (i) through (vii) below:
(i) the Charter Documents Closing Date Payment and Estimated Inventory Transfer Price by wire transfer of such Company, immediately available funds to the Certificate of Designation and the Agreement Among Investors account or accounts designated by ▇▇▇▇▇▇ no later than two Business Days prior to Closing;
(ii) that there have been no amendments to such Charter Documents, the Certificate an Assumption of Designation or the Liabilities Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document pursuant to which such Company is a party;
(xii) evidencePurchaser assumes at Closing the Assumed Liabilities, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, Purchaser and no Company shall have any remaining obligations thereunder;
Sellers (xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ "Assumption Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv"), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14Purchaser;
(iii) a certificate of the Secretary of each Buyer PartyIP Agreement, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: executed by Purchaser;
(iiv) the Charter Documents of such Buyer PartySupply Agreement, executed by Purchaser,
(iiv) evidence that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by party signing this Agreement and the execution, delivery and performance Collateral Agreements on behalf of this Agreement and each Transaction Document Purchaser is authorized to which such Buyer Party is a partydo so;
(vi) the officer's certificate referenced in Section 5.5(c); and
(ivvii) any all other items documents, certificates, instruments or certificates described writings reasonably requested by Sellers in Section 5.3 belowconnection herewith.
(c) Each Party The ▇▇▇▇ of Sale, Assignment of Contracts, IP Agreement, Supply Agreement, and its Representatives Assumption Agreement shall take (or cause to be taken) all such further actionsconstitute, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by collectively, the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing"Collateral Agreements."
Appears in 1 contract
Deliveries at Closing. (a) At or prior to Buyers shall have received from the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesCompany each of the deliveries set forth below:
(i) (A) a trueAt the Initial Closing and Subsequent Closing, complete as applicable, certificates representing the Shares, duly and correct copy validly issued in favor of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger Buyers and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect otherwise sufficient to vest in Buyers good title to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentShares;
(ii) At the Escrow AgreementInitial Closing and Subsequent Closing, duly executed as applicable, a certificate issued by Stockholder Representative;
(iii) certificates of good standing, dated as the secretary or an assistant secretary of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer PartiesBuyers, certifying as to: on behalf of the Company (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each the Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document the issuance of the Shares, (ii) the incumbency and signature of the authorized signatory of the Company executing this Agreement, (iii) the amended and restated certificate of incorporation and bylaws of the Company, as in effect on the Closing Date, and (iv) that the condition to which such Company is a party;
(xiiclosing set forth in Section 6.1(c) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, met; provided that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating with respect to the New Title Policy as Subsequent Closing, the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions matters set forth on Schedule 1.19(a)(xxivin clause (i), solely (ii) and (iii) may be addressed by certification that there have been no changes to such documents since the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Initial Closing.
(biii) At the Initial Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Registration Rights Agreement, duly executed by Parent and Operatorthe Company;
(iiiv) At the Parent Closing Merger Consideration (in Initial Closing, an opinion of U.S. counsel to the case Company addressed to the Buyers, providing that the issuance, sale and delivery to the Buyers of Parent) the Initial Shares and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there Subsequent Shares have been no amendments duly authorized by all necessary corporate action and upon issuance against payment therefor and delivery to the Buyers, such Charter Documents Shares will be validly issued, fully paid and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partynon-assessable; and
(ivv) any other items or certificates described in Section 5.3 below.
(c) Each Party At the Initial Closing and its Representatives shall take (or cause Subsequent Closing, as applicable, an opinion of Canadian counsel to be taken) all such further actionsthe Company addressed to the Buyers, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by providing that the other Parties in order to effectuate the consummation issuance of the Merger or Initial Shares and the transactions contemplated by Subsequent Shares, as applicable, is exempt from Ontario prospectus requirements, that such shares are subject to restrictions on transfer under Ontario securities law and that such shares are conditionally approved for listing on the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingTSX.
Appears in 1 contract
Deliveries at Closing. (a) Closing Deliveries by the Elan Companies. At or prior to the Closing, HoldCo the Elan Companies shall execute and/or deliver, as applicable, deliver or cause to be executed and/or delivered, delivered to Buyer Partiesthe Acquiror:
(i) (A) a true, complete and correct copy the Bill of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentSale;
(ii) an original of each of the Escrow AgreementRelated Ag▇▇▇▇ents, duly executed by Stockholder Representativethe Elan Companies party thereto, and copies of all documents required to be delivered by the Elan Companies pursuant to the Related Agreements;
(iii) certificates an unredacted, fully executed copy of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonAssumed Contracts;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessProduct Registrations;
(v) documentary evidence of the release assignment and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrancesassumption agreements and/or subcontracts, as applicable (the “Closing Liens”)applicable, in form and substance reasonably satisfactory acceptable to Buyer Partiesthe Elan Companies and the Acquiror, assigning to the Acquiror all rights of the Elan Companies in and to the Assumed Contracts;
(vi) at least one Business Day prior copies of all Elan Governmental Consents set forth on Schedule 5.02(a)(vi) (to the Closing, the Closing Transaction Expenses Certificateextent available in writing) and Elan Third Party Consents;
(vii) at least one Business Day prior to a FIRPTA affidavit for EOI as required by Section 1445 of the Closing, the Closing Indebtedness CertificateCode for EOI;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(aexecuted releases of any Encumbrances that are identified on Schedule 5.02(a)(viii);; and
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate signed by an officer of Elan Parent certifying as to the amount of Pre-Closing Net Product Sales and, if the Closing shall occur after November 15, 2002, Post-November 15 Net Product Sales. In addition, the Elan Companies shall use their commercially reasonable efforts to deliver such other instruments and documents of conveyance and transfer as shall be necessary and effective to transfer and assign to, and vest in, the Acquiror all of the Secretary of each CompanyElan Companies' right, dated title and interest in and to the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, Purchased Assets and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto respective agreements and other supplements relating thereto documents, instruments and copies of correspondence relating thereto, certificates in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material addition to good standing certificates, permitscertified resolutions, licenses receipts and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties Acquiror. Simultaneously with such deliveries, all such commercially reasonable steps will be taken by the Elan Companies as may be required to put the Acquiror in order to effectuate the consummation actual possession and operating control of the Merger Purchased Assets. Furthermore, the Elan Companies shall use their commercially reasonable efforts to obtain and deliver all approvals, consents and actions of, filings with and notices to any Governmental or Regulatory Authority necessary (x) to permit the Elan Companies to perform their obligations under this Agreement and (y) for the parties to consummate the transactions contemplated hereby, as are required under any Contract to which the Elan Companies are a party or by which any of the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingrespective Purchased Assets are bound.
Appears in 1 contract
Sources: Asset Purchase Agreement (Enzon Inc)
Deliveries at Closing. (a) Documents to be Delivered by the Seller. At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, --------------------------------------- the Seller will deliver or cause to be executed and/or delivered, delivered to Buyer Parties:each of the Purchasers (or only to such specific Purchaser if so indicated):
(i) Certificates representing the Purchase Shares, duly endorsed (A) a trueor accompanied by duly executed stock powers), complete shall be validly delivered and correct copy transferred to each Purchaser, in the amounts set forth on Schedule 1.1 hereto, free and clear of any ------------ and all Claims, except for restrictions imposed by the New Shareholders Agreement and, in the case of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this AgreementPurchase Shares 10 to be delivered to Alfa, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentPledge Agreement;
(ii) Copies of the Escrow resolutions of the respective Board of Directors of Seller and the Company authorizing and approving this Agreement, the Seller's Ancillary Agreements and the transactions and other agreements contemplated hereby and thereby, certified by a duly executed by Stockholder Representativeauthorized officer of Seller and the Company, as applicable, to be true, correct and in full force and effect and unmodified as of the Closing Date;
(iii) certificates Good standing certificate for each of good standingSeller and the Company from the Secretary of State of the State of Delaware, dated as of not more than ten (10) days prior to the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonClosing;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness A certified copy of the Companies (Certificate of Incorporation of Seller from the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge Secretary of those current liabilities State of the Companies specifically related State of Delaware, dated not more than ten (10) days prior to the operation of the Casino in the Ordinary Course of BusinessClosing;
(v) documentary evidence A certified copy of the release and discharge Bylaws of any guarantees or Liens Seller from the Secretary of Seller, dated not more than ten (including, without limitation, all appropriate UCC financing statement amendments and termination statements10) affecting days prior to the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer PartiesClosing;
(vi) at least one Business Day prior Letters of resignation, effective as of the Closing Date, of four of the five Seller nominees to the ClosingCompany's Board of Directors, which shall not include one of the Closing Transaction Expenses Certificatefollowing Seller nominees: Robert J. Amman or Grier C. Raclin;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. A ▇▇▇▇▇▇▇▇▇▇▇ of a ▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory ▇▇▇▇ed officer of Seller pursuant to Buyer PartiesSection 4.3(d) hereof;
(xvviii) evidence, in form and substance reasonably satisfactory Delivery to Buyer Parties, that Margaritaville has confirmed that no event Alfa of default exists under the Margaritaville AgreementAlfa Stock Option Agreement duly executed by Seller;
(xviix) Delivery to CIG of the CIG Stock Option Agreement duly executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably requestby Seller;
(xviix) originals or copies Delivery to Barings of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or controlthe Baring Stock Option Agreement duly executed by Seller;
(xviiixi) originals or copies of all material certificates, permits, licenses The New Shareholders Agreement duly executed by Seller and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control)Company;
(xixxii) any landlord consents required pursuant Delivery to the terms Baring Vostok Private Equity Fund LP ("Baring Vostok") and Barings of the Leases;
(xx) Assignment and Amendment -------------- Agreement by and among Baring Vostok, the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form Company and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Partyothers, dated the Closing Date, duly executed by the Company, in the form and substance reasonably satisfactory to HoldCo, certifying attached hereto as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyExhibit G with blanks appropriately --------- filled in; and
(ivxiii) any other items or certificates described in Section 5.3 below.
(c) Each Party Delivery to CIG of the Amendment to Shareholders and its Representatives shall take (or cause to be taken) all such further actionsRegistration Rights Agreement by and between CIG and the Company, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested dated the Closing Date, duly executed by the other Parties Company, in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions form attached hereto as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingExhibit H with blanks ---------- appropriately filled in.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Purchaser shall execute and/or deliver, as applicable, or cause deliver to be executed and/or delivered, to Buyer Partiesthe Seller:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentCash Consideration;
(ii) certificates representing the Escrow Agreement, duly executed by Stockholder RepresentativePreferred Stock;
(iii) certificates of good standing, dated as of representing the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonCommon Stock Consideration;
(iv) payoff letters or other evidence a certificate of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness an authorized officer of the Companies (Purchaser certifying to the “Closing Indebtedness”), which such Closing Indebtedness shall be fulfillment of the conditions set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessSections 9.01 and 9.02;
(v) documentary evidence a copy of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board Purchaser's Board of directors of each Company Directors, certified by an authorized officer, authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxiivi) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of Administrative Services Agreement duly executed by the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofCompany; and
(xxvvii) such other instruments and certificates as may be reasonably requested by the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingSeller.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused the Seller shall deliver to be delivered, to Stockholder Representative or the Exchange AgentPurchaser:
(i) certificates representing all of the Escrow AgreementStock, duly executed endorsed for transfer in blank or accompanied by Parent and Operatora stock power duly endorsed in blank by the Seller, with any requisite documentary or stock transfer taxes affixed thereto;
(ii) recent good standing certificates and certified articles of incorporation of the Parent Closing Merger Consideration (in the case of Parent) Company and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14Seller;
(iii) all books and records relating to the Company and its business which are not maintained at the Company, including without limitation, the minute books, stock books, stock ledger and corporate seals, corporate operation manuals, policy manuals, insurance policies in force, bank and checking account records, checks, deposit slips and signature cards, copies of the Company's Financial Statements, copies of the Seller's Financial Statements and copies of the Tax Returns for the Company and the Seller required to be filed for the last five (5) years (if applicable);
(iv) such other bills of sale, instruments of assignment and other documents as may be reasonably requested by the Purchaser in order to effect or evidence the transactions contemplated hereunder;
(v) an opinion of counsel to the Seller substantially in the form of Exhibit 11 hereto;
(vi) a certificate of an authorized executive officer of the Secretary Seller certifying to the fulfillment of each Buyer Party, dated the Closing Date, conditions set forth in form Sections 8.01 and substance reasonably satisfactory to HoldCo, certifying as to: 8.02;
(vii) a copy of the resolutions of (i) the Charter Documents Company's Board of such Buyer Party, Directors and (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party Company's stockholders, certified by its chief executive officer, authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each the other Transaction Document Documents;
(viii) copies of the Consents referred to which such Buyer Party is a partyin Section 8.17 to be delivered by the Seller;
(ix) if applicable, payoff letters, UCC-3 termination statements and other documentation relating to the release of all security interests encumbering any of the assets of the Company or the securities being acquired pursuant to the Merger;
(x) the Administrative Services Agreement duly executed by the Seller;
(xi) the IPA Agreement duly executed by the Seller;]
(xii) estoppel certificates, Lien waivers and consents of the landlord(s) with respect to the properties listed on Schedule 4.18 hereto;
(xiii) the FIRPTA Certificate duly executed by the Seller;
(xiv) the Voting Agreement duly executed by the Seller and the Physician Stockholders; and
(ivxv) any such other items or instruments and certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingPurchaser.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Purchaser shall execute and/or deliver, as applicable, deliver or cause to be executed and/or delivered, delivered to Buyer Partiesthe Seller the following:
(i) a duly executed Assignment, Bill of Sale and Assumption ▇▇▇▇ement, in a form mutually acceptable to the parties (A) a true, complete and correct copy the "Bill of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”------- Sale"); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;----
(ii) certificates from the Escrow Agreement, duly executed appropriate governmental official(s) as to the good standing of and the payment of state franchise taxes by Stockholder Representative;
(iii) certificates of good standing, dated the Purchaser as of the Closing Date a date within ten (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s10) of organization and from each days of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Purchaser, duly executed by a manager of the Purchaser, to the effect that each of the conditions specified in clauses (a) and (b) of Section 2.02 has been satisfied as of the Closing Date;
(iv) true, correct and complete copies of (1) the Articles of Organization, as amended to date, of the Purchaser, certified as of a recent date by the Secretary of each Buyer PartyState of the State of New York, (2) the limited liability company operating agreement of the Purchaser, (3) resolutions duly and validly adopted by (a) the Board of Managers of the Purchaser and (b) the members of the Purchaser evidencing the due authorization of the execution and delivery of this Agreement and the other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, accompanied by a certificate of a Manager of the Purchaser, dated as of the Closing Date, in form stating that no amendments have been made thereto from the date thereof through the Closing Date and substance reasonably satisfactory to HoldCo, certifying as to: to the incumbency of the other Managers of the Purchaser that are executing any of the Transaction Documents; and
(v) the Termination Agreements, duly executed by Messrs. Braun and Rosenberg.
(b) ▇▇ the C▇▇▇▇▇▇, ▇he Seller and NYHC-NJ shall deliver or cause to be delivered to the Purchaser the following:
(i) a duly executed Bill of Sale, executed by the Seller a▇▇ NYHC-NJ;
(ii) possession of the Assets;
(iii) certificates from the appropriate governmental official(s) as to the good standing of and the payment of state franchise taxes by each of the Seller and NYHC-NJ as of a date within ten (10) days of the Closing;
(iv) certificates of each of the Seller and NYHC-NJ, duly executed by an appropriate officer of the Seller and NYHC-NJ, respectively, to the effect that each of the conditions specified in clauses (a) and (b) of Section 2.03 has been satisfied as of the Closing Date;
(v) true, correct and complete copies of (1) the certificate of incorporation, as amended to date, of the Seller certified as of a recent date by the Secretary of State of the State of New York, (2) the by-laws of the Seller, as amended to date, (3) resolutions duly and validly adopted by (a) the Board of Directors and (b) shareholders of the Seller evidencing the due authorization of the execution and delivery of this Agreement and the other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby accompanied by a certificate of the Secretary or Assistant Secretary of the Seller, dated as of the Closing Date, stating that no amendments have been made thereto from the date thereof through the Closing Date and certifying as to the incumbency of the other officers of the Seller that are executing any of the Transaction Documents;
(vi) true, correct and complete copies of (1) the certificate of incorporation, as amended to date, of NYHC-NJ certified as of a recent date by the Secretary of State of the State of New York, (2) the by-laws of NYHC-NJ, as amended to date, (3) resolutions duly and validly adopted by (a) the Board of Directors of NYHC-NJ and (b) the shareholder of NHYC-NJ evidencing the due authorization of the execution and delivery of this Agreement and the other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby accompanied by a certificate of the Secretary or Assistant Secretary of the NYHC-NJ, dated as of the Closing Date, stating that no amendments have been made thereto from the date thereof through the Closing Date and certifying as to the incumbency of the other officers of NYHC-NJ that are executing any of the Transaction Documents;
(vii) true, correct and complete copies of (i) the Charter Documents filed Certificate of such Buyer PartyAmendment to the certificate of incorporation of the Seller evidencing the change in name of the Seller from New York Healthcare, Inc. to BioBalance Holdings, Inc., (ii) that there have been no amendments resolutions duly and validly adopted by the (a) Board of Directors and (b) Shareholders of the Seller evidencing the authorization of the change in the name of the Seller and the execution of the certificate of incorporation of the Seller;
(viii) executed letters to each customer of the Business, on behalf of the Seller or NYHC-NJ, as the case may be, directing such Charter Documents and that such Charter Documents are in full force and effect as of customer to directly pay Purchaser any amounts due with respect to the Business on or after the Closing Date at such address as Purchaser shall specify in writing;
(ix) clearance certificates or similar documents from any applicable state, local or foreign Tax authority (including New York and (iiiNew Jersey) required by law to relieve the resolutions Purchaser of any liability for unpaid sales or similar Taxes of the board of directors (Seller or equivalent governing body) of each Buyer Party authorizing NYHC-NJ attributable to periods prior to or including the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyClosing Date; and
(ivx) any such other items agreements, instruments, documents, forms or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents filings as may be reasonably requested by the other Parties necessary in order to effectuate vest in the consummation of Purchaser good and valid title to the Merger or Assets and the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingBusiness.
Appears in 1 contract
Sources: Purchase and Sale Agreement (New York Health Care Inc)
Deliveries at Closing. At the Closing:
(a) At Seller shall deliver to Purchaser the certificate referenced in Sections 5.01(a) and 5.01(b) and one or prior more additional certificates, in each case, executed by a duly authorized officer of Seller, to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Partieseffect that:
(i) (A) a true, complete all corporate and correct copy of the written consent other proceedings or other agreement from the Stockholders, representing approval actions required to be taken by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal Seller in connection with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the executionOther Agreements have been taken;
(ii) if and only to the extent that Seller has obtained such consents or approvals, delivery those consents or approvals, or effective waivers thereof, to or of assignment, of those Persons set forth on Exhibit O have been obtained;
(iii) all requisite governmental approvals and performance authorizations necessary for consummation by Seller and its Affiliates of this Agreement the transactions contemplated hereby and each Transaction Document by the Other Agreements have been duly issued or granted; and
(iv) there has not been issued, and there is not in effect, any injunction or similar legal order against Seller or its Affiliates prohibiting or restraining consummation of any of the transactions herein contemplated or in any of the Other Agreements, and no legal or governmental action, proceeding or investigation which might reasonably be expected to which result in any such Company injunction or order is pending against Seller or its Affiliates.
(b) Seller shall deliver to Purchaser:
(i) one or more duly executed bills of sale in a partyform reasonably acceptable to Purchaser (“B▇▇▇ of Sale”);
(ii) one or more duly executed instruments of assignment and assumption of the Assigned Contracts in a form reasonably acceptable to Purchaser (“Instrument of Assignment and Assumption”);
(iii) one or more duly executed instruments effecting the transfer of Seller’s ownership interests in the Purchased Joint Ventures in a form reasonably acceptable to Purchaser (“Instrument of Transfer of Purchased Joint Ventures”);
(iv) one or more duly executed assignments of trademarks in a form reasonably acceptable to Purchaser (“Assignment of Trademarks”);
(v) one or more duly executed assignments of patents in a form reasonably acceptable to Purchaser (“Assignment of Patents”);
(vi) a duly executed Transition Services Agreement;
(vii) a duly executed Gainesville Services Agreement;
(viii) a duly executed Office Leases for the Owned Gainesville Real Estate;
(ix) duly executed Camden Subleases;
(x) duly executed warranty deeds for the Owned Real Estate in a form reasonably acceptable to Purchaser;
(xi) a duly executed Long Term Supply Contract;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereundera duly executed Master Propellant License Agreement;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit Dduly executed Environmental Action Agreement;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ a duly executed UK Local Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreementduly executed Novation Agreements;
(xvi) a duly executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably requestSequa Guaranty;
(xvii) originals or certified copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board Board of directors (or equivalent governing body) Directors of each Buyer Party Seller authorizing this Agreement and the Other Agreements, the transactions contemplated by this Agreement and the executionobligations of Seller hereunder and thereunder;
(xviii) a good standing certificate from the Secretary of State of Delaware, delivery and performance certifying as of this Agreement and each Transaction Document to which such Buyer Party a date not more than fifteen (15) days before the Closing Date, that Seller is a partycorporation in good standing under the laws of the State of Delaware;
(xix) other than as relates to the Excluded Assets and Excluded Liabilities, custody of or control over the originals of all books, records, correspondence, databases and papers of Seller used in or held for use in the Business; and
(ivxx) any other items or certificates described in Section 5.3 belowa cross-receipt acknowledging receipt of the Purchase Price.
(c) Each Party Purchaser shall deliver to Seller the certificate referenced in Sections 5.02(a) and its Representatives shall take 5.02(b) and one or more additional certificates, in each case, executed by a duly authorized officer of Purchaser to the effect that:
(or cause i) all corporate and other proceedings required to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested taken by the other Parties Purchaser in order to effectuate the consummation of the Merger or connection with the transactions contemplated by this Agreement and the Transaction Documents. If a Party shall Other Agreements have been taken;
(ii) all requisite governmental approvals and authorizations necessary for consummation by Purchaser of the transactions contemplated hereby and by the Other Agreements have been duly issued or granted; and
(iii) there has not been issued, and there is not in effect, any injunction or similar legal order prohibiting or restraining consummation by Purchaser of any of the transactions herein contemplated and by the Other Agreements, and no legal or governmental action, proceeding or investigation which might reasonably determine that any further conveyance, assignment or other document or be expected to result in any such further action injunction or order is necessarypending against Purchaser.
(d) Purchaser shall deliver to Seller:
(i) the Purchase Price by means of a wire transfer of immediately available funds to an account or accounts designated by Seller at least two (2) Business Days prior to Closing;
(ii) one or more duly executed Instruments of Assignment and Assumption;
(iii) one or more duly executed Instruments of Transfer of Purchased Joint Ventures;
(iv) one or more duly executed Assignments of Trademarks;
(v) one or more duly executed Assignments of Patents;
(vi) a duly executed Transition Services Agreement;
(vii) a duly executed Gainesville Services Agreement;
(viii) duly executed Office Leases;
(ix) duly executed Camden Subleases;
(x) a duly executed Long Term Supply Contract;
(xi) a duly executed Master Propellant License Agreement;
(xii) a duly executed Environmental Action Agreement;
(xiii) a duly executed UK Local Agreement;
(xiv) duly executed Novation Agreements;
(xv) a duly executed GenCorp Guaranty;
(xvi) a duly executed instrument of assumption of the Assumed Liabilities in a form reasonably acceptable to Seller (the “Instrument of Assumption”);
(xvii) certified copies of a resolution of the Board of Directors of Purchaser authorizing this Agreement and the Other Agreements, each other Party the transactions contemplated by this Agreement and its Representatives, shall cause the appropriate Persons obligations of Purchaser hereunder and thereunder;
(xviii) Resale Tax Exemption Certificates duly executed by Purchaser in a form reasonably acceptable to execute and deliver all such instruments and take all such actions as Seller; and
(xix) a cross-receipt acknowledging receipt of the requesting Party may reasonably determine to be necessary either before, at or following the ClosingPurchased Assets.
Appears in 1 contract
Sources: Purchase Agreement (Gencorp Inc)
Deliveries at Closing. At Closing, subject to the Conditions having been met or waived, the Parties shall carry out and perform the following actions and transactions:
(a) At or prior to the Closing, HoldCo shall Sellers shall:
(i) execute and/or and deliver, as applicable, or cause to be executed and/or and delivered, to the Buyer, any instruments as may be reasonably required under applicable Laws, to vest in the Buyer Parties:
(i) (A) a truegood and marketable title to the Shares, complete and correct copy including the endorsement of the written consent or other agreement from Shares (as applicable), before the StockholdersNotary, representing approval by the holders of at least 98% delivery of the outstanding shares of capital stock of HoldCo of this Agreementendorsed certificates to the Buyer free and clear from any Encumbrances, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies registration of the executed Letters Buyer as new sole shareholder of Transmittal with respect to the shares of capital stock of HoldCo held by Company in the Stockholders that executed the Written Consentrelevant shareholders’ ledgers;
(ii) execute and deliver, or cause to be executed and delivered, to the Escrow AgreementBuyer such other instruments as may be necessary, duly executed under applicable Laws, to properly complete the transactions set forth under this Agreement which must be completed by Stockholder Representativethe Sellers on or before the Closing;
(iii) certificates of good standing, dated as of deliver the Closing Date (or, as necessary, the most recent practicable date), for the Companies duly signed Directors Resignation Letters in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Personaccordance with Section 5.2;
(iv) payoff letters or other evidence of discharge deliver the duly signed Statutory Auditors Resignation Letters if delivered by the relevant statutory auditors in form and substance reasonably satisfactory to Buyer Parties accordance with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business5.2;
(v) documentary evidence cause the shareholders’ meetings of the Company and County to be held to resolve upon (A) the appointment of new directors and, if applicable, new statutory auditors, all in accordance with the designations made by the Buyer pursuant to Section 5.2(c) and (B) release and discharge of any guarantees or Liens to the maximum extent permitted by applicable Laws (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)and, in form any case, with the sole exception of fraud (dolo) and substance reasonably satisfactory gross negligence (colpa grave)) the resigning directors and, if applicable, the statutory auditors of the Company and of County notified by the Buyer pursuant to Buyer PartiesSection 5.2 above, from and against any and all liabilities arising from their holding of the offices as, respectively, directors and statutory auditors of such company up to the Closing Date;
(vi) at least one Business Day prior cause the shareholders’ meetings of the Company to be held to resolve upon the Closing, adoption of the Closing Transaction Expenses CertificateNGG By-Laws;
(vii) at least one Business Day prior enter into the Escrow Agreement and deliver it to the Closing, Buyer and the Closing Indebtedness CertificateEscrow Agent;
(viii) carry out all actions and transactions which are necessary or useful to receive the Closing Certificate, in the manner contemplated in Section 1.17(a)FF Shares at Closing;
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Seller shall execute and/or deliverdeliver to the Purchaser (1) such deeds, as applicablebills of sale, or cause to be executed and/or deliveredassignments of leases and contracts, to Buyer Parties:
(i) (A) a true, complete and correct copy any other instruments of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby conveyance (collectively, the “Written Consent”); "Conveyance Documents") that are necessary or appropriate to effectuate the transfer of the Acquired Assets to the Purchaser, and (B2) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy documents, instruments or certificates as the Title Insurer Purchaser or its counsel may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operatorthe Purchaser shall deliver to the Seller (1) such duly executed instruments as are deemed necessary or appropriate to effectuate the assumption of the Assumed Liabilities by the Purchaser; (2) such other documents, instruments or certificates required to be delivered as applicable, has delivereda condition precedent to the Seller's obligations under this Agreement, or caused to be delivered, to Stockholder Representative as the Seller or their counsel may reasonably request; and (3) the Exchange AgentPurchase Price in the form of:
(i) Cash in the amount equal to the sum of (x) 37% of the retail value of the Inventory based on the Inventory stock ledger, less a holdback for inventory adjustments that may be required by the Inventory Count of $1,000,000, and less the retail value of Inventory described in clause (y) that follows, and (y) 27% of the retail value of the Inventory that appears on the Inventory stock ledger in excess of six million dollars ($6,000,000) that was purchased more than 12 months prior to the Closing Date. The $1,000,000 holdback for inventory adjustments will be placed in an escrow account with the Escrow AgreementAgent by the Purchaser at the Closing, duly executed by Parent which escrow account shall be subject to the terms and Operatorconditions of a customary escrow agreement mutually acceptable to the Seller and the Purchaser ;
(ii) $3,000,000 through assumption by the Parent Closing Merger Consideration (in Purchaser of the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14Seller's post -petition accounts payable to trade vendors or other post-petition obligations;
(iii) a certificate assumption by the Purchaser of Employment Related Obligations in an amount not exceeding $1,100,000;
(iv) assumption by the Purchaser of the Secretary of each Buyer PartySeller's liabilities for Gift Certificates and Merchandise Credits in an amount not exceeding $1,400,000;
(v) payment in cash from the Purchaser to the Seller in an amount not to exceed $500,000 reimbursing the Seller for Prepaid Advertising arising from or relating to book dates on or after May 15, dated 2001, as identified in Schedule 2.02;
(vi) $ 2,000,000 paid in cash, as adjusted for Pro-Rated Obligations arising under the Closing DateAssigned Agreement and Acquired Locations (as provided in Section 1.07 herein), in form and substance reasonably satisfactory to HoldCo, certifying as to: reduced by (i) the Charter Documents of such Buyer Party, Good Faith Deposit and any interest earned thereon; and (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are the Advanced Payment as defined in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partySection 2.02(c); and
(ivvii) any other items or certificates described $2,000,000 to be paid in Section 5.3 belowthe form of a Note payable in four equal installments of $500,000 each on the 90th day, 180th day, 270th day and 360th day, respectively, from the Closing Date.
(c) Each Party and its Representatives shall take On request of the Seller, One Million Dollars (or cause $1,000,000) (the "Advanced Payment") will be advanced by the Purchaser to CIT Group/ Business Credit, Inc. ("CIT") on behalf of the Seller to be taken) all such further actions, do (credited by CIT as a payment of the Seller's pre-petition working capital credit facility on or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested after the date the Sale Order is approved by the other Parties Bankruptcy Court. The Advanced Payment shall, upon such application by CIT, be credited to the Purchase Price at Closing; PROVIDED, HOWEVER, THAT in order to effectuate the consummation event the Closing does not occur, the Advanced Payment will be treated as a priority loan and shall promptly be repaid by the Seller on demand of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingPurchaser.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliverSeller and Shareholders, as applicable, or cause will deliver the following to be executed and/or delivered, to Buyer PartiesBuyer:
(i) (A) a true, complete duly executed and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this acknowledged Purchase Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representativeand acknowledged Bill of Sale transferring the Assets, in substantially ▇▇▇ form attached hereto as Exhibit B (the "Bill of Sale");
(iii) duly executed certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), ▇▇▇▇e for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonVehicles;
(iv) payoff letters or other evidence duly executed and acknowledged Assignment and Assumption of discharge in form Ancillary Agreements and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the CompaniesLiabilities, in substantially the form attached hereto as Exhibit DC, (the "Assignment and Assumption of Ancillary Agreements") whereby Seller will assign to Buyer all of Seller' rights in and interests under the Ancillary Agreements, or those contracts or agreements entered into after the date hereof in accordance with the terms hereof, together with any third party consents that may be required pursuant thereto, and Buyer will assume the Ancillary Agreements and the Assumed Liabilities;
(xivv) documentary evidence of the termination of the Casino Management Escrow Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each (as defined in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or controlSection 1.11 below);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xxvi) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
Non-Compete Agreement (xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request defined in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(23.9 below);
(xxiiivii) a certificate of HoldCo’s Chief Financial Officer the License Agreement (or other executive vested with similar duties) as defined in the form of Exhibit FSection 3.11 below);
(xxivviii) evidence, the Lease Agreement (as defined in form and substance reasonably satisfactory to Buyer Parties, that Section 4.6 below);
(ix) the Companies have taken the actions set forth on Schedule 1.19(a)(xxivSupply Agreement (as defined in Section 5.7 below), solely ;
(x) a Closing Certificate as to the extent the Buyer Parties have expressly requested matters specified in writing that the Companies take any such action after the date Sections 5.1 - 5.3 hereof; and;
(xxvxi) a Secretary's Certificate of Seller certifying (A) its Articles of Incorporation, (B) its Bylaws and (C) resolutions adopted by its shareholders and the fixed asset ledger Board of Directors authorizing the Companies transactions contemplated hereby;
(xii) such other documents as of may be reasonably necessary to effect the last day of the most recent calendar month ending at least 30 days prior to the Closingtransactions contemplated hereby.
(b) At the Closing, Parent and/or OperatorBuyer will deliver the following to Seller or applicable officers of Seller, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agentcase may be:
(i) the Escrow Agreement, duly executed by Parent and OperatorCash Consideration;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14Escrow Agreement;
(iii) duly executed and acknowledged Purchase Agreement;
(iv) duly executed and acknowledged Assignment and Assumption of Ancillary Agreements and Liabilities;
(v) duly executed and acknowledged Escrow Agreement;
(vi) duly executed and acknowledged License Agreement;
(vii) duly executed and acknowledged Supply Agreement;
(viii) duly executed and acknowledged Lease Agreement;
(ix) a certificate Closing Certificate as to the matters specified in Sections 6.1 - 6.3 hereof;
(x) a Secretary's Certificate of the Secretary Buyer certifying (A) its Articles of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer PartyIncorporation, (iiB) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date its Bylaws and (iiiC) the resolutions adopted by its Board of the board of directors (or equivalent governing body) of each Buyer Party Directors authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyhereby; and
(ivxi) any such other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order necessary to effectuate the consummation of the Merger or effect the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closinghereby.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to To effect the transactions contemplated hereby, Seller shall, at the Closing, HoldCo shall execute and/or deliver, as applicabledeliver to Buyer, or cause to be executed and/or delivered, delivered to Buyer Parties:(unless previously delivered):
(i) one or more bills of sale in the form attached hereto as Exhibit A conveying in the aggregate all of Seller’s and its Affiliates’ owned tangible personal property included in the Purchased Assets to Buyer, executed by Seller or an Affiliate thereof, as applicable (A) a true, complete and correct copy “B▇▇▇ of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written ConsentSale”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) subject to Section 3.5 hereof, one or more assignments in the Escrow Agreement, duly form attached hereto as Exhibit B assigning the HoldCo Contracts to Contract HoldCo executed by Stockholder RepresentativeSeller or an Affiliate thereof, as applicable, on the one hand, and Contract HoldCo, on the other hand, which assignment(s), subject to Section 3.5(a), shall be dated no more than ten (10) Business Days following the date hereof (the “HoldCo Assignment of Contracts”);
(iii) certificates of good standingsubject to Section 3.5 hereof, dated one or more assignments in the form attached hereto as of Exhibit B assigning the Closing Date Assumed Contracts (orother than those set forth in (A) Schedule 1.1(ii)(A) and (B) those set forth in Schedule 1.1(a)(i) and Schedule 1.1(a)(ii)(B) for which the required consents have not been obtained) to Buyer, executed by Seller or an Affiliate thereof, as necessary, applicable (the most recent practicable date“Buyer Assignment of Contracts”), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters one or more instruments of assumption in the form attached hereto as Exhibit C, evidencing Buyer’s assumption, in accordance with Section 2.2 hereof, of the Assumed Liabilities, executed by Seller (the “Assumption Agreement”);
(v) the Lease Agreement in the form attached hereto as Exhibit D, executed by Seller (the “Lease Agreement”), which Lease Agreement shall supersede and replace the Transition Services Agreement;
(vi) subject to the consent of the counterparty thereto, if required, one or more assignment documents in the form attached hereto as Exhibit F assigning the Transferred Intellectual Property to Buyer (except for (A) such Transferred Intellectual Property transferred pursuant to the Buyer Assignment of Contracts and (B) those Assumed Contracts set forth in Schedule 1.1(a) for which the required consents have not been obtained), executed by Seller or an Affiliate thereof, as applicable (the “Assignment of Intellectual Property”);
(vii) all stock certificates relating to the Subsidiary Stock (other than the Transferred Subsidiary Shares, which shares are uncertificated) and the other Transferred Entities, duly endorsed or accompanied by stock powers duly executed and, notwithstanding Section 2.5, with all necessary stock transfer taxes attached thereto and canceled;
(viii) the Escrow Agreement executed by Seller;
(ix) evidence of discharge all third party consents obtained in satisfaction of the condition set forth in Section 8.4 hereof;
(x) the certificates and other documents required to be delivered at Closing as described in Article VIII;
(xi) a certificate (in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness Buyer) certifying that transactions contemplated by this Agreement are exempt from withholding under Section 1445 of the Companies Code; and
(xii) any other documents or instruments as may be appropriate to carry out the “Closing Indebtedness”)transactions contemplated by this Agreement as reasonably requested by Buyer, which such Closing Indebtedness shall including the documents specified in Section 3.6.
(b) To effect the transactions contemplated hereby, Buyer shall, at the Closing, deliver to Seller, or cause to be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(ivdelivered to Seller (unless previously delivered):
(i) shall not be deemed to require discharge of those current liabilities of the Companies specifically related an amount equal to the operation Cash Amount, payable in accordance with Section 3.2 hereof;
(ii) the B▇▇▇ of Sale executed by Buyer;
(iii) the Casino in Buyer Assignment of Contracts executed by either Buyer or Buyer Subsidiary, if applicable;
(iv) the Ordinary Course of BusinessAssumption Agreement executed by Buyer;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer PartiesLease Agreement executed by Buyer;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses CertificateAssignment of Intellectual Property executed by Buyer;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness CertificateEscrow Agreement executed by Buyer;
(viii) the certificates and other documents required to be delivered at the Closing Certificate, as described in the manner contemplated in Section 1.17(a);Article VII; and
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents any other documents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory instruments as may be appropriate to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing carry out the transactions contemplated by this Agreement and as reasonably requested by Seller, including the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described documents specified in Section 5.3 below3.6.
(c) Each Party and its Representatives shall take (or cause To the extent that a form of any document to be taken) all delivered hereunder is not attached as an Exhibit hereto, such further actionsdocuments shall be in form and substance, do (or cause and shall be executed and delivered in a manner, reasonably satisfactory to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingparties.
Appears in 1 contract
Deliveries at Closing. At the Closing:
(a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicableSeller hereby delivers, or cause causes to be executed and/or delivered, to Buyer PartiesAcquisition Sub the items described below:
(i) (A) a true, complete and correct copy ▇▇▇▇ of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)Sale, in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit DB (the "▇▇▇▇ of Sale"), executed by Seller;
(xivii) documentary evidence an Assignment and Assumption Agreement, in the form attached hereto as Exhibit C (the "Assignment and Assumption Agreement"), executed by Seller;
(iii) articles of amendment to the articles of incorporation of Seller, duly authorized by all required votes of the termination directors and shareholders of Seller, changing the Casino Management name of Seller to a name that does not include "PocketScript" or a derivation;
(iv) evidence that the parties signing this Agreement and the St. Collateral Agreements on behalf of Seller are authorized to do so;
(v) consents to assignment relating to the Assigned Contracts in form and substance acceptable to the Purchaser, including a waiver by Express Scripts, Inc. of its right of first refusal;
(vi) all electronic representations of source code, object code and associated documentation that relate to the Software Products;
(vii) a document in form and substance acceptable to the Purchaser executed by ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ Agreementand Seller to the effect that they are either an "accredited investor" or a "sophisticated investor" as those terms are generally understood under the Securities Act of 1933, each in form as amended, and substance reasonably satisfactory to Buyer Partiesthe regulations thereunder;
(xvviii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event an opinion of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially Seller's counsel in the form of Exhibit E attached hereto, mutually agreeable to Seller and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases Purchaser and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofSeller's counsel; and
(xxvix) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingall other documents, certificates, instruments or writings reasonably requested by Purchaser in connection herewith.
(b) At Purchaser or Acquisition Sub hereby delivers to Seller (or its designee) the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agentitems described below:
(i) the Escrow Assignment and Assumption Agreement, duly executed by Parent and OperatorAcquisition Sub;
(ii) the Parent Closing Merger Consideration (Shares of Purchaser Stock as provided in Section 4.1 and return of the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14promissory note;
(iii) a certificate of the Secretary of each Buyer PartyRegistration Rights Agreement, dated fully executed by Purchaser;
(iv) evidence that the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by party signing this Agreement and the execution, delivery Collateral Agreements on behalf of Purchaser and performance of this Agreement and each Transaction Document Acquisition Sub is authorized to which such Buyer Party is a partydo so; and
(ivv) any all other items documents, certificates, instruments or certificates described writings reasonably requested by Seller in Section 5.3 belowconnection herewith.
(c) Each Party Transferred Employee concurrently with the execution and its Representatives delivery of this Agreement has delivered to Purchaser the Employee Documents, executed by each Transferred Employee;
(d) The ▇▇▇▇ of Sale, Assignment and Assumption Agreement, Employee Documents, and the Registration Rights Agreement shall take (or cause to be taken) all such further actionsconstitute, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by collectively, the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing"Collateral Agreements."
Appears in 1 contract
Sources: Asset Purchase Agreement (Zix Corp)
Deliveries at Closing. 4.2.1 At the Closing, Sellers hereby deliver and are causing the Company to deliver to the Purchaser the following:
(a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:Comfort Letters;
(ib) (A) a truecopies of all resolutions adopted by the management board, complete and correct copy supervisory board and/or general shareholders meeting of each of the written consent Sellers authorizing the sale, transfer and delivery to Purchaser of the Shares and approving the consummation of the Transaction as may be required by applicable law and/or the organizational documents of each of the Sellers;
(c) resignation letters from each of Kristof De Spiegeleer, R▇▇▇▇▇ ▇▇▇▇▇▇▇, Partech Europe Partners IV LLC, J▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ and Big Bang Ventures c.v.a. as directors of the Company as well as members of any committee of the Company, which letters shall state that each such member of the board: (a) resigns with immediate effect, (b) confirms that there are no amounts owing to him or other agreement from the Stockholders, representing approval it by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”)Company; and (Bc) true, complete expressly and correct copies of irrevocably releases and waives any and all claims against the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentCompany;
(iid) the Escrow AgreementCompany’s shareholder register, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as with the transfers of the Closing Date (or, Shares as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and duly recorded therein. For this purpose, the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is Sellers hereby grant a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminatedpower-of-attorney to, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors irrevocably constitute and officers of each of the Companiesappoint as their attorney-in-fact, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇H▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form order to record execute such records and substance reasonably satisfactory to Buyer Partiestransfer such Shares on the shareholder registry of the Company with full power of substitution;
(xve) evidence, in form a receipt for the Purchaser Shares and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville AgreementAdvance Cash Purchase Price;
(xvif) executed affidavits for a certificate, dated as of a recent date hereof, from the Belgian social security authority confirming that the Company has paid all Real Property substantially in fees as of the form first quarter of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request2005;
(xviig) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, the duly executed registration rights agreement as attached in each case, which are in HoldCo’s possession or control;
Schedule 6 (xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control“Registration Rights Agreement”);
(xixh) any landlord consents required pursuant the duly executed Domain Name Assignment as attached in Schedule 7 and as necessary to transfer the terms domain name “d▇▇▇▇▇▇▇.▇▇” such that, as of the Leases;
(xx) Closing Date, the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not Company will be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial and full owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2)domain name “d▇▇▇▇▇▇▇.▇▇”;
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent loan agreements between Purchaser and Operatoreach of the option holders as attached in Schedule 5;
(iij) the Parent Closing Merger Consideration duly executed pledge agreements between Purchaser and each of the option holders as attached in Schedule 12; and
(k) the duly executed Amendment n°1 to the Corporate Software License Agreement between the Company and Hostbasket NV as attached in Schedule 14.
4.2.2 At the Closing, Purchaser hereby delivers and shall cause Terremark Worldwide, Inc. to deliver to the Sellers the following:
(a) The duly executed Registration Rights Agreement;
(b) certificates evidencing the Purchaser Shares registered in the case names of Parenteach Seller for the number of Purchaser Shares that corresponds to such Seller’s Allocable Portion;
(c) and evidence of payment of the Operator Closing Merger Consideration (in the case of Operator), in each case Advance Cash Purchase Price in accordance with Section 1.143;
(iiid) a certificate receipt acknowledging receipt of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyShares; and
(ive) any other items or certificates described evidence of payment of the expenses referred to in Section 5.3 below8.3.
(c) 4.2.3 Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or deliveries pursuant to this Section 4.2 shall be deemed to occur simultaneously and no delivery shall be made unless all other deliveries have been made. However, the transactions contemplated by Purchaser may waive the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause delivery of the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingdocuments required under section 4.2.1.(b) hereof.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Terremark Worldwide Inc)
Deliveries at Closing. At the Closing, the following items shall be delivered:
(a) At Seller shall deliver to Purchaser certificates representing the Shares, duly endorsed in blank for transfer or prior to accompanied by duly executed stock powers assigning the ClosingShares in blank, HoldCo free and clear of all Liens and restrictions of any kind;
(b) Purchaser shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:Seller, the Purchase Price by wire transfer of immediately available funds, to an account or accounts designated at least two (2) days prior to the Closing Date by Seller in a written notice to Purchaser;
(ic) (A) a trueSeller shall deliver to Purchaser evidence that all consents, complete approvals, authorizations, exemptions and correct copy of the written consent waivers from any Governmental Entity or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and any third party that are required in connection with the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consenthave been obtained;
(iid) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness Purchaser shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)have received copies, in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior it, of such certificates of good standing, board resolutions, officers and secretaries’ certificates, resignations of officers and directors, revocations of powers of attorney and other related documents with respect to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents Companies as Purchaser or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company its counsel shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xviie) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating theretoSeller shall have delivered to Purchaser, a certificate prepared in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning accordance with Treasury Regulations Regulation Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer PartiesPurchaser, certifying that Seller is not a foreign person within the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofmeaning of Code Section 1445; and
(xxvf) Seller shall have prepared and delivered to Purchaser validly executed IRS Forms 8023 and all required attachments providing for the fixed asset ledger Section 338(h)(10) Election with respect to Purchaser’s purchase of the Shares, with such portions of such Forms 8023 as relate to each of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingand Seller properly completed.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Company and the Shareholders shall execute and/or deliver, as applicable, or cause deliver to be executed and/or delivered, to Buyer PartiesAcquiror the following:
(i) Evidence that (A) a truenotice in form and substance satisfactory to the Acquiror, complete and correct copy has been delivered to each Optioner (as defined below) pursuant to the requirements of the written consent or other agreement from the Stockholders, representing approval by the holders Section 9 of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby each Option Agreement (collectively, the “Written Consent”); as defined below) and (B) true, complete and correct copies of each Optioner has approved the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentapplicable Assignment Instrument (as defined below);
(ii) the Escrow Agreement, Accredited Investor Questionnaires duly completed and executed by Stockholder Representative;each Shareholder; and
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a A certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (ior other officer) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date Company certifying that attached thereto (A) are true and (iv) the complete copies of all resolutions of the board of directors of each Company and the Shareholders authorizing the transactions contemplated by this Agreement and the execution, delivery delivery, and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
hereby, and that such resolutions are in full force and effect, (xxiiB) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger good standing of the Companies as Company from the Secretary of State of the last day State of New Mexico, dated within fifteen days of the most recent calendar month ending at least 30 days prior to Closing Date, and (C) that attached thereto are true and complete copies of the ClosingCorporate Documents (as defined below) of the Company, including any amendments or restatements thereof, and that such governing documents are in full force and effect.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused the Acquiror shall deliver to be delivered, to Stockholder Representative or the Exchange AgentShareholders the following:
(i) A certificate for each Shareholder representing the Escrow Agreement, duly executed by Parent and Operator;shares of the Surviving Company Common Stock issued to such Shareholder at the Closing pursuant to the Allocation Schedule; and
(ii) Evidence that Acquiror has provided to each Optioner an executed instrument agreeing to be bound by all the Parent Closing Merger Consideration (in the case of Parent) terms and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate conditions of the Secretary of each Buyer Partyapplicable Option Agreement (each, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowan “Assignment Instrument”).
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Sources: Merger Agreement (Bright Green Corp)
Deliveries at Closing. (a) At or prior to 4.1.1 The Closing took place on the Closing Date and the following deliveries and actions were taken at Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(i) (A) the Investor Seller and the Sellers’ Representative delivered to the Purchaser a true, complete certificate setting forth the Investor Seller’s and correct copy the Sellers’ Representative’s calculation of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby Deducted Liabilities (collectively, the “Written ConsentCertified Deducted Liabilities”); and .
(Bii) true, complete and correct copies by signing this Agreement each Seller waived its right of redemption under the executed Letters Articles of Transmittal Association or otherwise with respect to the shares transfers of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Shares made under this Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessarySellers, the most recent practicable date)Sellers’ Representative, for the Companies Purchaser and the Escrow Agent executed the Escrow Agreement, in their respective jurisdiction(s) of organization and from each of the other states form set out in which any of the Companies are qualified to do business as a foreign PersonAppendix I;
(iv) payoff letters or other evidence of discharge in form each Non-Party Share Seller and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (Purchaser executed the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino Ancillary Share Transfer Agreement in the Ordinary Course of Businessform set out in Appendix 4.1.1(iv);
(v) documentary evidence of each Non-Party Capital Loan Seller and the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting Purchaser executed the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (Ancillary Capital Loan Agreement in the “Closing Liens”form set out in Appendix 4.1.1(v), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, Purchaser paid the Closing Transaction Expenses CertificatePayment and the Escrow Amount as set forth in Section 3.1.1 and 3.1.2;
(vii) at least one Business Day prior the Investor Seller, each Individual Share Seller and each Non-Party Share Seller sold and transferred the Shares to the Closing, the Closing Indebtedness CertificatePurchaser;
(viii) the Closing Certificate, in Individual Option Sellers sold and transferred the manner contemplated in Section 1.17(a)Share Options to the Purchaser;
(ix) the Consideration Spreadsheet, Investor Seller and the Non-Party Capital Loan Sellers sold and transferred the Capital Loans to the Purchaser and delivered to the Purchaser the acknowledgement by the Company in the manner contemplated form set out in Section 1.14(eAppendix 4.1.1(ix);
(x) those consents or approvals identified on Schedule 1.19(a)(xthe Sellers delivered to the Purchaser the resignations set forth in Section 9.1 (Resignations);
(xi) a certificate of the Secretary of each Company, dated relevant parties executed the Closing Date, related agreements set forth in form and substance reasonably satisfactory to Buyer Parties, certifying as to: Section 9.4 (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a partyRelated Agreements);
(xii) evidenceall other documents, conditions, amounts or matters herein called for to be produced, delivered, released, paid or fulfilled at the Closing were so produced, delivered, released, paid and fulfilled.
4.1.2 All deliveries made and actions taken at the Closing are deemed to have occurred simultaneously as part of a single transaction and in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminatedthe proper sequence, and no Company shall action is deemed to have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors been taken and officers of no delivery is deemed to have been made until each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement above-mentioned actions and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingdeliveries were completed.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Silicon Laboratories Inc)
Deliveries at Closing. (a) At or prior On and subject to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(i) (A) a true, complete terms and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo conditions of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take Seller will deliver (or cause to be takendelivered) to Buyer stock certificates representing all of such further actionsSeller’s Shares, do endorsed in blank or accompanied by duly executed stock powers endorsed in blank, (ii) Sellers’ Representative will deliver to Buyer a counterpart to the Escrow Agreement executed by Sellers’ Representative, (iii) Sellers’ Representative will deliver to Buyer the Payoff Letters from each creditor to which Funded Indebtedness is owed as of the Closing Date, together with any termination statements on Form UCC-3 or cause other releases reasonably necessary or desirable to be doneevidence the satisfaction and release of any Liens on the assets of the Company arising in connection with such Funded Indebtedness, (iv) all such further things and execute (or cause the Company will deliver to be executed) all such further documents as may be reasonably requested Buyer the Option Cancellation Agreements executed by the other Parties Company and each Optionholder, (v) Buyer will make the payments required by Section 2(b), in order accordance with Section 2(b), (vi) Buyer will deliver to effectuate Sellers’ Representative counterparts to the consummation Escrow Agreement executed by Buyer and the Escrow Agent, (vii) North Castle will deliver to Buyer a letter acknowledging receipt of the Merger or Company Transaction Expenses owing to it and providing for the transactions termination of the Consulting Agreement, and (viii) upon receipt of the amounts contemplated by Section 2(b)(iii) and Section 2(b)(iv), the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party Company will pay the Option Cancellation Payments to the Optionholders pursuant to Section 2(g) and its Representatives, shall cause the appropriate Persons Sale Bonuses to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine Sale Bonus Recipients pursuant to be necessary either before, at or following the ClosingSection 2(h).
Appears in 1 contract
Deliveries at Closing. (a) At or prior to Closing Seller shall deliver the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Partiesfollowing:
(i) (A) a trueAny documents or certificates that are necessary to transfer to Purchaser good, complete clear and correct copy of marketable title to the written consent or JES Interest and the Enviro Interest, and all certificates and other agreement from the Stockholders, representing approval instruments and documents required by the holders of at least 98% of the outstanding shares of capital stock of HoldCo terms of this Agreement, the Merger and Agreement to be delivered by Seller at or prior to Closing or otherwise required in connection with the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;hereunder.
(ii) Seller shall deliver the Escrow Agreementopinion of Gerald E. Libby II, duly executed by Stockholder Representative;
(iii) certificates of good standing▇▇▇., dated as of the Closing Date (or▇▇ssery & Gillis, as necessaryLLP, the most recent practicable date)attorne▇▇ ▇▇ ▇aw, ▇▇▇▇▇el for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each CompanySeller, dated the Closing Date, in form and substance reasonably satisfactory to Buyer PartiesPurchaser and Purchasers counsel, certifying to the effect set forth Paragraph 5 hereof. In rendering the foregoing opinion, such counsel may rely as to: (i) to factual matters upon certificates or other documents furnished by officers and directors of Purchaser and by government officials and upon such other documents and data as such counsel deems appropriate as a basis for their opinions. Such counsel may specify the Charter Documents jurisdiction or jurisdictions in which they are admitted to practice, that they are not admitted to the Bar in any other jurisdiction or experts in the law of any other jurisdiction and that such Company, opinions are limited accordingly. If such counsel is not authorized to practice law in the Certificate State of Designation Connecticut and the Agreement Among Investors (ii) that there have been no amendments Commonwealth of Massachusetts, Purchaser may require Seller counsel to obtain an opinion from counsel authorized to practice law in such Charter Documents, the Certificate of Designation or the Agreement Among Investors, jurisdiction(s).
(iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company Seller shall have any remaining obligations thereunder;
(xiii) resignations (which shall include furnished Purchaser with an executed Employment Agreement containing covenants of confidentiality, non-solicitation and a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, covenant not to compete in substantially the form attached hereto as Exhibit D;and incorporated herein, to be executed at Closing. At Closing Purchaser shall deliver the following items to Seller:
(xiviv) documentary evidence of the termination of the Casino Management Agreement The Purchase Price as required and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms set forth in Paragraph 3 of the Leases;this Agreement.
(xxv) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately An executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity Shareholders Agreement for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) Enviro in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory attached hereto to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending be executed at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Sources: Purchase Agreement (Veridium Corp)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo Seller shall execute and/or deliver, as applicable, or cause caused to be executed and/or delivered, to Buyer Partiesthe following items, each (where applicable) properly executed:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standingcertificate, dated as of the Closing Date (orDate, as necessary, executed by the most recent practicable date), for the Companies in their respective jurisdiction(s) corporate secretary of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form Seller and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)Seller Parent, in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior Buyer, certifying in each case as to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents the organizational documents of Seller or approvals identified on Schedule 1.19(a)(x);
Seller Parent, as applicable and (xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (iy) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions approval of the board of directors (or board of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Companymanagers) of the directors and officers of each of the CompaniesSeller or Seller Parent, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreementapplicable, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or approving the transactions contemplated by the Transaction Documents;
(xxiiii) a FIRPTA Statement from each Stockholdercertificate, or the sole beneficial owner dated as of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposesClosing Date, but only in the case executed by an authorized officer of Stockholders oreach of Seller and Seller Parent, in form and substance satisfactory to Buyer, certifying in each case as to the case fulfillment of Stockholders that are disregarded entitiesthe matters referred to in Sections 5.1(a), their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2(b) and (c);
(xxiiiiii) a certificate statement, dated as of HoldCo’s Chief Financial Officer the Closing Date, in the form set forth in Treasury Regulation § 1.1445-2(b)(2) and made under penalties of perjury by Seller and Seller Parent, that (or among other executive vested with similar dutiesthings) neither Seller nor Seller Parent is a foreign Person;
(iv) the Assignment and Assumption Agreement in the form of Exhibit FA hereto;
(xxivv) evidencethe ▇▇▇▇ of Sale in the form of Exhibit B hereto;
(vi) the Landlord Consent;
(vii) the Noncompetition Agreement in the form of Exhibit C hereto;
(viii) the First Note and Second Note, in the form of Exhibit D and substance reasonably satisfactory Exhibit E, respectively, hereto;
(ix) the Security Agreement in the form of Exhibit F hereto;
(x) the Sublease Agreement in the form of Exhibit G hereto;
(xi) the Transition Services Agreement in the form to Buyer Parties, that be agreed upon by the Companies have taken Parties pursuant to Section 5.7;
(xii) all Required Consents other than the actions Delayed Required Consents (each of which Delayed Required Consents is set forth on Schedule 1.19(a)(xxiv2.8(a)(xii), solely to );
(xiii) the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofSchedule of Accrued Vacation; and
(xxvxiv) the fixed asset ledger Sublicense Agreement in the form of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingExhibit H hereto.
(b) At the Closing, Parent and/or Operator, as applicable, has deliveredBuyer shall deliver, or caused cause to be delivered, to Stockholder Representative or Seller the Exchange Agentfollowing items, each (where applicable) properly executed:
(i) the Escrow Agreement, duly executed by Parent and OperatorClosing Cash Consideration;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Partycertificate, dated as of the Closing Date, executed by the corporate secretary of Buyer, in form and substance reasonably satisfactory to HoldCoSeller, certifying as to: to (ix) the Charter Documents charter and bylaws of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iiiy) the resolutions approval of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or approving the transactions contemplated by the Transaction Documents. If ;
(iii) a Party certificate, dated as of the Closing Date, executed by an authorized officer of Buyer, in form and substance satisfactory to Seller, certifying fulfillment of the matters referred to in Sections 5.2(a) and (b); and
(iv) counterpart signature pages to the documents referenced in Section 2.8(a)(iv) through (xi).
(c) In connection with and following the Closing, Buyer, Seller and Seller Parent shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all to each other such instruments other documents and take all such actions agreements as may be reasonably necessary and desirable to consummate the requesting Party may reasonably determine to be necessary either before, at or following the Closingtransactions contemplated hereby.
Appears in 1 contract
Deliveries at Closing. 5.1 Deliveries of Seller and the Green Room Members. -----------------------------------------------
(a) At the Closing, and as a condition to Buyer's and IXL's obligation to consummate the transactions contemplated hereby, Seller shall deliver, or cause to be delivered, to Buyer, properly executed and dated as of the date hereof: (i) the ▇▇▇▇ of Sale and Assignment in the form of Exhibit "A" ---------- hereto (the "▇▇▇▇ of Sale"); (ii) the Assumption Agreement in the form of Exhibit "B" hereto (the "Assumption Agreement"); (iii) the Assignment and ----------- Assumption of Contracts in the form of Exhibit "C" hereto (the "Contract ----------- Assignment"); (iv) the Assignment and Assumption of Leases in the form of Exhibit "D" hereto (the "Lease Assignment"); (v) the Trademark Assignment in the ----------- form of Exhibit "E" hereto (the "Trademark Assignment"); (vi) an Agreement to be ----------- Bound to Registration Rights Agreement, substantially in the form of Exhibit "F" ----------- hereto executed by each Green Room Member (the "Agreement to be Bound to Registration Rights Agreement"); (vii) an Agreement to be Bound to Stockholders Agreement executed by each Green Room Member, substantially in the form of Exhibit "G" hereto; (viii) a closing certificate of Seller, substantially in the ----------- form of Exhibit "H" hereto; (ix) an Acknowledgment and Representation Letter ----------- executed by each Green Room Member in the form of Exhibit I attached hereto; (x) --------- Seller's opinion of counsel, substantially in the form of Exhibit "J" hereto; ----------- and (xi) such other documents as provided in Article VII hereof or as Buyer shall reasonably request.
(b) In addition to the foregoing, and as a further condition to Buyer's and IXL's obligation to consummate the transactions contemplated by this Agreement, at or prior to the Closing, HoldCo Seller and the Green Room Members shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
have (i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, obtained or caused to be delivered, to Stockholder Representative or obtained all of the Exchange Agent:
(iConsents listed on Schedule 5.1(b) the Escrow Agreement, duly executed by Parent hereto; and Operator;
(ii) delivered to Buyer a Certificate of Good --------------- Standing of Seller, and a copy of the Parent Closing Merger Consideration (in the case Articles of Parent) and the Operator Closing Merger Consideration (in the case Organization of Operator)Seller, in each case in accordance with Section 1.14;
(iii) a certificate of both as certified by the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents State of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowVirginia.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or The Seller will deliver, as applicable, or cause to be executed and/or delivered, to the Buyer Parties:the following at the Closing (or at such other time as stated below):
(i) each Ancillary Agreement (Aother than the Lenexa Purchase Agreement) a truenot specifically referred to in Section 3.2(a)(ii)-(xiii) below, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval duly executed by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this AgreementSeller, the Merger and Seller Representative and/or the transactions contemplated hereby Seller Stockholders (collectively, the “Written Consent”as applicable); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Payment Schedule, which will be delivered to the Buyer at least three (3) Business Days before the Closing Date;
(iii) a non-foreign affidavit from the Seller dated as of the Closing Date that conforms to the model certification set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv)(B);
(iv) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, Seller Representative and the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessEscrow Agent;
(v) documentary evidence a consent and estoppel certificate substantially in the form attached as Exhibit E from each landlord of the release Company’s Leased Real Property (other than the Company’s Leased Real Property in Thailand, provided that the Company complies with Section 7.3(b) with respect to such property);
(vi) (A) the Assignment of Intellectual Property, executed by the Seller and discharge Silpada International Holdings (and any other Subsidiaries as may be appropriate), and any and all other documents, agreements, certificates and other instruments as may be necessary to register any Intellectual Property in the name of the Buyer Sub or designee thereof, and (B) the Assignment of Trademarks, the Assignment of Copyrights and Assignment of Domain Names, executed by the Seller and Silpada International Holdings (and any guarantees other Subsidiaries as may be appropriate), and any and all other documents, agreements, certificates and other instruments as may be necessary to register the Trademarks and Copyrights constituting the Intellectual Property in the name of the Buyer Sub or Liens designee thereof;
(including, without limitation, all appropriate UCC financing statement amendments and termination statementsvii) affecting (A) the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (Consents set forth on Section 3.2(a)(vii) of the “Closing Liens”)Disclosure Schedule, in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior acceptable to the ClosingBuyer, and such other material Consents of third Persons necessary for the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate consummation of the Secretary of each Company, dated transactions contemplated under this Agreement and the Closing DateAncillary Agreements, in form and substance reasonably satisfactory acceptable to the Buyer Parties(it being understood and agreed that any Consent set forth on Section 4.3 of the Disclosure Schedule but not set forth on Section 3.2(a)(vii) of the Disclosure Schedule shall not be required to be delivered pursuant to this Section 3.2(a)(vii)), certifying and (B) evidence, in form and substance reasonably acceptable to the Buyer, that all Liens (other than Permitted Liens) on the Transferred Assets have been removed;
(viii) a statement of the Transaction Fees (the “Transaction Fees Statement”), which statement will be delivered to the Buyer at least two (2) Business Days prior to the Closing, accompanied by letters, which letters will be delivered at the Closing, signed by each Transaction Advisor and substantially in the form attached as to: Exhibit F;
(iix) a reasonably current certificate of existence or good standing of the Seller issued by the Secretary of State of the State of Kansas;
(x) a copy of the articles of incorporation of the Seller, certified by the Secretary of State of the State of Kansas; a copy of the bylaws of the Seller, certified by the Seller’s Secretary; and a copy of all consents, resolutions or similar actions of (A) the Charter Documents of such CompanySeller, certified by the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter DocumentsSeller’s Secretary, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (ivB) each Seller Stockholder who is not a natural personal, certified by the resolutions of the board of directors of respective Seller Stockholder, in each Company authorizing case (A) and (B) approving the transactions contemplated by this Agreement and the execution, delivery Ancillary Agreements;
(xi) payoff letters with respect to any Indebtedness (excluding any Indebtedness the Buyer Sub has agreed to assume) for borrowed money of the Seller or its Subsidiaries in a form reasonably acceptable to the Buyer and performance of this Agreement and each Transaction Document to which such Company is a partyits lenders;
(xii) evidencea certificate executed by an executive officer of the Seller, dated the Closing Date, certifying to the fulfillment of the conditions in form Sections 3.3(a) and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;3.3(b); and
(xiii) resignations releases in the form attached as Exhibit G (which shall include a release of all claims the “Seller Releases”), duly executed by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement Seller and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Seller Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has deliveredThe Buyer will deliver, or caused cause to be delivered, to Stockholder Representative or the Exchange AgentSeller the following at the Closing:
(i) the Escrow Agreement, duly executed by Parent and OperatorClosing Cash Payment to the Seller in accordance with the wire transfer instructions set forth on the Payment Schedule;
(ii) the Parent Closing Merger Consideration (in Escrow Amount to the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case Escrow Agent in accordance with Section 1.14its wire transfer instructions to the Buyer;
(iii) the Admin Escrow Amount to the Seller Representative in accordance with his wire transfer instructions to the Buyer;
(iv) the Transaction Fees to the Transaction Advisors on behalf of the Seller and/or the Seller Stockholders in accordance with the wire transfer instructions set forth on the Transaction Fees Statement;
(v) a certificate of executed by the Secretary of each Buyer PartyBuyer, dated the Closing Date, certifying to the fulfillment of the conditions in form Sections 3.4(a) and substance reasonably satisfactory to HoldCo, certifying as to: 3.4(b);
(ivi) a resale exemption certificate from the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect dated as of the Closing Date and (iii) that conforms to the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partymodel certification set forth in Kansas Administration Regulation Section 92-19-25b(c); and
(ivvii) any the Escrow Agreement and the other items or certificates described in Section 5.3 below.
Ancillary Agreements (cother than the Lenexa Purchase Agreement) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested executed by the other Parties in order to effectuate Buyer Parent and/or the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions Buyer Sub (as the requesting Party may reasonably determine to be necessary either before, at or following the Closingapplicable).
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo Seller shall execute and/or deliver, as applicable, deliver or cause to be executed and/or delivered, delivered to Buyer PartiesBuyer:
(i) (A) a truean assignment agreement, complete and correct copy substantially in the form attached as Exhibit D, to assign all of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect Equity Interests to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentBuyer;
(ii) (A) a copy, certified by the Escrow AgreementSecretary of Seller or Assistant Secretary of Seller, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date resolutions of its Board of Directors authorizing the execution and delivery of this Agreement and the Related Documents, and consummation of the Transaction, and in each case such resolutions shall be in full force and effect and not revoked, (orB) copies, as necessary, certified by the most recent practicable date), for the Companies in their respective jurisdiction(sSecretary or Assistant Secretary or Manager (or other equivalent officer) of organization and from each the Company, of the other states in which any resolutions of the Companies are qualified to do business as a foreign Person;
Company’s Board of Directors or Managers (iv) payoff letters or other evidence governing body) authorizing the execution and delivery of discharge in form this Agreement and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness the Related Documents, and consummation of the Companies (the “Closing Indebtedness”)Transaction, which and in each case such Closing Indebtedness resolutions shall be set forth on Schedule 1.19(a)(iv)in full force and effect and not revoked; provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xiC) a certificate of the Secretary or an Assistant Secretary or Manager (or equivalent officer) of each the Company certifying that attached thereto are true and complete copies of the Organizational Documents of the Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (iD) the Charter Documents names and signatures of such Companythe officers (or other authorized Persons) of Seller and the Company authorized to sign this Agreement, the Certificate of Designation Related Documents and the Agreement Among Investors (ii) that there have been no amendments other documents to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, be delivered hereunder and thereunder are true and correct on an attached incumbency certificate;
(iii) that such Charter Documentsthe original membership interest books (if any) and company minutes books (or their equivalent) (if any), as applicable, of the Certificate of Designation and the Agreement Among Investors, are in full force and effect Company;
(iv) duly executed resignations effective as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of from the directors and officers of each (or limited liability company managers) of the Companies, in substantially the form attached hereto as Exhibit DCompany;
(xivv) documentary evidence a counterpart of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Transition Services Agreement, each in form and substance reasonably satisfactory to Buyer Partiesduly executed by an authorized officer of Seller;
(xvvi) evidencea counterpart of the Transitional IP License, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event duly executed by an authorized officer of default exists under the Margaritaville AgreementSeller;
(xvivii) executed affidavits for all Real Property substantially a copy of the Players List in the form of Exhibit E attached heretoelectronic format described on Schedule 3.6(a)(vii), identifying the Recent Players and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably requestExclusive Players;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxiiviii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only certificate in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning form consistent with Treasury Regulations Section 1.1445-2(b)(2)2(b)(2)(iv) from Seller;
(xxiiiix) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) trademark assignment agreement, substantially in the form attached as Exhibit E (“Trademark Assignment”), duly executed by an authorized officer of Exhibit FSeller;
(xxivx) evidencea domain name assignment agreement, substantially in the form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxivattached as Exhibit F (“Domain Name Assignment”), solely duly executed by an authorized officer of Seller;
(xi) such affidavits or instruments as the Title Company may reasonably require to issue final policies of the extent title insurance conforming in all respects with the Buyer Parties have expressly requested in writing that the Companies take Pro-forma Title Insurance Policies and Additional Pro-forma Title Insurance Policies (with any such action after the date hereofaffidavits to be executed by Seller); and
(xxvxii) to the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days extent received by Seller prior to the Closing, a copy of the executed estoppel certificate pursuant to Section 6.4(c).
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, each of Buyer and LDC shall deliver or caused cause to be delivered, to Stockholder Representative or the Exchange Agent:
(i) to Seller the Escrow Agreement, duly executed by Parent and OperatorClosing Payment as provided in Section 3.1(a);
(ii) to Seller, a copy, certified by the Parent Closing Merger Consideration Secretary of Buyer, of (in A) the case resolutions of Parent) the Board of Directors of Buyer authorizing the execution and delivery of this Agreement and the Operator Closing Merger Consideration (in Related Documents, and consummation of the case of Operator)Transaction, and in each case such resolutions shall be in accordance with Section 1.14;
full force and effect and not revoked, (iiiB) a certificate of the Secretary (or equivalent officer) of each Buyer Partycertifying that attached thereto are true and complete copies of the Organizational Documents of Buyer, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (iC) the Charter Documents names and signatures of such the representatives of Buyer Partyauthorized to sign this Agreement, (ii) that there have been no amendments to such Charter the Related Documents and that the other documents to be delivered hereunder and thereunder are true and correct on an attached incumbency certificate;
(iii) to Seller, a copy, certified by the Secretary of LDC, of (A) the resolutions of the Board of Directors of LDC authorizing (1) the execution and delivery of this Agreement and the Related Documents, and consummation of the Transaction, and (2) LDC’s Sovereign Immunity Waivers in favor of Seller and each of the Seller Indemnified Parties and their respective Representatives for the enforcement of any obligation arising under the Agreement or the Related Documents to which it is a party by suit or other Proceeding, and in each case such Charter Documents are resolutions shall be in full force and effect as and not revoked, (B) a certificate of the Closing Date Secretary (or equivalent officer) of LDC certifying that attached thereto are true and complete copies of the Organizational Documents of LDC, (C) the names and signatures of the representatives of LDC authorized to sign this Agreement, the Related Documents and the other documents to be delivered hereunder and thereunder are true and correct on an attached incumbency certificate, and (iiiD) the resolutions of the board Tribe (as the shareholder of directors (or equivalent governing bodyLDC) of each Buyer Party authorizing the transactions contemplated by this execution and delivery of the Agreement and the execution, delivery and performance of this Agreement and each Transaction Document Related Documents to which such Buyer Party LDC is a party; and, and consummation of the Transaction, and in each case such resolutions shall be in full force and effect and not revoked;
(iv) any other items or certificates described in Section 5.3 below.a counterpart of the Transition Services Agreement, duly executed by an authorized officer of Buyer;
(cv) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation a counterpart of the Merger or Transitional IP License, duly executed by an authorized officer of Buyer;
(vi) a counterpart of the transactions contemplated Trademark Assignment, duly executed by an authorized officer of Buyer;
(vii) a counterpart of the Transaction Documents. If a Party shall reasonably determine that any further conveyanceDomain Name Assignment, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingduly executed by an authorized officer of Buyer.
Appears in 1 contract
Sources: Equity Purchase Agreement (Isle of Capri Casinos Inc)
Deliveries at Closing. At the Closing:
(a) At or prior to The Sellers and the Closing, HoldCo shall execute and/or deliverTarget Companies, as applicable, or cause shall deliver to be executed and/or delivered, to Buyer Partiesthe Buyer:
(i) (A) a truecertificates for the Shares in negotiable form, complete duly endorsed in blank, or with separate stock transfer powers attached thereto and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentsigned in blank;
(ii) the Escrow Agreement, duly executed by Stockholder RepresentativeCompany Officer’s Certificate;
(iii) certificates of good standingThe stock books, dated as stock ledgers, minute books, and other corporate records of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonTarget Companies;
(iv) payoff letters or Resignations and releases dated the Closing Date of B▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and R▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ substantially in the forms attached hereto as Exhibits I and J, respectively, and such other resignations and/or releases in form and substance satisfactory to the Buyer of such other directors of the Target Companies as may be designated by the Buyer;
(v) All required assignments, permits, estoppels and consents pursuant to Section 7.7;
(vi) A certificate dated the Closing Date from the Company’s Secretary substantially in the form attached hereto as Exhibit G;
(vii) A certificate dated the Closing Date from the Secretary of each Target Subsidiary substantially in the form attached hereto as Exhibit H;
(viii) Evidence of the termination and payment in full of the Abelco Financing, including without limitation a “pay-off” letter from Abelco;
(ix) Assignments by the employees listed on Section 2.3 of the Disclosure Schedule of any and all of their right, title and interest into any Intellectual Property of the Company;
(x) The documents from NJDEP required by Section 6.2(b) and the evidence of discharge approval of any “parachute payments” under Section 280G of the Code required by Section 6.2(c); and
(xi) The legal opinion of counsel to the Sellers substantially in the form attached hereto as Exhibit E;
(xii) Release documents with respect to all Mortgages, in recordable form and in a form and substance reasonably satisfactory to Buyer Parties and its counsel, together with respect any additional documentation reasonably required to all Indebtedness completely satisfy and release such Mortgages of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv)record; provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;and
(xiii) resignations (which shall include a release of all claims All other documents, instruments and writings required to be delivered by the applicable director Sellers or officer against each Company) of the directors and officers of each of Target Companies at or prior to the Companies, Closing Date pursuant to this Agreement or otherwise required in substantially the form attached hereto as Exhibit D;connection herewith.
(xivb) documentary evidence of The Buyer shall deliver to the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;Sellers:
(xvi) evidenceThe Purchase Price as calculated in accordance with Section 2.1, and subject to adjustment as set forth in form and substance reasonably satisfactory to Buyer PartiesSection 2.5, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;as follows:
(xviA) executed affidavits for all Real Property From the Purchase Price, the Buyer will deposit an amount equal to $7,000,000 (the “Escrow Amount”) with the escrow agent (the “Escrow Agent”) designated in the escrow agreement (the “Escrow Agreement”), substantially in the form of Exhibit E attached F hereto, to be entered into at the Closing by the Buyer, the Stockholders’ Representative on behalf of the Sellers and such other affidavits relating the Escrow 8 Consolidated Vision Group, Inc Strictly Confidential Agent, which shall provide for: (i) an escrow of $1,000,000 with respect to the New Title Policy as purchase price adjustment set forth in Section 2.5 (the Title Insurer may reasonably request;
“Working Capital Escrow”); and (xviiii) originals or copies an escrow of $6,000,000 beginning on the Closing Date and ending on the later to occur of the Warranty Expiration Date and the date that all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to claims by the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) Buyer Indemnitees against any landlord consents required Seller pursuant to the terms of the Leases;
(xx) the Customer Database; providedSection 10 or otherwise are finally adjudicated or resolved, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only set forth in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofEscrow Agreement; and
(xxvB) The Buyer will pay to the fixed asset ledger Sellers in cash at the Closing by wire transfer of immediately available funds the balance of the Companies as Purchase Price, after deposit of the last day Escrow Amount, and subject to adjustment as provided in Section 2.5, to the accounts and in the amounts set forth in Section 2.3(b) of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and OperatorDisclosure Schedules;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;The Buyer Officer’s Certificate; and
(iii) a certificate of All other documents, instruments and writings required to be delivered by the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory at or prior to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by pursuant to this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described otherwise required in Section 5.3 belowconnection herewith.
(c) Each Party and its Representatives The Buyer shall take (or cause to be takenpay the amounts set forth in Section 2.1(a) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or Disclosure Schedules to the transactions contemplated by lenders under the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any Ableco Financing to accounts set forth in such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingschedule.
Appears in 1 contract
Deliveries at Closing. (a) At the Closing (or prior to earlier if indicated below), Seller and the Closing, HoldCo shall execute and/or deliverCompany, as applicable, shall deliver or cause to be executed and/or delivered, delivered to Buyer Partiesthe following:
(i) (A) a true, complete and correct copy duly executed certificate from an authorized Person of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger Seller and the transactions contemplated hereby (collectively, Company in the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standingform attached hereto as Exhibit A, dated as of the Closing Date Date, certifying that the conditions set forth in Section 12.2(a) and Section 12.2(b) have been satisfied;
(orii) an assignment in lieu of certificate in the form of Exhibit B duly executed by Seller;
(iii) a certificate duly executed by Seller in the form of Exhibit C, as necessary, meeting the most recent practicable daterequirements of Treasury Regulation §1.1445-2(b)(2), for certifying that Seller is not a “foreign person” or a “disregarded entity” within the Companies in their respective jurisdiction(s) meaning of organization and from each Section 1445 of the other states in which any of the Companies are qualified to do business as a foreign PersonCode;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessReserved;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminatedresignations of, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of releases from, each of the Companies, in substantially the form attached hereto individuals who serves as Exhibit D;
(xiv) documentary evidence an officer or manager of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, Company in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxivvi) evidenceall corporate minute books and authorizing resolutions or written consents and related corporate records of the Company;
(vii) the Closing Statement;
(viii) all consents, bank signatory cards or other approvals necessary in order to (i) permit any Persons specified by Buyer in writing to Seller not later than ten (10) Business Days prior to Closing to control, immediately following the Closing, the Bank Accounts, and (ii) remove the authority or approval of all signatories thereto (unless Buyer directs Seller to allow any of such signatories to remain authorized to sign for the Bank Accounts) to control or access, immediately following the Closing and thereafter, the Bank Accounts;
(ix) duly executed, acknowledged and recordable releases of all Liens that encumber the Target Interests, except for those Liens permitted pursuant to Section 2.1, and of all other Liens securing Indebtedness for Borrowed Money by Seller, its Affiliates or the Company that encumber the Oil & Gas Assets, except for Permitted Encumbrances;
(x) at least three (3) Business Days prior to the Closing, (x) a debt payoff letter setting forth the total amounts payable pursuant to the Existing Credit Agreement to fully satisfy all principal, interest, fees, costs, and expenses owed thereunder as of the anticipated Closing Date (and the daily accrual thereafter), together with appropriate wire instructions, and agreement from the administrative agent under the Existing Credit Agreement that upon payment in full of all such amounts owed, all Indebtedness for Borrowed Money under the Existing Credit Agreement shall be discharged and satisfied in full, the Loan Documents (or applicable similar term in the Existing Credit Agreement) shall be terminated and all liens on the Company and its Subsidiaries and their respective assets and equity securing the Existing Credit Agreement shall be released and terminated (other than, in form each case, any provisions and substance reasonably satisfactory to Buyer Partiesreimbursement, indemnity and contingent obligations for which no claim has been made that expressly survive the Companies have taken termination of the actions set forth on Schedule 1.19(a)(xxivExisting Credit Agreement) (the “Payoff Letter”), solely and (y) applicable release documents necessary to evidence the extent release and termination of all liens on the Buyer Parties have expressly requested Company and its Subsidiaries and their respective assets and equity securing, and any guarantees by the Company and its Subsidiaries in writing that the Companies take any respect of, such action after the date hereofExisting Credit Agreement;
(xi) Reserved; and
(xxvxii) the fixed asset ledger Post-Closing Letter Agreements with Buyer duly executed by Seller and each of the Companies as Persons listed on Schedule 2.10(a)(xii), in each case, in substantially the form of Exhibit H with, in the case of the last day Post-Closing Letter Agreement to be executed by Seller, adjustments as reasonably necessary to reflect the differences between the Persons listed on Schedule 2.10(a)(xii) and Seller in the context of the most recent calendar month ending at least 30 days prior to representations, warranties and other descriptive provisions of the ClosingPost-Closing Letter Agreement.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused Buyer shall deliver to be delivered, to Stockholder Representative or Seller and the Exchange AgentCompany the following:
(i) the Escrow Agreement, a duly executed by Parent certificate from an officer of Buyer in the form attached hereto as Exhibit E, dated as of the Closing Date, certifying that the conditions set forth in Section 12.3(a) and OperatorSection 12.3(b) have been satisfied;
(ii) by wire transfer of immediately available funds to the Parent Closing Merger Consideration (account designated in writing by Seller to Buyer in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator)Statement, in each case in accordance with Section 1.14consideration for the Target Interests, an amount equal to the Closing Cash Payment, minus the Deposit;
(iii) a certificate by wire transfer of immediately available funds to the Secretary Escrow Agent, the aggregate of each Buyer Party, dated all Title Defect Amounts and Environmental Defect Amounts required to be deposited into the Closing Date, in form and substance reasonably satisfactory Defect Escrow Account pursuant to HoldCo, certifying as to: the terms of this Agreement;
(iiv) the Charter Documents Reserved;
(v) Reserved;
(vi) on behalf of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement Seller and the executionCompany, delivery and performance an aggregate amount equal to the Existing Credit Agreement Payoff Amount to the applicable payees set forth in the Payoff Letter, by wire transfer of this Agreement and each Transaction Document immediately available funds to which the accounts designated by such Buyer Party is a partypayees in such Payoff Letter; and
(ivvii) any other items or certificates described in Section 5.3 below.
(c) Each Party Post-Closing Letter Agreements with each of Seller and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation each of the Merger or the transactions contemplated Persons listed on Schedule 2.10(a)(xii), duly executed by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingBuyer.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Civitas Resources, Inc.)
Deliveries at Closing. (a) At or prior Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, HoldCo except in the case of the Company Transaction Expense Certificate and the Company Preferred Consideration Certificate, which shall execute and/or deliverbe delivered two Business Days prior to Closing, as applicable, or cause the Company shall deliver to be executed and/or delivered, to Buyer PartiesAcquiror:
(i) (A) a true, complete written statement setting forth all accrued and correct copy unpaid Transaction Expenses of the written consent or other agreement from Company, which shall include the Stockholders, representing approval by respective amounts and wire transfer instructions for the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby payment thereof (collectively, the “Written ConsentCompany Transaction Expense Certificate”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) a written statement setting forth the Escrow Agreement, duly executed by Stockholder Representative;
(iiirespective amounts payable to each holder of Company Preferred Stock entitled to receive the Per Share Consideration pursuant to Section 1.5(b)(i) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing IndebtednessCompany Preferred Consideration Certificate”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a copy of the certificate of merger with respect to the Secretary Merger (the “Certificate of each Buyer PartyMerger”), dated duly executed by the Company;
(iv) a certificate signed on behalf of the Company by an authorized officer of the Company certifying that, to the knowledge and belief of such officer, and solely in his or her capacity as an officer of the Company, the conditions set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(c) as they relate to the Company have been satisfied;
(v) the certificate required under Section 6.14; and
(vi) the other documents, instruments or certificates required to be delivered by the Company at or prior to the Closing Datepursuant to Section 7.2.
(b) Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, except in form the case of the Acquiror Financing Certificate and substance reasonably satisfactory Acquiror Transaction Expense Certificate, which shall be delivered two Business Days prior to HoldCoClosing, certifying as to: Acquiror shall deliver to the Company:
(i) a certificate (the Charter Documents “Acquiror Financing Certificate”), signed by the secretary of such Buyer PartyAcquiror, certifying (iiA) that there have the Acquiror Stockholder Approval has been no amendments to such Charter Documents obtained and that such Charter Documents are remains in full force and effect effect, (B) the number of shares of Acquiror Class A Common Stock included in the Acquiror Stock Redemption, if any, and the aggregate amount of cash proceeds that will be required to complete the Acquiror Stock Redemption, (C) the number of shares of Acquiror Class A Common Stock to be outstanding as of the Closing Date after giving effect to the Acquiror Stock Redemption; (D) the amount of Available Cash as of the Reference Time and (E) that the Available Cash as of immediately prior to the Closing equals or exceeds the Minimum Cash Balance after giving effect to the Acquiror Stock Redemption, if any;
(ii) a written statement setting forth all accrued Transaction Expenses of Acquiror, which shall include the respective amounts and wire transfer instructions for the payment thereof (the “Acquiror Transaction Expense Certificate”);
(iii) evidence from the resolutions Secretary of State of the board State of directors Delaware of the filing of the Acquiror A&R Charter with the Secretary of State of the State of Delaware in accordance with Section 2.3(d) and evidence from Acquiror of the adoption of the Acquiror A&R Bylaws;
(iv) a certificate signed on behalf of Acquiror by an authorized officer of Acquiror certifying that, to the knowledge and belief of such officer, and solely in his or equivalent governing bodyher capacity as an officer of Acquiror, the conditions set forth in Section 7.3(a), Section 7.3(b) of each Buyer Party authorizing and Section 7.3(c) as they relate to Acquiror have been satisfied;
(v) the transactions contemplated other documents, instruments or certificates required to be delivered by this Agreement and Acquiror at or prior to the execution, delivery and performance of this Agreement and each Transaction Document Closing pursuant to which such Buyer Party is a partySchedule 1.12; and
(ivvi) any the other items documents, instruments or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause required to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested delivered by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, Acquiror at or following prior to the ClosingClosing pursuant to Section 7.3.
Appears in 1 contract
Sources: Merger Agreement (Fortress Value Acquisition Corp. II)
Deliveries at Closing. At the Closing:
(a) At or prior to the ClosingSeller shall, HoldCo and Parent shall execute and/or delivercause Seller to, as applicable, deliver or cause to be executed and/or delivereddelivered to Purchaser, to Buyer Partiesthe following:
(i) (A) a true, complete and correct copy B▇▇▇ of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow AgreementSale, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization Seller and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the CompaniesParent, in substantially the form attached hereto as Exhibit DB (the “B▇▇▇ of Sale”);
(xivii) documentary evidence of the termination of the Casino Management Agreement an Assignment and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Assumption Agreement, each duly executed by Seller and Parent, in substantially the form attached hereto as Exhibit C (the “Assignment and substance reasonably satisfactory to Buyer PartiesAssumption Agreement”);
(xviii) evidencea Power of Attorney from Seller, duly executed by Seller and duly notarized, in substantially the form attached hereto as Exhibit D (the “Power of Attorney”);
(iv) a Pharmacy Letter from each pharmacy of Seller, each duly executed by Seller and duly notarized, in substantially the form attached hereto as Exhibit E (the “Pharmacy Letter”);
(v) releases, in form and substance reasonably satisfactory to Buyer PartiesPurchaser, that Margaritaville has confirmed that no event evidencing discharge, removal and termination of default exists under all Liens (other than Permitted Liens) to which any Transferred Assets being conveyed at the Margaritaville AgreementClosing are subject, which releases shall be effective at or prior to the Closing;
(xvivi) executed affidavits for all Real Property substantially the officer’s certificate referenced in Section 5.4(c) hereto;
(vii) a certification from Seller in accordance with United States Treasury Regulation Section 1.1445-2(b)(2)(i) and in the form of Exhibit E attached hereto, and such other affidavits relating to provided in United States Treasury Regulation Section 1.1445-2(b)(2)(iii)(B) (the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control“FIRPTA Certificate”);
(xixviii) any landlord consents Certificates of Title to the Motor Vehicles, duly endorsed, completed and acknowledged for transfer;
(ix) copies of the “pay-off” letters in connection with the repayment of the indebtedness of Seller pursuant to Section 8.19(a) and Section 8.20 hereto and the letters confirming that all Liens relating to such indebtedness will be removed effective upon payment of the amount set forth in the pay-off letters;
(x) a Trademark Assignment Agreement, duly executed by Seller and Parent and duly notarized, in substantially the form attached hereto as Exhibit F (the “Trademark Assignment Agreement”);
(xi) the Employment Agreements contemplated in Section 5.4(l) hereto;
(xii) the Non-Competition Agreements contemplated in Section 5.4(m) hereto; and
(xiii) such other duly executed documents and certificates as may be required to be delivered by Seller pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not this Agreement or as may be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated requested by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days Purchaser prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has deliveredshall deliver, or caused cause to be delivereddelivered to Purchaser, to Stockholder Representative or the Exchange Agentfollowing:
(i) the Escrow Agreement, certificates referenced in Section 5.4(d) hereto; and
(ii) such other duly executed documents and certificates as may be required to be delivered by Parent and Operatorpursuant to the terms of this Agreement or as may be reasonably requested by Purchaser prior to the Closing.
(c) Purchaser shall deliver, or cause to be delivered to Seller, the following:
(i) the Closing Date Cash Payment by wire transfer of immediately available funds to the account or accounts of Seller designated by Seller no later than twenty-four (24) hours prior to the Closing;
(ii) the Parent Closing Merger Consideration B▇▇▇ of Sale, duly executed by Purchaser (in the case or any wholly owned, direct or indirect subsidiaries of Parent) and the Operator Closing Merger Consideration (in the case of OperatorPurchaser to which an Assumed Contract is assigned), in each case in accordance with Section 1.14;
(iii) a certificate the Assignment and Assumption Agreement, duly executed by Purchaser (or any wholly owned, direct or indirect subsidiaries of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory Purchaser to HoldCo, certifying as to: which an Assumed Contract is assigned);
(iiv) the Charter Documents Power of such Buyer PartyAttorney, duly executed by Purchaser;
(ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iiiv) the resolutions of officer’s certificate referenced in Section 5.5(c) hereto;
(vi) the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated Trademark Assignment Agreement, duly executed by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyPurchaser; and
(ivvii) any such other items or duly executed documents and certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause as may be required to be taken) all such further actions, do (delivered by Purchaser pursuant to the terms of this Agreement or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order Seller prior to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
(d) Purchaser shall deliver, or cause to be delivered to Parent, the following:
(i) the officer’s certificate referenced in Section 5.5(c) hereto; and
(ii) such other duly executed documents and certificates as may be required to be delivered by Purchaser pursuant to the terms of this Agreement or as may be reasonably requested by Parent prior to the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Standard Management Corp)
Deliveries at Closing. (a) At or prior to the Closingtime of closing hereunder, HoldCo Seller shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Partiesdeliver the following original documents for the Property:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect Special warranty deed conveying title to the shares of capital stock of HoldCo held Property to Purchaser (or its nominee, assignee or the entities designated by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated Purchaser as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related taking title to the operation of the Casino Property) in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;EXHIBIT "B" (modified as necessary to conform to local law) free and clear of all liens, encumbrances and exceptions whatsoever, save and except only for the Permitted Exceptions.
(xivii) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇Duly executed Quit-Claim ▇▇▇▇ ▇▇▇▇▇ Agreementof Sale in the form attached as EXHIBIT "C".
(iii) Appropriate "Seller's Affidavit" or other acceptable evidence addressed to the Title Insurer attesting to the absence of liens, lien rights, rights of parties in possession (other than Tenant) and other encumbrances arising under Seller (other than the Permitted Exceptions) so as to enable Title Insurer to delete the "standard" exceptions far such matters from Purchaser's owner's policy of title insurance for the Property and otherwise insure any "gap" period occurring between the closing and the recordation of the closing documents.
(iv) Duly executed Assignment and Assumption of Agreement for each the Lease (the "Lease Assignment") in the form attached as EXHIBIT "D", together with all of the documents assigned thereby.
(v) An estoppel certificate relating to the Lease from Tenant in the form and substance reasonably satisfactory required by the Lease. The estoppel certificate shall be certified to Buyer Parties;Purchaser and its nominee, assignee and/or the entities designated by Purchaser not later than five (5) days after the Effective Date. At a minimum, the estoppel certificate must be certified to Inland Western Blytheville, L.L.C, a Delaware limited liability company, its lenders, successors and assigns
(xvvi) evidenceDuly executed Assignment of Licenses, in form Permits, Plans, Contracts, Warranties, and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under Intangible Property (the Margaritaville Agreement;
(xvi"License Assignment") executed affidavits for all Real Property substantially in the form attached as EXHIBIT "E", together with the consent of Exhibit E attached hereto, and the issuer thereof to such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents assignment if required pursuant to by the terms of the Leases;
(xx) applicable warranty; in the Customer Database; providedevent that the issuer of any warranty charges a fee in connection with the assignment or requires that any work be performed in connection with the assignment, however, that physical delivery then such fee and the cost of work shall be paid by the Seller at the Closing. Purchaser shall advise Seller in writing by the end of the Customer Database separate from the Companies information systems shall Inspection Period as to whether or not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation Purchaser accepts Exhibits B and C of the Merger License Assignment and Seller shall then advise Purchaser in writing whether or the transactions contemplated not Seller will revise said exhibits. If Purchaser gives no such notice by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner end of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposesInspection Period, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory then Purchaser shall be deemed to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingapproved said exhibits.
(bvii) At the ClosingNotice addressed to Tenant, Parent and/or Operatorsigned by Seller, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate providing notice of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as sale of the Closing Date Property and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement directing Tenant to send future rent and the execution, delivery and performance of this Agreement and each Transaction Document notices to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowPurchaser.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Sources: Real Estate Purchase Contract (Inland Western Retail Real Estate Trust Inc)
Deliveries at Closing. At Closing:
(a) At or prior Each Seller shall deliver the following to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesLufkin:
(i) (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal an irrevocable membership interest transfer power with respect to his or its Interest and such additional instruments of transfer of such Interest as Lufkin may reasonably request to vest in Lufkin all the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentright, title and interest in and to such Interest;
(ii) all other instruments and documents as may be reasonably required to consummate the Escrow Agreement, transactions contemplated hereby; and
(iii) a certificate of non-foreign status satisfying the requirements of Treasury Regulations Section 1.1445-2(b).
(b) Each Officer shall deliver his duly executed employment agreement to Lufkin.
(c) The Sellers, collectively, shall deliver the following to Lufkin:
(i) a copy of each consent, approval, waiver or authorization of, or filing, registration or qualification with, any Governmental Entity or any other Person necessary for the consummation of the transactions contemplated by Stockholder Representativethis Agreement;
(ii) a written instrument from McGladrey Capital Markets LLC acknowledging its receipt of any and all fees and commissions payable to it by the Sellers or the Company with respect to the transaction;
(iii) certificates of good standing, dated as a written instrument from the holders of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) Member Loans acknowledging repayment of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Personsuch Member Loans;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties written instruments (A) certifying the compliance by the Sellers with respect to all Indebtedness the requirements of the Companies section of the Operating Agreement entitled “Withdrawal of Membership and Transfer of Ownership” and (B) evidencing the “Closing Indebtedness”), which such Closing Indebtedness shall be waiver by the Company and the Sellers of their respective rights to purchase the Interests set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities in such section of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessOperating Agreement;
(v) documentary evidence copies of all documents and instruments, duly executed by the Company, necessary to lift and/or release any Encumbrances relating to the Company Credit Agreement; and
(vi) certificates issued by appropriate Governmental Entities evidencing (A) the due organization, valid existence and good standing of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted EncumbrancesCompany, as applicable (of a date not more than five calendar days prior to the “Closing Liens”)Date, in form its jurisdiction of organization and substance (B) the due registration or qualification of the Company as a foreign limited liability company, as of a date not more than five calendar days prior to the Closing Date, or such longer period as is reasonably satisfactory practicable under the circumstances, in each of the other jurisdictions specified in Schedule 4.1(a) hereto.
(d) Lufkin shall deliver:
(i) to Buyer Partieseach Seller, by wire transfer of immediately available funds, the amount set forth opposite such Seller’s name in Annex 2 hereto;
(ii) to each Seller a Holdback Letter of Credit in the amount set forth for such Seller in the column with the heading “Initial Letter of Credit Amount” in Annex 3 hereto;
(iii) to each Officer his employment agreement, duly executed by Lufkin.
(iv) to the Sellers a copy of each consent, approval, waiver or authorization of, or filing, registration or qualification with, any Governmental Entity or any other Person necessary for the consummation of the transactions contemplated by this Agreement;
(v) to the Sellers a certificate issued by the appropriate Governmental Entity evidencing its due organization, valid existence and good standing, as of a date not more than five calendar days prior to the Closing Date, in the State of Texas;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) Sellers a certificate certified copy of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by Lufkin approving this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document transactions contemplated hereby in a form reasonably acceptable to which such Company is a partythe Sellers;
(xiivii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of Sellers all Leases other instruments and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order required to effectuate the consummation of the Merger or consummate the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closinghereby.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Lufkin Industries Inc)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Buyer shall execute and/or deliver, as applicable, or cause deliver to be executed and/or delivered, to Buyer Partiesthe Seller:
(i) the Purchase Price, payable as set forth in Section 1.02;
(Aii) a true, complete certificate of an authorized officer of the Buyer certifying to the fulfillment of the conditions set forth in Sections 6.03(a) and correct (b);
(iii) a copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% resolutions of the outstanding shares Buyer's Board of capital stock of HoldCo Directors, authorizing the execution, delivery and performance of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies certified by an authorized officer of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentBuyer;
(iiiv) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, Buyer and the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessSeller;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties[intentionally omitted];
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate[intentionally omitted];
(vii) at least one Business Day prior the Transitional Trademark License Agreement referred to the Closing, the Closing Indebtedness Certificate;in Section 5.07; and
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form such other instruments and substance certificates as may be reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims requested by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingSeller.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused the Seller shall deliver to be delivered, to Stockholder Representative or the Exchange AgentBuyer:
(i) all certificates representing Subsidiary Stock duly endorsed in blank or accompanied by stock powers duly endorsed in blank;
(ii) a certificate of the Seller certifying to the fulfillment of the conditions set forth in Sections 6.02(a) and (b);
(iii) a copy of the resolutions of (i) the Seller's Board of Directors and (ii) the Board of Directors of each Seller Subsidiary, authorizing the execution, delivery and performance of this Agreement, certified by an authorized officer of the Seller or such Seller Subsidiary, as the case may be;
(iv) copies of the Closing Consents;
(v) the Escrow Agreement, duly executed by Parent the Buyer and Operatorthe Seller;
(iivi) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14[intentionally omitted];
(iiivii) a [intentionally omitted];
(viii) the opinion of Seller's counsel, ▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP, to be delivered pursuant to Section 6.02(j);
(ix) the certificates to be delivered pursuant to Sections 6.02(m), (n) and (o);
(x) the minute books, stock register certificate of the Secretary books and stock record books of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: Seller Subsidiary;
(ixi) the Charter Documents of such Buyer Party, estoppel certificates to be delivered pursuant to Section 6.02(r);
(ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iiixii) the resolutions ▇▇▇▇ of Sale and Assignment to be delivered pursuant to Section 6.02(v);
(xiii) the board of directors Transitional Trademark License Agreement referred to in Section 5.07;
(or equivalent governing bodyxiv) of each Buyer Party authorizing the transactions contemplated by this Agreement and documents evidencing the execution, delivery and performance of this Agreement and each Transaction Document releases referred to which such Buyer Party is a partyin Section 6.02(p);
(xv) the documents evidencing the materials to be delivered pursuant to Section 6.02(x); and
(ivxvi) any such other items or instruments and certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingBuyer.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo Sellers shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesPurchaser, the following:
(i) (A) a true, complete bill of sale and correct copy assignment to validly transfer title to the ▇▇▇▇haser of the written consent or other agreement from the StockholdersPurchased Assets, representing approval by the holders free and clear of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect Liens in form reasonably acceptable to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentPurchaser;
(ii) the Escrow Agreement, duly executed officer's certificates contemplated by Stockholder RepresentativeSections 6.1(a) and 6.1(b);
(iii) certificates of good standingall consents, dated as of the Closing Date (or, as necessary, the most recent practicable date), waivers and approvals obtained by Sellers that are required for the Companies in their respective jurisdiction(s) consummation of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxviv) the fixed asset ledger of the Companies such other duly executed documents, instruments and certificates as of the last day of the most recent calendar month ending at least 30 days prior may be necessary or appropriate to the Closingbe delivered by Sellers pursuant to this Agreement.
(b) At the Closing, Parent and/or Operator, as applicable, has deliveredPurchaser shall deliver, or caused cause to be delivered, to Stockholder Representative Sellers or the Exchange Agentthird parties designated by Sellers at least two (2) Business Days prior to Closing, the following:
(i) an amount of cash equal to the Escrow Agreement, duly executed adjusted Purchase Price by Parent and Operatorwire transfer of immediately available same day funds to an account or accounts designated by Sellers at least two Business Days prior to the Closing Date;
(ii) to the Parent Closing Merger Consideration (in holders of the case Executory Contracts, an amount of Parent) and cash equal to the Operator Closing Merger Consideration (in the case of Operatorcure costs set forth on Schedule 2.3(e), in each case in accordance with Section 1.14;
(iii) a certificate to the Sellers on behalf of the Secretary employees of each Buyer PartySellers who are not offered employment by Purchaser, dated the Closing Date, an amount of cash equal to any severance payments and any applicable WARN Act obligations described in form and substance reasonably satisfactory to HoldCo, certifying as to: Section 5.13;
(iiv) the Charter Documents officer's certificates contemplated by Section 6.2(a);
(v) all consents, waivers and approvals obtained by Purchaser or its Affiliates that are required for the consummation of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyAgreement; and
(ivvi) any such other items or duly executed documents, instruments and certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger necessary or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingdelivered by Purchaser pursuant to this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Outsource International Inc)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo in addition to the other obligations of the Seller set forth herein, the Seller shall execute and/or deliver, as applicable, or cause deliver to be executed and/or delivered, to Buyer Partiesthe Purchaser:
(i) (A) a truestock certificates representing the Interests in Acquired Subsidiaries that are corporations, complete duly endorsed for transfer or with stock powers affixed thereto executed in blank in proper form for transfer, and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect evidence sufficient to transfer to the shares of capital stock of HoldCo held by Purchaser the Stockholders that executed the Written ConsentInterests in all other Acquired Subsidiaries;
(ii) a duly executed b▇▇▇ of sale, substantially in the form of Exhibit A attached hereto (the "B▇▇▇ of Sale"), transferring the Acquired Assets to the Purchaser;
(iii) all other conveyancing documents reasonably necessary or appropriate to transfer to the Purchaser the Interests and the Acquired Assets, including, as applicable, the following: special warranty deeds with covenants against grantor's acts and in customary form for the jurisdiction in which the Owned Real Property is located; assignments and assumptions of leases together with any reasonably necessary declarations or other filings to convey each lease specifically assumed by the Purchaser under this Agreement; customary instruments of assignment or transfer, in form suitable for recording in every appropriate office or bureau, with respect to each trademark, copyright, or other item of Intellectual Property requiring such an assignment and transferred to the Purchaser hereunder;
(iv) the Acquired Assets by making the Acquired Assets available to the Purchaser at their present locations;
(v) the assignment and assumption agreement to be entered into between the Seller and the Purchaser (the "Assignment and Assumption Agreement") substantially in the form of Exhibit B attached hereto, duly executed by the Seller evidencing the assignment and assumption by the Purchaser of the Assumed Liabilities;
(vi) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, Seller and the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses CertificateSelling Subsidiaries;
(vii) at least one Business Day prior to the ClosingTransition Services Agreement, duly executed by the Closing Indebtedness CertificateSeller and the Selling Subsidiaries;
(viii) the Closing CertificateCollection Services Agreement, in duly executed by the manner contemplated in Section 1.17(a)Seller;
(ix) the Consideration SpreadsheetLicense Agreement, in duly executed by the manner contemplated in Section 1.14(e)Seller and the Selling Subsidiaries;
(x) those consents or approvals identified on Schedule 1.19(a)(xthe Acquired Subsidiaries Releases, duly executed by the Seller Entities (other than the Acquired Subsidiaries);
(xi) a certificate the DVI Releases, duly executed by the Seller Entities; and
(xii) certificates of officers of the Secretary of each Company, dated the Closing Date, in form Seller and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date Selling Subsidiaries as to the matters set forth in Sections 6.3(a) and (ivb) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document all other previously undelivered certificates and other documents reasonably requested to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims be delivered by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating Seller to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals Purchaser at or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingClosing Date in connection with the Acquisition.
(b) At the Closing, Parent and/or Operatorin addition to the other obligations of the Purchaser set forth herein, as applicable, has delivered, or caused the Purchaser shall deliver to be delivered, to Stockholder Representative or the Exchange AgentSeller:
(i) the Adjusted Purchase Price by wire transfer in immediately available funds to an account or accounts designated by the Seller, less the Escrow Amount;
(ii) the Assignment and Assumption Agreement, duly executed by the Purchaser;
(iii) the Transition Services Agreement, duly executed by the Purchaser;
(iv) the Collection Services Agreement, duly executed by the Purchaser;
(v) the Escrow Agreement, duly executed by Parent and Operatorthe Purchaser;
(iivi) the Parent Closing Merger Consideration (in License Agreement, duly executed by the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14Purchaser;
(iiivii) the Seller Releases, duly executed by the DVI Parties;
(viii) the Other Subsidiary Releases, duly executed by the Acquired Subsidiaries; and
(ix) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as an officer of the Closing Date Purchaser as to the matters set forth in Section 6.2 (a) and (iiib) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document all other previously undelivered certificates and other documents reasonably requested to which such Buyer Party is a party; and
(iv) any other items be delivered by the Purchaser to the Seller at or certificates described prior to the Closing Date in Section 5.3 belowconnection with the Acquisition.
(c) Each Party and its Representatives shall take (or cause At the Closing, in addition to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation obligations of the Merger or Purchaser set forth herein, the transactions contemplated by Purchaser shall deliver the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause Escrow Amount to the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingEscrow Agent.
Appears in 1 contract
Deliveries at Closing. At the Closing:
(a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicableSeller hereby delivers, or cause causes to be executed and/or delivered, to Buyer PartiesPurchaser the items described in clauses (i) through (xii) below:
(i) a ▇▇▇▇ of Sale, in the form attached hereto as Annex A (A) a truethe "▇▇▇▇ of Sale"), complete and correct copy of the written consent or other agreement from the Stockholders, representing approval executed by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentSeller;
(ii) an Assignment of Royalty Payments, in the Escrow Agreementform attached hereto as Annex B (the "Assignment of Royalty Payments"), duly executed by Stockholder RepresentativeSeller;
(iii) certificates an Assignment of good standingAssigned Contracts, dated in the form attached hereto as Annex C (the "Assignment of the Closing Date (or, as necessary, the most recent practicable dateAssigned Contracts"), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Personexecuted by Seller;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies a Joint Marketing Agreement, delivered separately herewith (the “Closing Indebtedness”"Joint Marketing Agreement"), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Businessexecuted by Seller;
(v) documentary evidence of the release an Amended and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)Restated Escrow Agreement, in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
Annex D-1 (xiv) documentary evidence the "Telinnovation Escrow Agreement"), executed by Seller, Bank of the termination of the Casino Management Agreement and the St. New York (as successor Escrow Agent for U.S. Trust Company, N.A.), Purchaser, Ingenuous, a California general partnership, Ingenuous Service Corp., a California corporation, Ingenuous Corp., a California corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties▇▇▇▇▇ ▇▇▇▇▇▇▇;
(xvvi) evidencean Amended and Restated Escrow Agreement, in the form attached hereto as Annex D-2 (the "Hardy Escrow Agreement"), executed by Seller, Bank of New York (as successor Escrow Agent for U.S. Trust Company, N.A.), Purchaser and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement▇▇▇▇▇▇▇ ▇▇▇▇▇;
(xvivii) executed affidavits for all Real Property substantially a Software License Agreement, in the form of Exhibit attached hereto as Annex E attached hereto(the "Software License Agreement"), and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably requestexecuted by Seller;
(xviiviii) originals or copies evidence that the parties signing this Agreement and the Collateral Agreements on behalf of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which Seller are in HoldCo’s possession or controlauthorized to do so;
(xviiiix) originals or copies a Subcontractor Agreement, delivered separately herewith (the "Subcontractor Agreement"), executed by Seller;
(x) an assignment of all material certificatesthe Trademarks, permits, licenses and approvals in the form attached hereto as Annex F (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control"Trademark Assignment");
(xixxi) an assignment of any landlord consents required pursuant and all registered copyrights that relate to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders orSoftware Products, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within form attached hereto as Annex G (the meaning Treasury Regulations Section 1.1445-2(b)(2"Copyright Assignment");
(xxiiixii) an assignment of Seller's indemnification rights under (a) the Asset Purchase Agreement, dated December 8, 1999 (the "Telinnovation Agreement"), among Ingenuous (formerly Telinnovation), a certificate of HoldCo’s Chief Financial Officer California general partnership, Ingenuous Service Corp. (formerly Telinnovation Service Corporation), a California corporation, or other executive vested Ingenuous Corp. (formerly Telinnovation Corporation), a California corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and Seller, and (b) the Asset Purchase Agreement, dated December 8, 1999 (the "Hardy Agreement", and together with similar duties) the Telinnovation Agreement, the "Seller Acquisition Agreements"), between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Seller, in the form attached hereto as Annex H (the "APA Assignments"), each of Exhibit F;which assignments shall automatically become effective on the Title Warranty Termination Date.
(xxivxiii) evidenceall electronic representations of source code, in form object code and substance reasonably satisfactory to Buyer Parties, associated documentation that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely relate to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofSoftware Products; and
(xxvxiv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingall other documents, certificates, instruments or writings reasonably requested by Purchaser in connection herewith.
(b) At Purchaser hereby delivers to Seller the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agentitems described in clauses (i) through (x) below:
(i) the Escrow Agreement, duly executed Closing Date Payment by Parent and Operatorwire transfer of immediately available funds to the account designated by Seller;
(ii) the Parent Closing Merger Consideration (an Assumption of Liabilities Agreement, in the case of Parent) and form attached hereto as Annex I (the Operator Closing Merger Consideration (in the case of Operator"Assumption Agreement"), in each case in accordance with Section 1.14executed by Purchaser;
(iii) a certificate of the Secretary of each Buyer PartyJoint Marketing Agreement, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: executed by Purchaser;
(iiv) the Charter Documents of such Buyer PartyTelinnovation Escrow Agreement, executed by Purchaser;
(ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iiiv) the resolutions of Hardy Escrow Agreement, executed by Purchaser;
(vi) the board of directors Employee Documents, executed by Purchaser;
(or equivalent governing bodyvii) of each Buyer Party authorizing the transactions contemplated Software License Agreement, executed by Purchaser;
(viii) the Subcontractor Agreement, executed by Purchaser;
(ix) evidence that the party signing this Agreement and the execution, delivery and performance Collateral Agreements on behalf of this Agreement and each Transaction Document Purchaser is authorized to which such Buyer Party is a partydo so; and
(ivx) any all other items documents, certificates, instruments or certificates described writings reasonably requested by Seller in Section 5.3 belowconnection herewith.
(c) Each Party Transferred Employee concurrently with the execution and its Representatives shall take delivery of this Agreement has delivered to Purchaser:
(or cause to be takeni) all such further actionsQuitclaim and Assignment Agreements in the form attached hereto as Annex J, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested executed by the other Parties in order to effectuate the consummation each of the Merger or Transferred Employees; and
(ii) the transactions contemplated Employee Documents, executed by each Transferred Employee;
(d) The ▇▇▇▇ of Sale, Assignment of Royalty Payments, Assignment of Assigned Contracts, Joint Marketing Agreement, Telinnovation Escrow Agreement, Hardy Escrow Agreement, Employee Documents, Software License Agreement, Subcontractor Agreement, Trademark Assignment, Copyright Assignment and Assumption Agreement shall constitute, collectively, the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing"Collateral Agreements."
Appears in 1 contract
Sources: Asset Purchase Agreement (Ditech Communications Corp)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Parties shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Partiesand deliver the following documents:
(i) Target shall execute and/or deliver to Buyer the following:
(A) a trueThe Omnibus ▇▇▇▇ of Sale and Assignment and other assignments in the forms attached as Exhibits A-1 through A-3, complete and correct copy such other instruments of the written consent or other agreement from the Stockholderssale, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreementtransfer, the Merger conveyance, and the transactions contemplated hereby (collectively, the “Written Consent”); assignment as Buyer and its counsel may reasonably request;
(B) trueAn assumption in the form attached as Exhibit B, complete and correct copies such other instruments of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentassumption as Buyer and its counsel may reasonably request;
(iiC) the Escrow AgreementAll authorizations, duly executed by Stockholder Representative;
(iii) certificates consents, and approvals of good standinggovernments, dated as governmental agencies and third-parties required in connection with Target’s sale and assignment of the Closing Date (or, as necessary, Acquired Assets and the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each consummation of the other states transaction contemplated herein, including those referred to in which any of the Companies are qualified to do business as a foreign Person;
(iv§3(c) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a§4(c);
(ixD) A copy of the Consideration Spreadsheetarticles of incorporation of Target, in as amended, certified on or soon before the manner contemplated in Section 1.14(e)Closing Date by the Secretary of State of the State of Minnesota;
(xE) those consents A copy of the certificate of good standing of Target issued on or approvals identified on Schedule 1.19(a)(x)soon before the Closing Date by the Secretary of State (or comparable officer) of the State of Minnesota and of each jurisdiction in which it is qualified to do business;
(xiF) a A certificate of the Secretary secretary of each CompanyTarget, dated the Closing Date, in form and substance reasonably satisfactory to Buyer PartiesBuyer, certifying as to: (i1) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate articles of Designation or incorporation of Target since the Agreement Among Investors, date specified in subsection (iiiD) that such Charter Documents, above; (2) the Certificate bylaws of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date Target; and (iv3) the resolutions joint unanimous written consent of the board of directors of each Company authorizing Target and the transactions contemplated by Target Stockholders relating to this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a partytransactions contemplated hereby;
(xiiG) evidenceThe employment agreement with Hall in the form of Exhibit C, executed by Hall;
(H) An assignment of the Lease in the form of Exhibit D, executed by Target and the landlord;
(I) An estoppel certificate with respect to the Lease and the Leased Premises in the form of Exhibit E, executed by Target and the landlord;
(J) An unaudited statement showing the Closing Date Cash Balance; and
(K) Any and all other certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby, in form and substance reasonably satisfactory to Buyer.
(ii) Buyer Parties, that each Affiliate Contract has been terminated, will execute and/or deliver to Target the following:
(A) Evidence of the approval by the board of directors of Buyer of this Agreement and no Company shall have any remaining obligations thereunderthe transactions contemplated hereby;
(xiiiB) resignations (which shall include a release All authorizations, consents, and approvals of all claims by the applicable director or officer against each Company) of the directors governments and officers of each of the Companies, in substantially the form attached hereto as Exhibit Dgovernmental agencies required for Buyer to perform its obligations hereunder;
(xivC) documentary evidence of Any and all certificates, instruments, and other documents required to effect the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidencetransactions contemplated hereby, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville AgreementSellers’ Representative;
(xviD) executed affidavits for all Real Property substantially The employment agreement with Hall in the form of Exhibit E attached heretoC, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;executed by Hall; and
(xviiE) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms An assignment of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) Lease in the form of Exhibit F;
(xxiv) evidenceD, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowBuyer.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Professional Diversity Network, Inc.)
Deliveries at Closing. At Closing the parties shall deliver to each other the documents and items indicated below:
(a) At or prior to the Closing, HoldCo Seller shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesBuyer:
(i1) An appropriate "Owner's Affidavit" or other acceptable evidence attesting to the absence of liens, lien rights, rights of parties in possession (Aother than Tenant) a trueand other encumbrances other than the Permitted Exceptions naming both Buyer and Title Company as benefitted parties, complete so as to enable Title Company to delete the "standard" exceptions for such matters from Buyer's owner's policy of title insurance and correct copy otherwise insure any "gap" period occurring between the Closing and the recordation of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby closing documents;
(collectively, the “Written Consent”); and (B2) true, complete and correct copies of the A duly executed Letters of Transmittal Warranty Deed with respect to the shares of capital stock of HoldCo held Premises subject to no exceptions other than the Permitted Exceptions, in the form approved by Buyer and the Stockholders that executed the Written ConsentTitle Company;
(ii3) the Escrow AgreementAn Assignment of Licenses, duly executed by Stockholder Representative;
(iii) certificates of good standingPermits, dated as of the Closing Date (orPlans, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization Contracts and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties Warranties with respect to the Premises in the form approved by Buyer, together with all Indebtedness of the Companies (documents assigned thereby, assigning and/or reserving unto the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); providedTenant, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents right to enforce the same during the term of such Companythe Lease, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments specific operating licenses which Buyer has approved in its reasonable discretion as necessary for Tenant to such Charter Documents, retain for the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation proper licensing and the Agreement Among Investors, are in full force and effect as operation of the Closing Date and (iv) Facility, as such term is defined in the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a partyLease;
(xii4) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunderThree (3) signed counterparts of the closing statement;
(xiii5) resignations An opinion from Seller's and Tenant's counsel on matters and in the form approved by Buyer and relating to due organization and good standing of, and the due authorization, execution and delivery of the closing documents delivered by, Seller, Tenant and such other related parties involved in the transaction as Buyer may reasonably require, and the enforceability of the Lease against Tenant and the Guaranty against Guarantor;
(which shall include 6) An appropriate FIRPTA Affidavit or Certificate evidencing that Seller is not a release of all claims by the applicable director foreign person or officer against each Companyentity under Section 1445(f)(3) of the directors and officers of each of the CompaniesInternal Revenue Code, in substantially the form attached hereto as Exhibit Damended;
(xiv7) documentary evidence All certificates of insurance, insuring Buyer as the owner of the termination of Premises, which are required by the Casino Management Agreement and Lease to be furnished by the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory Tenant to Buyer Partiesthe landlord;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement8) The Guaranty;
(xvi9) Two (2) duly executed affidavits for all Real Property substantially counterparts of the Earn Out Agreement to be entered into between Seller and Buyer in the form of Exhibit E attached hereto, approved by Seller and such other affidavits Buyer and relating to potential Earn Out amounts which may be earned in the New Title Policy as the Title Insurer may reasonably request;
future by Seller (xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control"Earn Out Agreement");
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CNL Retirement Properties Inc)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(i) (A) a trueSeller will deliver to Buyer the various certificates, complete instruments, and correct copy of the written consent or other agreement from the Stockholdersdocuments referred to in 0 below, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) Buyer will deliver to Seller the Escrow Agreementvarious certificates, duly executed by Stockholder Representative;
(iii) certificates of good standinginstruments, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies and documents referred to in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors0 below, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as Seller will deliver to Buyer stock certificates representing all of the Closing Date and Target Shares, endorsed in blank or accompanied by duly executed assignment documents, (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement Seller or Seller's Subsidiaries shall execute, acknowledge (if appropriate), and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory deliver to Buyer Parties(A) assignments in reasonable form (including transfer documents for Marketing Authorizations, that each Affiliate Contract has been terminatedreal property and all registered trademarks, copyrights, patents and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include patent applications included in the Acquired IP Assets), including a release B▇▇▇ of all claims by the applicable director or officer against each Company) of the directors Sale and officers of each of the Companies, Assignment in substantially the form attached hereto as Exhibit D;
C, (xivB) documentary evidence all records and documents relating to any Target Companies IP and Acquired IP Assets, including all trademark and patent prosecution files, trademark registration certificates, litigation files and related opinions of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreementcounsel, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached heretolicense agreements, and correspondence relating thereto and (C) such other affidavits relating to the New Title Policy instruments of sale, transfer, conveyance, and assignment as the Title Insurer Buyer and its counsel may reasonably request;
; (xviiv) originals or copies Seller shall deliver to Buyer the written resignation of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms member of the Leases;
(xx) the Customer Database; providedBoard of Directors, however, that physical delivery Board of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger Managers or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operatorequivalent governing body, as applicable, has deliveredof each of the Target Companies and their Subsidiaries; (vi) Buyer will execute, or caused acknowledge (if appropriate), and deliver to be delivered, to Stockholder Representative or the Exchange Agent:
Seller (iA) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (an Instrument of Assumption in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying attached hereto as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date Exhibit D and (iiiB) such other instruments of assumption as Seller and its counsel may reasonably request; and (vii) Buyer will deliver to Seller the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described consideration specified in Section 5.3 below2(b) above.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliverthe Company, Bancorp or the Shareholders, as applicableappropriate, shall deliver or cause to be executed and/or delivered, delivered to Buyer PartiesParent:
(ia) (A) a truecertificates representing all the Shares, complete free and correct copy clear of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentall Liens;
(iib) the Escrow Registration Rights Agreement, duly executed by Stockholder Representativethe Shareholders who are a party hereto;
(iiic) certificates of good standingfrom D▇▇ ▇▇▇▇▇▇ LLP, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related counsel to the operation Company, an opinion of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Companysuch counsel, dated the Closing Date, in form and substance reasonably satisfactory acceptable to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminatedParent, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. from S▇▇▇▇▇▇ W▇▇▇▇▇ M▇▇▇▇▇ W▇▇▇▇▇▇▇ A▇▇▇▇▇▇▇ Agreement& S▇▇▇▇▇▇▇▇, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidenceP.A., in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating counsel to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies Bancorp, an opinion of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Partycounsel, dated the Closing Date, in form and substance reasonably satisfactory acceptable to HoldCo, certifying as to: Parent;
(id) the Charter Documents written resignation of such Buyer Partyeach member of the Board of Directors and to the extent requested by Parent, each officer of the Company and its Subsidiaries identified by Parent;
(iie) that there have been no amendments all consents and approvals from Governmental Authorities;
(f) a certificate of good standing of the Company and its Subsidiaries, dated within five (5) Business Days of the Closing Date, from the New Jersey Secretary of State;
(g) all share transfer books, minute books and other corporate records of the Company and its subsidiaries;
(h) a copy, certified by the Secretary of the Company to such Charter Documents be true, complete and that such Charter Documents are in full force and effect correct as of the Closing Date Date, of the articles or certificate of incorporation, bylaws and resolutions of the shareholders and board of directors of the Company, authorizing and approving the transactions contemplated hereby and the incumbency of certain officers;
(iiii) a copy, certified by the Secretary of Bancorp to be true, complete and correct as of the Closing Date, of the resolutions of the board of directors (or equivalent governing body) of each Buyer Party Bancorp, authorizing and approving the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; andhereby;
(ivj) any the certificate required to be delivered pursuant to Section 7.1;
(k) such other items customary documents, instruments or certificates described in Section 5.3 below.
(c) Each Party and its Representatives as shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by Parent and as shall be consistent with the other Parties in order to effectuate the consummation terms of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingthis Agreement.
Appears in 1 contract
Deliveries at Closing. On the Closing Date: ---------------------
(a) At or prior to the Closing, HoldCo Seller shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesPurchaser the following:
(i) (A) a true, complete and correct copy an Assignment of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow AgreementMembership Interest, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the CompaniesSeller, in substantially the form attached hereto as Exhibit D;A (the "Membership --------- ---------- Assignment"); ----------
(xivii) documentary evidence of the termination of the Casino Management Agreement an amended and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreementrestated PSMA/PSMP License, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator)Seller, in each case in accordance with Section 1.14;substantially the form attached hereto as Exhibit B (the ---------- "Amended and Restated PSMA/PSMP License"); --------------------------------------
(iii) a certificate of the Secretary of each Buyer Partywritten resignations, dated the Closing Date, duly executed by each Representative appointed to the Management Committee and, if any, the Scientific Advisory Board, by Seller, in substantially the forms attached as Exhibit C (the "Resignations"); --------- ------------
(iv) a certificate, dated the Closing Date, notifying persons to whom certificates contemplated by Section 4.1(h)(i) or Section 4.1(h)(iii) of the PSMA Operating Agreement were previously delivered of the resignation of the Representatives and Managing Representative appointed by Seller, duly executed by the Managing Representative appointed by Seller, in substantially the form attached hereto as Exhibit D (the ---------- "Managing Representative Certificate"); -----------------------------------
(v) a certificate, dated the Closing Date, duly executed by each Representative appointed by Seller certifying that the Management Committee has (a) not requested any additional information, representations or opinions pursuant to Section 6.2 of the PSMA Operating Agreement and substance reasonably satisfactory that the assignment of the Membership Interest to HoldCoPurchaser is effective and (b) authorized and approved the execution, delivery and performance of, and the consummation of the transactions contemplated by, the Amended and Restated PSMA/PSMP License Agreement and any other documents or instruments contemplated thereby, in substantially the form attached hereto as Exhibit ------- E (the "Management Committee Waiver and Approval Certificate"); - ----------------------------------------------------
(vi) a certificate, dated the Closing Date, duly executed by the Secretary or Assistant Secretary of Seller, on behalf of Seller, certifying as to: to (ia) the Charter Documents attached copy of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board Board of directors (or equivalent governing body) Directors of each Buyer Party Seller authorizing and approving the execution, delivery and performance of, and the consummation of the transactions contemplated by this Agreement and the executionCollateral Agreements and any other documents or instruments contemplated hereby or thereby, delivery and performance stating that the resolutions thereby certified have not been amended, modified, revoked or rescinded, and (b) the incumbency, authority and specimen signature of each officer of Seller executing this Agreement Agreement, the Collateral Agreements or any other document or instrument contemplated hereby or thereby;
(vii) a certificate to the effect that, as of the Closing Date, Seller is not a foreign person within the meaning of section 1445 of the Code, and each Transaction Document the Treasury Regulations thereunder, such certificate to which such Buyer Party is a partybe substantially in the form described in Treasury Regulations section 1.1445-2(b)(2)(iv)(B); and
(ivviii) any such other items or duly executed documents and certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause as may be required to be taken) all such further actions, do (delivered by Seller pursuant to the terms of this Agreement or cause to be done) all such further things and execute (the Collateral Agreements or cause to be executed) all such further documents as may be reasonably requested by Purchaser prior to the Closing Date.
(b) Purchaser shall deliver, or cause to be delivered, to Seller the following:
(i) the Purchase Price by wire transfer of immediately available federal funds to an account designated by Seller (which designation shall be made by Seller not less than two Business Days before the Closing Date);
(ii) the Membership Assignment, duly executed by Purchaser;
(iii) Amended and Restated PSMA/PSMP License, duly executed by the Company and Purchaser;
(iv) the Managing Representatives Certificate, dated the Closing Date, duly executed by the Managing Representative appointed by Purchaser;
(v) the Management Committee Waiver and Approval Certificate, dated the Closing Date, duly executed by each Representative appointed by Purchaser; and
(vi) a certificate, dated the Closing Date, duly executed by the Secretary, Assistant Secretary or other Parties in order officer of Purchaser, on behalf of Purchaser, certifying as to effectuate (a) the attached copy of the resolutions of the Board of Directors of Purchaser authorizing and approving the execution, delivery and performance of, and the consummation of the Merger or the transactions contemplated by by, this Agreement and the Transaction Documents. If a Party shall reasonably determine Collateral Agreements and any other documents or instruments contemplated hereby, and stating that the resolutions thereby certified have not been amended, modified, revoked or rescinded, and (b) the incumbency, authority and specimen signature of each officer of Seller executing this Agreement, the Collateral Agreements or any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at instrument contemplated hereby or following the Closingthereby.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Cytogen Corp)
Deliveries at Closing. At the Closing:
(a) At or prior to Invest Shareholders shall deliver the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Partiesfollowing documents and deliverables:
(i) (A) to BRKR, a true, complete and correct copy share register of the written consent or other agreement from the Stockholders, representing approval Invest duly issued by the board of directors of Invest showing that Invest Shareholders are the only holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentInvest Shares;
(ii) to BRKR, the Escrow AgreementExchange Shares Transfer Deed, duly executed signed by Stockholder Representativeeach of Invest Shareholders;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessaryto Invest, the most recent practicable date)Cancellation Shares Transfer Deed, for the Companies in their respective jurisdiction(s) of organization and from duly signed by each of the other states in which any of the Companies are qualified to do business as a foreign PersonInvest Shareholders;
(iv) payoff letters or other evidence of discharge in form to BRKR and substance reasonably satisfactory to Buyer Parties with respect to Invest, a circular resolution signed by all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions members of the board of directors of each Company authorizing Invest evidencing that the transactions contemplated by this Agreement board of directors of Invest resolved that BRKR and Invest, contingent upon the Closing, shall be registered in Invest’s share register as shareholders in respect of the Exchange Shares and the executionCancellation Shares, delivery and performance of this Agreement and each Transaction Document to which such Company is a partyrespectively;
(xiiv) evidenceto BRKR, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereundera receipt executed by Invest Shareholders for the Share Exchange Price;
(xiiivi) resignations (which shall include a release of all claims by the applicable director or officer against each Company) to BRKR, an excerpt of the directors and officers entry of each of Invest in the CompaniesCommercial Register, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇which is not older than 5 calendar days, evidencing that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Agreement, each in form has resigned from the board of directors of Invest and substance reasonably satisfactory that ▇▇▇▇ ▇▇▇▇▇▇ is registered as president of the board of directors of Invest and a statement of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ that she has been fully compensated for her services rendered to Buyer Parties;
(xv) evidence, in form Invest and substance reasonably satisfactory to Buyer Parties, that Margaritaville she has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached heretono, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies validly waives all, claims of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the whatsoever nature against Invest except for claims under this Swiss Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereofAgreement; and
(xxvvii) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingBRKR, all other documents and instruments required to be delivered by Invest Shareholders pursuant to this Swiss Merger Agreement or any Ancillary Agreement to which Invest Shareholder is or is required to be a party, including those set forth in Article VIII, and any other document or instrument reasonably requested by BRKR.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused Invest shall deliver to BRKR all documents and instruments required to be delivereddelivered by Invest pursuant to this Swiss Merger Agreement or any Ancillary Agreement to which Invest is or is required to be a party, including those set forth in Article VIII, and any other document or instrument reasonably requested by BRKR.
(c) BRKR shall deliver the following documents and deliverables to Stockholder Representative or the Exchange Agenteach Invest Shareholder:
(i) stock certificates evidencing shares of BRKR Stock representing all of such Invest Shareholder’s portion of the Escrow AgreementShare Exchange Price, duly endorsed in blank, or accompanied by stock powers duly executed by Parent in blank and Operator;with all required stock transfer tax stamps affixed; and
(ii) the Parent Closing Merger Consideration (in the case of Parent) all other documents and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause instruments required to be taken) all such further actions, do (or cause delivered by BRKR pursuant to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the ClosingArticle VIII.
Appears in 1 contract
Deliveries at Closing. (a) At Subject to satisfaction (or prior to waiver by Seller) of the Closingconditions specified in Article X hereof, HoldCo Seller shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, deliver to Buyer Partiesthe --------- items described in clauses (i) through (xii) below:
(i) The General Warranty Deed, executed by Seller, substantially in the form attached hereto as Exhibit E, with regard to the Real --------- Property.
(Aii) the ▇▇▇▇ of Sale, executed by Seller, substantially in the form attached hereto as Exhibit F, with regard to the Purchased Assets --------- that are Tangible Assets, Inventory or Records:
(iii) the Assignment and Assumption Agreement, executed by Seller, substantially in the form attached hereto as Exhibit G, with regard to the Purchased Assets that are Equipment Leases, Real Property Leases, Contracts, Accounts Receivable, Intellectual Property (other than patents) and the Assumed Liabilities;
(iv) the Assignment of Patents executed by Seller, substantially in the form attached hereto as Exhibit H with regard to the --------- Intellectual Property that are patents;
(v) The Escrow Agreement, executed by Seller, substantially in the form attached hereto as Exhibit C; ---------
(vi) The Cross-License, referred to in Section 8.06, executed ------------ by Seller, substantially in the form attached hereto as Exhibit J; ---------
(vii) evidence that the persons signing this Agreement and any of the Collateral Agreements delivered at the Closing on behalf of Seller are authorized to do so;
(viii) a true, complete and correct copy certificate signed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as an officer of the Seller, stating that to his knowledge the conditions set forth in Article IX ---------- have been satisfied;
(ix) an opinion of counsel to Seller addressing the matters set forth in Exhibit K in form and substance reasonably satisfactory to Buyer and --------- its counsel;
(x) an ALTA (Form B 1970) Title Insurance Policy written consent or other agreement from by Chicago Title Insurance Company (the Stockholders"Title Company") in the amount of $1,720,000, representing approval paid for by Seller insuring in Buyer marketable title to the holders of at least 98% Real Property;
(xi) an ALTA/ACSM Survey of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger Real Property certified to Buyer and the transactions contemplated hereby Title Company and paid for by Seller; and
(collectivelyxii) an inventory list, the “Written Consent”); and (B) true, complete and correct copies accurate as of the executed Letters second day immediately preceding the Closing Date, of Transmittal with respect all Inventory, signed by Seller and Buyer.
(b) Subject to satisfaction (or waiver by Buyer) of the shares conditions specified in Article IX hereof at Closing, Buyer shall deliver to Seller the ---------- items described in clauses (i) through (vi) below:
(i) the cash payment of capital stock of HoldCo held by the Stockholders that executed the Written ConsentMinimum Cash Closing Payment;
(ii) the Escrow Agreement, duly executed by Stockholder RepresentativeBuyer and the Escrow Agent, substantially in the form attached hereto as Exhibit C, and evidence that --------- the Escrowed Closing Price has been paid to the Escrow Agent to hold pursuant to the Escrow Agreement;
(iii) certificates of good standingthe Cross-License, dated referred to in Section 8.06, ------------ executed by Buyer, substantially in the form attached hereto as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;Exhibit J; ---------
(iv) payoff letters or other evidence that the persons signing this Agreement and any of discharge the Collateral Agreements delivered at the Closing on behalf of Buyer, are authorized to do so;
(v) a certificate signed by the President of Buyer, stating that to his knowledge the conditions set forth in Article X have been satisfied; --------- and
(vi) an opinion of counsel to Buyer addressing the matters set forth in Exhibit L in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release Seller and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below--------- its counsel.
(c) Each Party The agreements substantially in the forms of Exhibits C, G, H and its Representatives shall take (or cause to be taken) all such further actions-------------------- J, do (or cause to be done) all such further things delivered at the Closing, along with the Guaranty of Payment by NAC, executed - contemporaneously with this Agreement, and execute (or cause to be executed) all such further documents attached hereto as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its RepresentativesExhibit I, shall cause --------- constitute, collectively, the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing"Collateral Agreements." -62-
Appears in 1 contract
Sources: Sale and Purchase Agreement (Stevens International Inc)
Deliveries at Closing. (a) Deliveries of the Sellers’ Representative, the Company, the Sellers, and the Optionholders. At or prior to the Closing, HoldCo shall execute the Sellers’ Representative, the Company, each Seller, and/or delivereach Optionholder, as applicable, or cause shall deliver to be executed and/or delivered, to the Buyer Partiesthe following items:
(i) a counterpart to the Escrow Agreement duly executed by Sellers’ Representative;
(Aii) a true, complete and correct copy certificate of a secretary or assistant secretary or other authorized officer of the written consent Company and each of its Subsidiaries certifying to the Company’s and its Subsidiaries’ organizational documents and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other agreement from the Stockholders, representing approval by the holders of at least 98% governing bodies of the outstanding shares of capital stock of HoldCo of Company approving this Agreement, the Merger Ancillary Agreements to which the Company is a party, and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representativethereby;
(iii) certificates of good standing, dated as the consents set forth in Section 7(a)(iii) of the Closing Date (orDisclosure Letter, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge case in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessBuyer;
(viv) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), Payoff Letters in form and substance reasonably satisfactory to Buyer PartiesBuyer;
(v) if requested by Buyer, resignations from each of the directors, officers and managers of each of the Company and each of its Subsidiaries;
(vi) at least one Business Day prior to the Closingnon-competition, the Closing Transaction Expenses Certificatenon-solicitation agreements duly executed by each of Dennis L▇▇ ▇▇▇ ▇▇▇othy ▇▇▇▇▇ ▇▇ ▇▇▇ form of Exhibit B hereof;
(vii) at least one Business Day prior to Option Cancellation Agreements for each Optionholder, duly executed by such Optionholder and the Closing, the Closing Indebtedness CertificateCompany;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer PartiesBuyer, that each Affiliate Contract has been terminatedDennis L▇▇ ▇▇▇ ▇▇▇igned from any and all positions held with Torque Fitness, and no Company shall have any remaining obligations thereunderLLC;
(xiiiix) resignations (which shall include a release of all claims employee non-solicitation agreements, in form and substance reasonably satisfactory to Buyer, duly executed by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit Gerald D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ve Du▇▇▇▇;
(▇) ▇mployment Agreements, in the form attached hereto as Exhibit C, duly executed by each of Dennis L▇▇ ▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
▇▇▇othy ▇▇▇▇▇ (xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control▇▇▇ “▇mployment Agreements”);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxvxi) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior a letter agreement with respect to the Closing.
(b) At the Closinglitigation entitled Icon Health & Fitness, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.Inc.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo the Company, the Members, or the Sellers’ Representative shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesBuyer:
(i) (A) a true, complete and correct copy evidence of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% transfer of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect Purchased Units from each Direct Member to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentBuyer, in a form reasonably acceptable to Buyer, vesting all right, title and interest in such Purchased Units in Buyer;
(ii) the Transaction Documents executed by the Company and the Members, as applicable, and all other agreements, documents, instruments or certificates required to be delivered by the Company and the Members at or prior to the Closing pursuant to Article VI;
(iii) the Escrow Agreement, duly executed by Stockholder the Sellers’ Representative;
(iv) the Payments Administration Agreement, duly executed by the Sellers’ Representative;
(v) the Members’ Closing Certificate;
(vi) an IRS Form W-9 (or other proof of exemption from withholding under Section 1445 and 1446(f) of the Code in connection with the Transactions reasonably satisfactory to Buyer) validly executed by each Member;
(vii) the deliverables of the Company and Members set forth in Article VI;
(b) At or prior to the Closing, Buyer shall deliver or cause to be delivered the following:
(i) by wire transfer of immediately available funds to the account of the Payment Agent cash in an aggregate amount equal to (v) the Purchase Price, less (w) the Tax Reserve Fund, less (x) the Escrow Amount, less (y) Member Transaction Expenses, less (z) the Representative Expense Fund (the “Closing Payment”), which Closing Payment shall be paid by the Payment Agent to the Indirect Members, on behalf of the Direct Members, in accordance with each Indirect Member’s Closing Pro Rata Portion, as set forth in the Initial Consideration Spreadsheet;
(ii) by wire transfer of immediately available funds to the account of the Payment Agent cash in an amount equal to the Representative Expense Fund, which amount shall be paid by the Payment Agent to the Sellers’ Representative, by wire transfer of immediately available funds, as set forth in the Initial Consideration Spreadsheet;
(iii) certificates by wire transfer of good standing, dated as immediately available funds to the account of the Closing Date (orPayment Agent cash in an amount equal to the Tax Reserve Fund, which amount shall be paid by the Payment Agent to Midco, by wire transfer of immediately available funds, as necessary, set forth in the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonInitial Consideration Spreadsheet;
(iv) payoff letters or other evidence by wire transfer of discharge in form and substance reasonably satisfactory immediately available funds to Buyer Parties with respect to all Indebtedness the account of the Companies (Payment Agent cash in an amount equal to the “Closing Indebtedness”)Member Transaction Expenses set forth in the Initial Consideration Spreadsheet, which such Closing Indebtedness amounts shall be paid by the Payment Agent (i) in the case of compensatory payments to employees of the Company subject to Tax withholding, by wire transfer of immediately available funds to the Company for further distribution of such amounts by the Company through its payroll procedures after applicable Tax withholdings to each of the payees set forth on Schedule 1.19(a)(iv); providedin such Initial Consideration Spreadsheet and (ii) in all other cases by wire transfer of immediately available funds, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities each of the Companies specifically related to the operation of the Casino payees set forth in the Ordinary Course of Businesssuch Initial Consideration Spreadsheet;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting Buyer Closing Certificate to the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer PartiesSellers’ Representative;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent ▇▇▇▇▇ and Operatorthe Escrow Agent, to the Sellers’ Representative;
(iivii) the Parent Closing Merger Consideration (in Payments Administration Agreement, duly executed by ▇▇▇▇▇, to the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partySellers’ Representative; and
(ivviii) any to the Sellers’ Representative, the Transaction Documents executed by ▇▇▇▇▇, as applicable, including all other items agreements, documents, instruments or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause required to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested delivered by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, Buyer at or following prior to the ClosingClosing pursuant to Article VII.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (CarGurus, Inc.)
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliver, Closing and as applicable, subject to the simultaneous performance by Buyer of its obligations under Section 2.11(b), Seller and the Company shall deliver or cause to be executed and/or delivered, delivered to Buyer Partiesthe following:
(i) (A) a true, complete and correct copy duly executed certificate from an authorized Person of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger Seller and the transactions contemplated hereby (collectively, Company in the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect form attached to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standingthis Agreement as Exhibit A, dated as of the Closing Date Date, certifying that the conditions set forth in Section 12.2(a) and Section 12.2(b) have been satisfied;
(or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(sii) of organization and from each an assignment of the other states Target Interests in which any the form of Exhibit B duly executed by ▇▇▇▇▇▇;
(iii) an acknowledgment of the Companies are qualified Closing Statement (if agreed to do business as a foreign Personby the Parties prior to the Closing);
(iv) a joint written instruction duly executed by ▇▇▇▇▇▇ and delivered to the Escrow Agent, instructing the Escrow Agent to distribute the full amount of the Deposit to the account(s) designated in writing by Seller prior to Closing;
(v) a valid, properly completed, and duly executed IRS form W-9 of Seller (or, if Seller is disregarded as an entity separate from its owner for U.S. federal Income Tax purposes, its regarded owner);
(vi) evidence of the termination of any Affiliate Arrangements in accordance with Section 9.10(a);
(vii) written resignations of the directors, managers and officers of the Company in accordance with Section 9.10(b);
(viii) customary payoff letters addressed to the applicable payees set forth therein providing that all Credit Document Indebtedness shall be paid off in full immediately prior to or other evidence upon Closing by wire transfer of discharge immediately available funds (the “Payoff Letters”), in each case in form and substance reasonably satisfactory to Buyer Parties with respect to Buyer;
(A) releases of all Indebtedness Liens (other than Permitted Encumbrances) that burden the Oil & Gas Assets, the Target Interests or any other asset, property or interest of the Companies Company or any its Affiliates (including Seller Parent) and any Hedge Contract, including the Assumed ▇▇▇▇▇▇, (B) terminations and releases of all guarantees provided by the Company or any of its Affiliates (including Seller Parent) in respect of the Credit Document Indebtedness, (C) authorizations to file UCC-3 termination statements, mortgage releases and other applicable terminations or releases, in each case, in all applicable jurisdictions to evidence the release of all Liens (other than Permitted Encumbrances) that burden the Oil & Gas Assets, the Target Interests or any other asset, property or interest of the Company or its Affiliates (including Seller Parent) and any Hedge Contract, including the Assumed ▇▇▇▇▇▇ and (D) all instruments and agreements, in each case, reasonably required to effect and file of record the release of all Liens (other than Permitted Encumbrances) that burden the Oil & Gas Assets, the Target Interests or any other asset, property or interest of the Company or any of its Affiliates (including Seller Parent) (collectively, the “Closing IndebtednessReleases of Lien”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)each case, in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e)Buyer;
(x) those consents or approvals identified on Schedule 1.19(a)(x)the Registration Rights Agreement, duly executed by Seller;
(xi) a certificate of the Secretary of each CompanyStock Escrow Agreement, dated the Closing Dateduly executed by Seller, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a partyif applicable;
(xii) evidencethe Transition Services Agreement, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;duly executed by Seller; and
(xiii) resignations (which shall include a release of all claims any Related Agreements that are required by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not this Agreement to be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger and/or delivered by Seller or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending Company at least 30 days prior to the Closing.
(b) At the ClosingClosing and as applicable, subject to the simultaneous performance by Seller and the Company of their obligations under Section 2.11(a), Buyer and Parent and/or Operatorshall deliver or cause to be delivered to Seller, the Company and, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange AgentTransfer Agent the following:
(i) a duly executed certificate from an authorized Person of Buyer and Parent in the form attached to this Agreement as Exhibit C, dated as of the Closing Date, certifying that the conditions set forth in Section 12.3(a) and Section 12.3(b) have been satisfied;
(ii) an assignment of the Target Interests in the form of Exhibit B duly executed by ▇▇▇▇▇;
(iii) by wire transfer of immediately available funds to the account designated in writing by Seller in the Closing Statement, the Closing Payment;
(iv) by wire transfer of immediately available funds to the Cash Defect Escrow Account, the Title Escrow Amount and/or Environmental Escrow Amount, if applicable;
(v) by wire transfer of immediately available funds to the Cash Indemnity Holdback Account, the Indemnity Holdback Cash;
(vi) the number of shares of Parent Common Stock equal to (A) the Closing Stock Amount, to the Persons and in the amounts designated in the Closing Statement, (B) (if applicable) the Defect Escrow Shares, to the Transfer Agent, to be held in the Stock Defect Escrow Account, and released in accordance with the terms of this Agreement and the Stock Escrow Agreement and (C) the Indemnity Holdback Shares, to the Transfer Agent, to be held in the Stock Indemnity Holdback Account, and released in accordance with the terms of this Agreement and the Stock Escrow Agreement;
(vii) evidence reasonably satisfactory to Seller that ▇▇▇▇▇ has delivered the number of shares of Parent Common Stock equal to the Indemnity Holdback Shares to the Transfer Agent pursuant to Section 2.11(b)(vi)(C) and (if applicable) equal to the Defect Escrow Shares to the Transfer Agent pursuant to Section 2.11(b)(vi)(B);
(viii) a joint written instruction duly executed by ▇▇▇▇▇ and delivered to the Escrow Agent, instructing the Escrow Agent to distribute the full amount of the Deposit to the account(s) designated in writing by Seller prior to Closing;
(ix) evidence that ▇▇▇▇▇ has replaced the Credit Support contemplated by Section 9.9;
(x) evidence reasonably satisfactory to Seller that ▇▇▇▇▇ has delivered, by wire transfer of immediately available funds to each payee identified in the Payoff Letters, the amount required to be paid to pay off the Credit Document Indebtedness in full as of the Closing (the “Payoff Amount”);
(xi) the Novation Agreements, duly executed by the parties thereto, and any other evidence reasonably satisfactory to Seller that Buyer has satisfied is obligations with respect to the Assumed ▇▇▇▇▇▇ pursuant to Section 9.15;
(xii) an acknowledgment of the Closing Statement (if agreed to by the Parties prior to the Closing);
(xiii) the Registration Rights Agreement, duly executed by ▇▇▇▇▇▇;
(xiv) the Stock Escrow Agreement, duly executed by Parent and Operatorthe Buyer Parties;
(iixv) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator)Transition Services Agreement, in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated duly executed by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party▇▇▇▇▇; and
(ivxvi) any Related Agreements that are required by the other items or certificates described in Section 5.3 belowterms of this Agreement to be executed and/or delivered by ▇▇▇▇▇ at the Closing.
(c) Each Party In addition to the obligations set forth under Section 2.11(a), no later than five (5) Business Days following the Closing Date, Seller shall deliver to the Company possession of the books and its Representatives shall take (or cause to be taken) records not currently held by the Company and in control of Seller; provided that for all such further actions, do (or cause to be done) all such further things books and execute (or cause to be executed) all such further documents records that exist in electronic format as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or Closing Date, Seller shall make available to Buyer electronic versions of such books and records, at Buyer’s sole cost and expense, on the transactions contemplated by the Transaction Documents. If a Party Closing Date; provided, however, that Seller shall reasonably determine that any further conveyancenot be required to conduct processing, assignment or other document conversion, compiling or any similar work with respect to the furnishing of such further action is necessary, each other Party books and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingrecords.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Callon Petroleum Co)
Deliveries at Closing. At the Closing:
(a) At or prior EXSI shall deliver to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause its transfer agent irrevocable instructions to be executed and/or delivered, to Buyer Parties:
(i) (A) a true, complete issue and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to deliver the shares of capital stock EXSI Common Stock in accordance with the provisions of HoldCo held by Article I of this Agreement together with such legal opinions or other documentation as EXSI’s transfer agent may require in order to effect the Stockholders that executed the Written Consentissuances contemplated hereby;
(iib) the Escrow Agreement, duly executed by Stockholder RepresentativeThe current officers and directors of EXSI shall deliver their written resignations as such;
(iiic) certificates EXSI shall take such action and cause to take effect such amendments of good standingits bylaws and such resolutions of its Board of Directors as may be necessary or appropriate to elect the designees of Taskport as officers and members of the Board of Directors of EXSI;
(d) EXSI shall deliver to Taskport a Certificate of its President and Chief Executive Officer pursuant to Section 8.02(f) hereof;
(e) EXSI shall deliver to Taskport a Certificate of its Secretary pursuant to Section 8.02(g) hereof;
(f) EXSI shall deliver to Taskport an opinion of counsel, dated as of the Closing Date (orDate, as necessaryin a form reasonably acceptable to Taskport, with respect to the most recent practicable date), for the Companies matters set forth in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign PersonExhibit A attached hereto;
(ivg) payoff letters or other evidence of discharge in form and substance reasonably satisfactory Taskport shall deliver to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) EXSI a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation its President and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required Chief Executive Officer pursuant to the terms of the Leases;
(xxSection 8.01(f) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxvh) the fixed asset ledger Taskport shall deliver to EXSI a Certificate of the Companies as of the last day of the most recent calendar month ending at least 30 days prior its Secretary pursuant to the ClosingSection 8.01(g) hereof.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Deliveries at Closing. On the Closing Date, ---------------------
(a1) At or prior the Sellers will assign and transfer to the ClosingPurchaser good and valid title in and to the Shares, HoldCo free and clear of all liens, by delivering to the Purchaser stock certificates representing the Shares, duly endorsed for transfer or accompanied by duly executed stock powers endorsed in blank with requisite stock transfer tax stamps, if any, attached ;
(2) the Sellers shall execute and/or deliver, as applicable, or cause deliver to be executed and/or delivered, to Buyer Partiesthe Purchaser:
(i) (A) a true, complete duly completed and correct copy signed transfers in favor of the written consent Purchaser or other agreement from the Stockholders, representing approval by the holders of at least 98% as it may direct in respect of the outstanding shares of capital stock of HoldCo of this Agreement, Shares together with the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentrelative share certificates;
(ii) the Escrow Agreement, Sellers' Employment Agreements duly executed by Stockholder Representativeexecuted;
(iii) certificates of good standingsave to the extent otherwise specified by the Purchaser, dated as the resignations of the Closing Date (or, as necessary, directors and the most recent practicable date), for the Companies in secretary from their respective jurisdiction(s) of organization and offices in the Company, with a written acknowledgment from each of the other states in which any of the Companies are qualified to do business them executed as a foreign PersonDeed that he has no claim against the Company in respect of fees or other remuneration, breach of contract, compensation for loss of office, redundancy or unfair dismissal or on any other grounds whatsoever;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness the resignation of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities existing auditors of the Company confirming that they have no outstanding claims of any kind and containing a statement under Companies specifically related to the operation of the Casino Acts Section 394(1) that there are no such circumstances as are mentioned in the Ordinary Course of Businessthat section;
(v) documentary evidence the statutory and other books of the release Company duly written up-to-date and discharge their certificates of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments incorporation and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Partiescommon seals;
(vi) at least one Business Day prior to all check and paying in books of the Closing, the Closing Transaction Expenses CertificateCompany;
(vii) a letter from the bankers of the Company confirming the amounts of the balances on each of its accounts as at least one Business Day prior to the Closing, close of business on the day before the Closing Indebtedness CertificateDate;
(viii) a certificate of title relating to the Closing Certificate, Company's assets and properties provided by the Sellers' attorneys in a form approved by the manner contemplated in Section 1.17(a)Purchaser's attorneys;
(ix) the Consideration Spreadsheet, in title deeds relating to each of the manner contemplated in Section 1.14(e)properties;
(x) those consents or approvals identified on Schedule 1.19(a)(x)the appropriate forms to amend the mandates given by the Company to its bankers;
(xi) a certificate written confirmation from the Sellers that there are no subsisting guarantees given by any Group Company in their favor or in respect of any of their indebtedness and that none of the Secretary of each Company, dated Sellers is indebted to the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation Company or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a partyvice versa;
(xii) evidencea certified copy of the Minutes recording the resolution of the boards of directors of the Sellers authorizing the sale of the Shares, the execution of this Agreement and of all agreements and documents to be executed pursuant to or in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunderconnection with this Agreement by the persons so executing them;
(xiii) resignations (which shall include a release all contractual documents, deeds, documents of title and documents constituting security for loans and all claims similar papers held by the applicable director or officer against each Company) on behalf of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit DCompany;
(xiv) documentary evidence a Special Resolution of the termination shareholders of the Casino Management Agreement Company and a Statutory Declaration of the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form directors of the Company and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event supporting report of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially auditors in the agreed form of Exhibit E attached hereto, and such other affidavits relating to authorising the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated giving by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner Company of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.financial assistance
Appears in 1 contract
Deliveries at Closing. At the Closing:
(a) At or prior to the Closing, HoldCo Seller shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesPurchaser, the following:
(i) a duly executed general b▇▇▇ of sale and assignment, in the form of Exhibit D attached hereto (A) a true, complete and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written ConsentB▇▇▇ of Sale”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow AgreementAssignment and Assumption Agreements and any other agreements or instruments necessary for assignment and assumption of the Assumed Liabilities, duly executed by Stockholder RepresentativeSeller;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)releases, in form and substance reasonably satisfactory to Buyer PartiesPurchaser, evidencing discharge, removal and termination of all Liens (other than Permitted Liens) to which any of the Transferred Assets are subject, which releases shall be effective at or prior to the Closing, and duly executed UCC-3 Termination Statements terminating each outstanding UCC-1 Financing Statement relating to such Liens or the Transferred Assets;
(iv) duly executed UCC-3 Amendments assigning each outstanding UCC-1 Financing Statement in favor of Seller relating to the Credit Enhancements to Purchaser;
(v) all certificates or other instruments evidencing Securities of at least eighty percent (80%) of the book value of all Securities together with such other documentation necessary to effectuate the re-issuance of the Securities in the name of Purchaser upon presentation to the issuer thereof, the remainder of which Seller shall be obligated to deliver to Purchaser within ninety (90) calendar days after the Closing Date;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificateofficer’s certificate referenced in Section 5.4(c) hereto;
(vii) at least one Business Day prior to a certification from Seller in accordance with United States Treasury Regulation Section 1.1445-2(b)(2)(i) and in the Closing, form provided in United States Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (the Closing Indebtedness “FIRPTA Certificate”);
(viii) duly executed consents to the Closing Certificateassignment of all Contracts, in the manner contemplated in Section 1.17(a)including all Financing Contracts and Credit Enhancements, requiring prior written consent to assignment;
(ix) a Trademark Assignment Agreement with respect to the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, Trademark in substantially the form attached hereto as Exhibit DE (the “Trademark Assignment Agreement”), duly executed by Seller and duly notarized;
(xivx) documentary evidence of a Domain Name Assignment Agreement in substantially the termination of form attached hereto as Exhibit F (the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ “Domain Name Assignment Agreement”), each in form and substance reasonably satisfactory to Buyer Parties;duly executed by Seller; and
(xvxi) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating duly executed documents and certificates as may be required to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required be delivered by Seller pursuant to the terms of this Agreement or as may be reasonably requested by Purchaser prior to the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order Closing and necessary to effectuate the consummation of the Merger or consummate the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closinghereby.
(b) At the Closing, Parent and/or Operator, as applicable, has deliveredPurchaser shall deliver, or caused cause to be delivered, to Stockholder Representative or Seller the Exchange Agentfollowing:
(i) the Escrow Agreement, duly executed Closing Date Cash Payment and the Payoff Amount by Parent and Operatorwire transfer of immediately available funds to an account of Seller designated by Seller no later than two (2) Business Days prior to the Closing;
(ii) the Parent Closing Merger Consideration (in Assignment and Assumption Agreements and any other agreements or instruments necessary for assignment and assumption of the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator)Assumed Liabilities, in each case in accordance with Section 1.14duly executed by Purchaser;
(iii) a the officer’s certificate of the Secretary of each Buyer Party, dated the Closing Date, referenced in form and substance reasonably satisfactory to HoldCo, certifying as to: Section 5.5(c) hereto;
(iiv) the Charter Documents of such Buyer PartyTrademark Assignment Agreement, duly executed by Purchaser;
(ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iiiv) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated Domain Name Assignment Agreement, duly executed by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyPurchaser; and
(ivvi) any such other items or duly executed documents and certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause as may be required to be taken) all such further actions, do (delivered by Purchaser pursuant to the terms of this Agreement or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by Seller prior to the other Parties in order Closing and necessary to effectuate the consummation of the Merger or consummate the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closinghereby.
Appears in 1 contract
Deliveries at Closing. (a) At the Closing, Bear State and the Bank shall deliver to Arvest:
(i) counterpart signature pages to each of the Transaction Documents (other than this Agreement and the Shareholder Voting Agreements) to which Bear State, the Bank or any of their Affiliates are to be a party that are to be executed at Closing;
(ii) a certificate executed by the Chairman or President of Bear State and a certificate executed by the Chairman or President of the Bank, in each case, certifying as to the matters described in Section 8.3(c);
(iii) a certificate (the “Closing Financial Certificate”) signed by the Chairman or President of the Bank and Bear State, certifying as to (A) the number of issued and outstanding shares of Bear State Common Stock determined immediately prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(iB) (A) a true, complete the names and correct copy addresses of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreementall Option Holders, the Merger number of options held by each such Option Holder, and the amount to which each such Option Holder is entitled to pursuant to Section 3.2(a), (C) the names and addresses of all Warrant Holders, the number of shares underlying Warrants held by each such Warrant Holder, and the amount to which each such Warrant Holder is entitled pursuant to Section 3.2(b), (D) the names and addresses of all RSU Holders, the number of RSUs held by each such RSU Holder, and the amount to which each such RSU Holder is entitled pursuant to Section 3.2(c), and (E) the aggregate amount of all fees incurred up to the Effective Time for services rendered to either Bear State or the Bank by their respective Advisors in connection with the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow this Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness certified copies of the Companies (Articles of Incorporation and Bylaws of each of Bear State and the “Closing Indebtedness”)Bank, which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); providedin each case, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Businesstogether with all amendments thereto;
(v) documentary evidence good standing certificates, dated no more than ten (10) Business Days prior to the Closing Date, issued by the Arkansas Secretary of the release State and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted EncumbrancesASBD, as applicable (applicable, certifying as to the “Closing Liens”), existence and good standing of Bear State and the Bank in form and substance reasonably satisfactory to Buyer Partiesthe State of Arkansas;
(vi) at least one Business Day prior to certified copies of the Closingresolutions of (A) the Board of Directors of Bear State approving this Agreement and the Merger, and (B) the Closing Transaction Expenses CertificateBoard of Directors of the Bank approving the Bank Merger Agreement and the Bank Merger;
(vii) at least one Business Day prior to certified copies of the Closingresolutions of the (A) shareholders of Bear State approving this Agreement and the Merger, and (B) the Closing Indebtedness Certificatesole shareholder of the Bank approving the Bank Merger Agreement and the Bank Merger;
(viii) all other certificates, schedules, or other items required to be delivered to Arvest by Bear State or the Closing Certificate, in the manner contemplated in Section 1.17(a);Bank or any of their Affiliates pursuant to this Agreement or any other Transaction Document and not theretofore delivered; and
(ix) the Consideration Spreadsheet, agreement in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate favor of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated Arvest executed by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Agreementand Bear State Financial Holdings LLC regarding the name change or liquidation of certain entities and covenant not to use the name Bear State in connection with a bank or other financial institution, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of attached hereto as Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.E.
(b) At the Closing, Parent and/or Operator, Arvest shall deliver or cause to be delivered to Bear State and the Bank (as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:):
(i) counterpart signature pages to each of the Escrow Agreement, duly Transaction Documents (other than this Agreement and the Shareholder Voting Agreements) to which Arvest or any of its Affiliates are to be party that are to be executed by Parent and Operatorat Closing;
(ii) a certificate executed by the Parent Closing Merger Consideration (President or a Vice President of Arvest certifying as to the matters described in the case of Parent) and the Operator Closing Merger Consideration (in the case of OperatorSection 8.2(c), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Partygood standing certificates, dated no more than ten (10) Business Days prior to the Closing Date, in form issued by the Arkansas Secretary of State and substance reasonably satisfactory to HoldCoASBD, as applicable, certifying as to: to the existence and good standing of Arvest and Acquisition in the State of Arkansas;
(iiv) the Charter Documents certified copies of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board Boards of directors (or equivalent governing body) Directors of each Buyer Party Arvest and Acquisition authorizing the transactions contemplated by execution of this Agreement and the execution, delivery and performance consummation of the transactions contemplated hereby;
(v) a certified copy of the resolutions of the sole shareholder of Acquisition approving this Agreement and each the Merger;
(vi) all other certificates, schedules, or other items required to be delivered by Arvest or Acquisition to Bear State, the Bank or any of their respective Affiliates pursuant to this Agreement or any other Transaction Document to which such Buyer Party is a partyand not theretofore delivered; and
(ivvii) any other items or certificates the agreement described in Section 5.3 below2.7(a)(ix) executed by Arvest.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo Seller shall execute and/or deliver, as applicable, deliver or cause to be executed and/or delivered, delivered to Buyer PartiesBuyer:
(i) (A) a truecertificates representing the Equity Interests, complete and correct copy of the written consent duly endorsed or other agreement from the Stockholders, representing approval accompanied by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the powers duly executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consentin blank for transfer;
(ii) (A) a copy, certified by the Escrow Secretary of Seller or Assistant Secretary of Seller, of the resolutions of its board of directors authorizing the execution and delivery of this Agreement and the Related Documents, and consummation of the Transactions, and in each case such resolutions shall be in full force and effect and not revoked; (B) copies, certified by the Secretary of the Company, of the resolutions of the Company’s board of directors authorizing the execution and delivery of this Agreement and the Related Documents, and consummation of the Transactions, and in each case such resolutions shall be in full force and effect and not revoked; (C) a certificate of the Secretary or an Assistant Secretary or Manager (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of the Organizational Documents of the Company; and (D) a certificate dated as of a date not more than twenty (20) Business Days prior to the Closing Date as to the good standing of the Company, issued by the appropriate Governmental Entity of the jurisdiction of the Company’s organization;
(iii) the original stock books and corporate minutes books of the Company;
(iv) copies of the executed resignations, effective as of the Closing Date, from the directors and officers of the Company, duly executed by such director or officer of the Company;
(v) a counterpart of the Transition Services Agreement, duly executed by Stockholder Representative;
(iii) certificates an authorized officer of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer PartiesSeller;
(vi) at least one Business Day prior to a counterpart of the ClosingTransitional Intellectual Property License, the Closing Transaction Expenses Certificateduly executed by an authorized officer of Seller;
(vii) at least one Business Day prior such affidavits or instruments as the Title Company may reasonably require to issue final policies of the Closing, title insurance conforming in all respects with the Closing Indebtedness CertificatePro-forma Title Insurance Policies (with any such affidavits to be executed by Seller);
(viii) the Closing Certificate, a FIRPTA certificate in the manner contemplated in form consistent with Treasury Regulations Section 1.17(a1.1445 2(b)(2)(iv);
(ix) a copy of the Consideration Spreadsheet, Players List in the manner contemplated in Section 1.14(eelectronic format described on Schedule 3.6(a)(ix);
(x) those consents or approvals identified on Schedule 1.19(a)(xto the extent received by Seller prior to the Closing, a copy of any executed estoppel certificate pursuant to Section 6.4(c);
(xi) a certificate of the Secretary of each Companysuch other agreements, dated the Closing Date, documents and items specified in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;Section 7.2(d); and
(xii) evidencea quitclaim deed, substantially in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
E, whereby Seller conveys to the Company its interest in that certain parcel of real estate described as “Lot One (xiv1) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇Block 28 in ▇▇▇▇▇ ▇▇▇▇▇ Agreement▇▇▇▇, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating Jr.’s Addition to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies City of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto▇▇▇▇▇▇▇▇, in each case▇▇▇▇▇▇▇ County, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificatesIowa, permits, licenses and approvals (in each case according to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingrecorded plat thereof.”
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, Buyer shall deliver or caused cause to be delivered, delivered to Stockholder Representative or the Exchange AgentSeller:
(i) the Escrow Closing Payment as provided in Section 3.1(a);
(ii) a counterpart of the Transition Services Agreement, duly executed by Parent and Operator;an authorized officer of Buyer; and
(iiiii) a counterpart of the Parent Closing Merger Consideration Transitional Intellectual Property License, duly executed by an authorized officer of Buyer; and
(in iv) (A) a copy, certified by the case Secretary of Parent) Buyer, of the resolutions of its board of directors authorizing the execution and delivery of this Agreement and the Operator Closing Merger Consideration (in Related Documents, and consummation of the case of Operator)Transactions, and in each case such resolutions shall be in accordance with Section 1.14;
full force and effect and not revoked; (iiiB) a certificate of the Secretary (or equivalent officer) of each Buyer Party, dated certifying that attached thereto are true and complete copies of the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Organizational Documents of such Buyer Party, Buyer; and (iiC) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect a certificate dated as of a date not more than twenty (20) Business Days prior to the Closing Date and (iii) as to the resolutions good standing of Buyer, issued by the appropriate Governmental Entity of the board jurisdiction of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 belowBuyer’s organization.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Isle of Capri Casinos Inc)
Deliveries at Closing. At the Closing:
(a) At or prior Sellers shall deliver to AirTran the items described in clauses (i) through (v) below, to the extent applicable with respect to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(i) (A) a true, complete an assignment containing the terms and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger conditions agreed between AirTran and the transactions contemplated hereby (collectivelyCity of Chicago as set forth in Exhibit C, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge assignment shall be in form and substance reasonably satisfactory to Buyer Parties with respect AirTran and pursuant to which Sellers will assign all Indebtedness right, title and interest of Sellers in and to the Companies Facilities Lease (the “Closing IndebtednessFacilities Lease Assignment”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge and a general ▇▇▇▇ of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release sale and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)assignment, in form and substance reasonably satisfactory to Buyer PartiesAirTran (the “▇▇▇▇ of Sale”), in each case with respect to the Transferred Assets to be conveyed by Sellers at the Closing together with any other documents reasonably requested by AirTran so as to assign, transfer and convey to AirTran good and valid title, free and clear of all Liens (other than Permitted Liens), to all right, title and interest in and to the Transferred Assets, each executed by ATA;
(viii) at least one Business Day prior instruments of conveyance or consents to assignment for the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate assignment of the Secretary of each Company, dated the Closing DatePermanent Slots, in form and substance reasonably satisfactory to Buyer PartiesAirTran, certifying executed by each applicable Seller;
(iii) the officers’ certificates referenced in Section 5.4(c);
(iv) the agreements referred to in Sections 8.7, 8.16, 8.17, 8.18, 8.19, 8.20, 8.21, 8.22 (if any), 8.24 (if any) and 9.4; and
(v) all other agreements, documents, certificates, instruments or writings contemplated or described herein or as to: reasonably requested by AirTran in connection herewith.
(b) Sellers shall use their best efforts to effect, by appropriate transfer documents satisfactory in form and substance to AirTran, the transfer at Closing to AirTran of all Sellers’ interest in such of the Station Leases, the Assumed Ground Equipment Leases, the Service Agreements and the Assumed Gate Property Leases, as AirTran may request. In the event, despite Sellers’ best reasonable efforts, Sellers are unable to assign or transfer any such leases or agreements, such failure shall not be a default by Sellers under this Agreement or a basis for termination of this Agreement by AirTran, but, in such event, Sellers shall cooperate fully with AirTran, by such alternative arrangements as may be reasonably available, to provide AirTran with the benefit of such leases or agreements. To the extent consistent with the level of AirTran’s use of the facilities governed by the Station Leases, and so long as neither of Sellers is owned or controlled, directly or indirectly, by another airline, or under common control with another airline (exclusive of Chicago Express Airlines, Inc.), AirTran will at Closing, or as promptly after Closing as practicable, enter into arrangements with Sellers, as may reasonably be requested by Sellers at Closing, to permit Sellers continued access on commercially reasonable terms, to be agreed by the parties, to such facilities governed by the Station Leases assumed by AirTran and the Assumed Gate Property Leases that are and so long as staffed by AirTran personnel. Such arrangements shall be for a period of at least two (2) years from the date of Closing, or the earlier termination of such Station Leases (no such arrangements to be further assignable or transferable by Sellers);
(c) AirTran shall deliver to Sellers, to the extent applicable with respect to the Closing, the items described in clauses (i) through (iv) below:
(i) the Charter Documents portion of such Companythe Acquisition Price to be paid at Closing (less as provided in Section 4.1), by wire transfer of immediately available funds to the Certificate of Designation and the Agreement Among Investors account or accounts designated by Sellers;
(ii) that there have been no amendments one or more assumption agreements pursuant to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of which AirTran assumes at the Closing Date and (iv) the resolutions of Assumed Liabilities being assumed at the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidenceClosing, in form and substance reasonably satisfactory to Buyer PartiesSellers (collectively, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ “Assumption Agreement”), each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed and delivered by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14AirTran;
(iii) a the officer’s certificate of the Secretary of each Buyer Party, dated the Closing Date, referenced in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partySection 5.5(c); and
(iv) any all other items agreements, documents, certificates, instruments or certificates writings contemplated or described in Section 5.3 below.
(c) Each Party and its Representatives shall take (herein or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties Sellers in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingconnection herewith.
Appears in 1 contract
Deliveries at Closing. At Closing the parties shall deliver to each other the documents and items indicated below:
(a) At or prior Seller shall deliver to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer PartiesBuyer:
(i) An appropriate “Seller’s Affidavit” or other acceptable evidence attesting to the absence of liens, lien rights, rights of parties in possession (Aother than Tenant) a trueand other encumbrances arising under Seller (other than the Permitted Exceptions) naming both Buyer and Title Company as benefited parties, complete so as to enable Title Company to delete the “standard” exceptions for such matters from Buyer’s owner’s policy of title insurance and correct copy otherwise insure any “gap” period occurring between the Closing and the recordation of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby closing documents.
(collectively, the “Written Consent”); and (Bii) true, complete and correct copies of the A duly executed Letters of Transmittal special warranty deed with respect to the shares of capital stock of HoldCo held Premises, subject to no exceptions other than the Permitted Exceptions, in substantially the form approved by the Stockholders that executed Seller and Title Company, revised as needed to conform to the Written Consent;
(ii) requirements of state law for the Escrow Agreement, duly executed by Stockholder Representative;state in which the Premises are located.
(iii) certificates A duly executed Assignment of good standingLicenses, dated as Permits, Contracts and Warranties with respect to the Premises in the form approved by Seller, together with all of the Closing Date (or, as necessary, the most recent practicable date), for the Companies documents assigned thereby in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;Seller’s possession or control.
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness D▇▇▇ executed counterparts of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;closing statement.
(v) documentary evidence An appropriate FIRPTA Affidavit or Certificate by S▇▇▇▇▇, evidencing that Seller is not a foreign person or entity under Section 1445(f)(3) of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted EncumbrancesInternal Revenue Code, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;amended.
(vi) at least one Business Day prior to An executed counterpart of the Closing, the Closing Transaction Expenses Certificate;Lease.
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;An Internal Revenue Service (IRS) 1099 Information Form.
(viii) A closing certificate executed by Seller representing and warranting that the Closing Certificaterepresentations and warranties set forth in this Agreement are true and correct on and as of the Closing, in the manner contemplated in Section 1.17(a);or, if there have been changes, describing such changes.
(ix) A resolution, certificate, and/or other evidence reasonably satisfactory to the Consideration SpreadsheetTitle Company that the person executing the Closing documents on behalf of S▇▇▇▇▇ has full right, in the manner contemplated in Section 1.14(e);power, and authority to do so.
(x) those consents or approvals identified on Schedule 1.19(a)(x);The insurance certificates required under the Lease.
(xi) A subordination nondisclosures attornment agreement (“SNDA”) in a form reasonable acceptable to Seller, as tenant and Buyer’s lender.
(xii) A commencement date certificate confirming the commencement date and expiration date of the Secretary of each Company, dated Lease (“Lease Commencement Date Certificate”).
(xiii) A tenant estoppel certificate which (a) confirm that the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are tenant’s lease is in full force and effect as and (b) states to the best of tenant’s knowledge that (i) Seller is not in default under the lease (or specifying the default claims, if any), (ii) the date through which rent has been paid, and (iii) the amount of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the executionsecurity deposit, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;if any.
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance Such other closing documents as are reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as necessary from the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request Company in order to effectuate consummate the consummation of the Merger or the transactions transaction contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingthis Agreement.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused Buyer shall deliver to be delivered, to Stockholder Representative or the Exchange AgentSeller:
(i) The Purchase Price, less all the Escrow Agreementdeductions, duly executed by Parent prorations, and Operator;credits provided for herein.
(ii) D▇▇▇ executed counterparts of the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;closing statement.
(iii) a certificate An executed counterpart of the Secretary Assignment of each Buyer PartyLicenses, dated Permits, Contracts and Warranties with respect to the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; andPremises.
(iv) any other items or certificates described in Section 5.3 belowAn executed counterpart of the Lease Commencement Date Certificate.
(cv) Each Party and its Representatives shall take An executed counterpart of the Lease.
(or cause to be takenvi) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further Such other closing documents as may be are reasonably requested by necessary from the other Parties Title Company in order to effectuate consummate the consummation of the Merger or the transactions transaction contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closingthis Agreement.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Contract (Delta Apparel, Inc)
Deliveries at Closing. At the Closing,
(a) At SELLER will execute and deliver or prior to the Closing, HoldCo shall execute and/or deliver, as applicable, or cause caused to be executed and/or delivered, and delivered to Buyer PartiesBUYER:
(i) (A) a true, complete and correct copy Each of the written consent Transaction Documents, including the SELLER’s Guaranty, to which SELLER, DCP or any of SELLER’s other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentAffiliates are a party;
(ii) Certificates issued by appropriate Governmental Authorities evidencing the Escrow Agreementgood standing and existence of each of SELLER, duly executed by Stockholder RepresentativeCENTANA, DDI, COG, Mobile Bay and DIGS in Delaware, as of a date not more than 30 days prior to the Closing Date;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable dateThe certificate referred to in Section 8.3(d), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of BusinessThe Resignations;
(v) documentary evidence A Non-Foreign Certificate in the form of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer PartiesExhibit C;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses CertificateThe SELLER Required Consents;
(vii) at least one Business Day prior to Certificates or other instruments evidencing the Closingtransfer and conveyance of the Subject Interests, the Closing Indebtedness Certificateas required by Section 8.3(j);
(viii) Evidence of the Closing Certificate, in assignment and conveyance of the manner contemplated in Section 1.17(a);Transferred Assets to an Affiliate of SELLER; and
(ix) A wire transfer of the Consideration Spreadsheet, in Escrow Fund to the manner contemplated in Section 1.14(e);designated account of the Escrow Agent.
(xb) those consents BUYER will execute and deliver or approvals identified on Schedule 1.19(a)(x);caused to be executed and delivered to SELLER:
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) Each of the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Transaction Documents, including the Certificate of Designation or the Agreement Among InvestorsBUYER’s Guaranty, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is BUYER or BUYER’s Affiliates are a party;
(xiiii) evidenceCertificates issued by appropriate Governmental Authorities evidencing the good standing and existence of BUYER in Delaware, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least a date not more than 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14Date;
(iii) a The certificate of the Secretary of each Buyer Party, dated the Closing Date, referred to in form and substance reasonably satisfactory to HoldCo, certifying as to: Section 8.2(d);
(iiv) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyThe BUYER Required Consents; and
(ivv) any other items or certificates described A wire transfer to SELLER of the amount due to SELLER at Closing as set forth in Section 5.3 below2.2 above.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Midstream Partners, LP)
Deliveries at Closing. (a) At or prior to Contemporaneously with the Closing, HoldCo shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, to Buyer Parties:
(i) (A) a true, complete execution and correct copy of the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo delivery of this Agreement, Sellers have delivered to Purchaser the Merger and the transactions contemplated hereby following:
(collectivelya) The Share Certificates, the “Written Consent”); and (B) trueduly endorsed in blank, complete and correct copies evidencing all of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written ConsentShares;
(iib) the Escrow Agreement, duly executed by Stockholder RepresentativeWritten consent of Comerica Bank;
(iiic) certificates Written resignations of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization and from each of the other states in which any officers and directors of the Companies are qualified to do business as a foreign PersonAction;
(ivd) payoff letters or other evidence of discharge in form The Noncompetition Agreement between Action and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies Bill▇ ▇. ▇▇▇▇▇, ▇▇. (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a"▇hite");
(ixe) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e)The Noncompetition Agreement between Action and Kenn▇▇▇ ▇▇▇i▇ ▇▇▇▇;
(xf) those consents or approvals identified on Schedule 1.19(a)(x)The Noncompetition Agreement between Action and Bill▇ ▇. ▇▇▇▇▇, ▇▇.;
(xig) a certificate of the Secretary of each Company, dated the Closing Date, in form The Noncompetition Agreement between Action and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit D;
(xiv) documentary evidence of the termination of the Casino Management Agreement and the St. R. Dani▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreement, each in form and substance reasonably satisfactory to Buyer Parties;
(xvh) evidence, in form and substance reasonably Evidence satisfactory to Buyer PartiesPurchaser that the Split Dollar Agreements have been terminated and that Action has no further obligation or liability (whether accrued, contingent or otherwise) for the payment of any premium or other amount in respect of the insurance policies described therein and that Margaritaville Action has confirmed that no event of default exists under the Margaritaville Agreement;
(xvi) executed affidavits for all Real Property substantially in the form of Exhibit E attached hereto, and such other affidavits relating distributed to the New Title Policy as Shareholders of Action the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating theretopromissory notes which, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case prior to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger , were held by Action to evidence amounts which have been paid by Action in respect of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closing.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:such insurance policies;
(i) Evidence satisfactory to Purchaser that Action and each Seller has executed and delivered a waiver of their statutory preemptive rights and their respective rights under Article VI, Sections 5-6, of Action's Bylaws with respect to restrictions on the Escrow Agreement, duly executed by Parent and Operatortransfer of the Shares to Purchaser;
(iij) Evidence reasonably satisfactory to Purchaser that the Parent Closing Merger Consideration ("Shareholders Agreement for Common Stock in the case of Parent) Action TV and the Operator Closing Merger Consideration (in the case of Operator)Appliance Rental, in Inc." by and among Action and each case in accordance with Section 1.14Seller has been irrevocably terminated;
(iiik) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance Evidence reasonably satisfactory to HoldCoPurchaser that all accounts receivable, certifying as to: (i) accounts payable, loan and other indebtedness by and between Action, on the Charter Documents of such Buyer Partyone hand, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are any Seller or any company or other entity in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is Seller has a direct or indirect financial interest, on the other hand, has been paid in full;
(l) Evidence satisfactory to Purchaser that all real estate owned by Action has been conveyed and transferred by Action to a third party; and
(ivm) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause Evidence satisfactory to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine Purchaser that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause leases for stores currently used by Action but executed in the appropriate Persons to execute and deliver all such instruments and take all such actions name of White as the requesting Party may reasonably determine tenant have been assigned to be necessary either before, at or following the ClosingAction.
Appears in 1 contract
Deliveries at Closing. (a) At or prior to the Closing, HoldCo shall execute and/or deliverthe Contributors, as applicable, will, or will cause their respective applicable Subsidiaries to, deliver to be executed and/or delivered, to Buyer PartiesCFI and OP:
(i) (A) a truedocuments and instruments, complete reasonably satisfactory to CFI and correct copy OP, evidencing the completion of the written consent or CC Pre-Closing Contribution other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (B) true, complete and correct copies of the executed Letters of Transmittal than with respect to (i) obtaining any Consents relating to the shares CC Contributed Assets (which, for the avoidance of capital stock of HoldCo held doubt, shall, following Closing, be addressed in the manner contemplated by the Stockholders that executed the Written ConsentSection 2.3) and (ii) effecting any Transfer Documents under local Laws pursuant to Section 2.4;
(ii) the Escrow Investment Management Agreement, duly executed by Stockholder Representative;
(iii) certificates of good standing, dated as of the Closing Date (or, as necessary, the most recent practicable date), for the Companies in their respective jurisdiction(s) of organization between CRM and from each of the other states in which any of the Companies are qualified to do business as a foreign Person;
(iv) payoff letters or other evidence of discharge in form and substance reasonably satisfactory to Buyer Parties with respect to all Indebtedness of the Companies (the “Closing Indebtedness”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities of the Companies specifically related to the operation of the Casino in the Ordinary Course of Business;
(v) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”)CC, in form and substance reasonably satisfactory to Buyer Parties;
(vi) at least one Business Day prior to the Closing, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Company is a party;
(xii) evidence, in form and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has been terminated, and no Company shall have any remaining obligations thereunder;
(xiii) resignations (which shall include a release of all claims by the applicable director or officer against each Company) of the directors and officers of each of the Companies, in substantially the form attached hereto as Exhibit DK (the “CRM Investment Management Agreement”), duly executed by CRM and CC;
(xiviii) documentary an Assignment of Member Interests, substantially in the form attached hereto as Exhibit L, duly executed by each Contributor, providing for the admission of OP (i) as the sole member in place of CC and CCH of NewCo, as evidence of the termination CC’s and CCH’s contribution of the Casino Management Agreement NewCo Interests to OP, (ii) as a member in place of FHB LLC of CRP, as evidence of FHB LLC’s contribution of CRP Interests to OP and the St. (iii) as a member in place of ▇▇▇▇▇▇▇▇ of CRM, as evidence of ▇▇▇▇▇▇▇▇’▇ Agreement, each in form and substance reasonably satisfactory contribution of CRM Interests to Buyer PartiesOP;
(xviv) evidencea counterpart of the Trademark License Agreement, in the form and substance reasonably satisfactory to Buyer Partiesattached hereto as Exhibit M (the “CAH License Agreement”), that Margaritaville has confirmed that no event of default exists under the Margaritaville Agreementduly executed by Colony AH Member LLC;
(xviv) an Amended and Restated Limited Liability Company Agreement of OP, in the form attached hereto as Exhibit N (the “OP LLC Agreement”), duly executed affidavits by the Contributors, as new members;
(vi) if applicable under Section 2.5, the CIML Investment Management Agreement, duly executed by CC (or an Affiliate thereof designated by CC);
(vii) a certificate of non-foreign status of each Contributor (or, if relevant, its sole owner for all Real Property U.S. federal income tax purposes), substantially in the form of Exhibit E attached hereto, and such other affidavits relating to the New Title Policy as the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating thereto, set forth in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section Treas. Regs. Sec. 1.1445-2(b)(22(b);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxvviii) such other typical and customary certificates, documents and instruments as CFI and OP may reasonably request related to (i) the fixed asset ledger of CC Pre-Closing Contribution and (ii) the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the ClosingContribution.
(b) At the Closing, Parent and/or OperatorCFI will, or will cause OP to, as applicable, has delivered, deliver to the applicable Contributor or caused to be delivered, to Stockholder Representative or Contributors all of the Exchange Agentfollowing:
(i) documents and instruments, reasonably satisfactory to CC, evidencing the Escrow Agreementcompletion of the CFI Pre-Closing Contribution other than with respect to (i) obtaining any Consents relating to the CFI Contributed Assets (which, duly executed for the avoidance of doubt, shall, following Closing, be addressed in the manner contemplated by Parent Section 2.3) and Operator(ii) effecting any Transfer Documents under local Laws pursuant to Section 2.4;
(ii) a certified copy of the Parent Closing Merger Consideration (in Charter Amendment filed with the case State Department of Parent) Assessments and the Operator Closing Merger Consideration (in the case Taxation of Operator), in each case in accordance with Section 1.14Maryland;
(iii) a certificate confirmation executed by an authorized officer of CFI of the Secretary issuance of each Buyer Partythe New Shares in accordance with Section 3.3;
(iv) a confirmation executed by the managing member of OP of the issuance of the New Units in accordance with Section 3.3(b);
(v) a counterpart of the CAH License Agreement, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: duly executed by OP;
(ivi) the Charter Documents of such Buyer PartyOP LLC Agreement, duly executed by CFI;
(iivii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of if applicable under Section 2.5, the Closing Date and (iii) the resolutions of the board of directors CIML Investment Management Agreement, duly executed by OP (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated an Affiliate thereof designated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a partyOP); and
(ivviii) any other items or certificates described a certificate of non-foreign status of CFI, substantially in Section 5.3 below.the form set forth in Treas. Regs. Sec. 1.1445-2(b);
(cix) Each Party such other typical and its Representatives shall take (or cause to be taken) all such further actionscustomary certificates, do (or cause to be done) all such further things documents and execute (or cause to be executed) all such further documents instruments as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party CC may reasonably determine request related to be necessary either before, at or following the ClosingContribution.
Appears in 1 contract
Sources: Contribution and Implementation Agreement (Colony Financial, Inc.)
Deliveries at Closing. At the Closing:
(a) At or prior to the Closing, HoldCo Seller Representative shall execute and/or deliver, as applicable, or cause to be executed and/or delivered, deliver to Buyer Parties:
(i) (A) a true, complete and correct copy of non-foreign affidavit in the written consent or other agreement from the Stockholders, representing approval by the holders of at least 98% of the outstanding shares of capital stock of HoldCo of this Agreement, the Merger and the transactions contemplated hereby (collectively, the “Written Consent”); and (form attached hereto as Exhibit B) true, complete and correct copies of the executed Letters of Transmittal with respect to the shares of capital stock of HoldCo held by the Stockholders that executed the Written Consent;
(ii) the Escrow Agreement, duly executed by Stockholder Representativeeach Seller;
(iiib) certificates each Seller shall deliver to Buyer the Third Amended and Restated Target Operating Agreement, in the form attached hereto as Exhibit C, duly executed by such Seller, which shall evidence the transfer of good standingthe Transferred Interests to Buyer;
(c) Seller Representative shall execute and deliver to Buyer a certificate, dated as of the Closing Date (orDate, as necessary, certifying that the most recent practicable date), for the Companies conditions set forth in their respective jurisdiction(sSections 8.01(a) of organization and from each of the other states in which any of the Companies are qualified to do business as a foreign Person8.01(b) have been satisfied;
(ivd) payoff letters or other evidence Seller Representative shall provide to Buyer a Certificate of discharge Good Standing from the Secretary of State of the State of Oklahoma and the Secretary of State of the State of North Dakota as to the legal existence and good standing of Target, dated within three Business Days of the Closing Date;
(e) Seller Representative shall deliver to Buyer copies of releases and terminations in form and substance reasonably satisfactory to Buyer Parties with respect of all Liens (other than Permitted Liens) burdening the Transferred Interests or Properties (or any portion thereof), in each case, duly executed by the appropriate Persons;
(f) Seller Representative, on behalf of each Seller, shall execute and deliver to all Indebtedness Buyer an assignment of Transferred Interests in the Companies form attached hereto at Exhibit E (the “Closing IndebtednessAssignment”), which such Closing Indebtedness shall be set forth on Schedule 1.19(a)(iv); provided, however, that this Section 1.19(a)(iv) shall not be deemed to require discharge of those current liabilities effectuating the transfer of the Companies specifically related Transferred Interests to the operation of the Casino in the Ordinary Course of BusinessBuyer;
(vg) documentary evidence of the release and discharge of any guarantees or Liens (including, without limitation, all appropriate UCC financing statement amendments and termination statements) affecting the Companies, except for Permitted Liens or Permitted Encumbrances, as applicable (the “Closing Liens”), in form and substance reasonably satisfactory Seller Representative shall deliver a certificate to Buyer Parties;
(vi) at least one Business Day prior certifying that the powers of attorney executed by each Seller continue to the Closingbe valid and enforceable and grant Seller Representative, on behalf of each such Seller, the Closing Transaction Expenses Certificate;
(vii) at least one Business Day prior power and authority to the Closing, the Closing Indebtedness Certificate;
(viii) the Closing Certificate, in the manner contemplated in Section 1.17(a);
(ix) the Consideration Spreadsheet, in the manner contemplated in Section 1.14(e);
(x) those consents or approvals identified on Schedule 1.19(a)(x);
(xi) a certificate of the Secretary of each Company, dated the Closing Date, in form enter into and substance reasonably satisfactory to Buyer Parties, certifying as to: (i) the Charter Documents of such Company, the Certificate of Designation and the Agreement Among Investors (ii) that there have been no amendments to such Charter Documents, the Certificate of Designation or the Agreement Among Investors, (iii) that such Charter Documents, the Certificate of Designation and the Agreement Among Investors, are in full force and effect as of the Closing Date and (iv) the resolutions of the board of directors of each Company authorizing consummate the transactions contemplated by this Agreement and the execution, delivery Transaction Documents on the terms contained herein and performance of this Agreement and each Transaction Document to which such Company is a partytherein;
(xiih) evidenceBuyer shall execute and deliver to Seller Representative a certificate executed by a duly authorized officer of Buyer, dated as of the Closing Date, certifying that the conditions set forth in form Sections 8.02(a) and substance reasonably satisfactory to Buyer Parties, that each Affiliate Contract has 8.02(b) have been terminated, and no Company shall have any remaining obligations thereunderfulfilled;
(xiiii) resignations (which Buyer shall include a release of all claims by execute and deliver to Seller Representative the applicable director or officer against each Company) of the directors Third Amended and officers of each of the CompaniesRestated Target Operating Agreement, in substantially the form attached hereto as Exhibit DC;
(xivj) documentary evidence Buyer shall deliver to Seller Representative a certificate, duly executed by an officer of Buyer and dated as of the termination Closing Date (i) attaching and certifying on behalf of Buyer complete and correct copies of (A) the resolutions or unanimous consent of the Casino Management managers (or other applicable Persons) of Buyer authorizing the execution, delivery, and performance by Buyer of this Agreement and the St. Transactions contemplated hereby, and (B) any required approval by the members of Buyer of this Agreement and the Transactions contemplated hereby and (ii) certifying on behalf of Buyer the incumbency of each officer of Buyer executing this Agreement or any Transaction Document;
(k) Buyer shall provide to Seller Representative a Certificate of Good Standing from the Secretary of State of the State of its formation as to the legal existence and good standing of Buyer, dated within three Business Days of the Closing Date;
(l) Buyer shall execute and deliver to Seller Representative the Assignment;
(m) Buyer shall deliver to Seller Representative and Sellers’ counsel (x) a copy of the final, execution copy of the credit agreement evidencing and securing the Financing which (i) evidences a maximum Buyer aggregate permitted indebtedness secured by Buyer’s interest in the Properties not to exceed $110,000,000.00 (exclusive of the Earn-Out Payment), and (ii) requires a repayment of indebtedness on or before June 30, 2016 such that after giving effect to such repayment, the maximum Buyer aggregate permitted indebtedness secured by Buyer’s interest in the Properties shall not exceed $80,000,000.00 (exclusive of the Earn-Out Payment); and (y) a guaranty executed by (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Agreementwhich provides for a financial guarantee of the Buyer’s obligation to make the Earn-Out Payment, subject to a mandatory guaranteed maximum amount not to exceed the fees received or to be received by American Energy Management Services (and/or its affiliates) from Buyer with respect to the acquisition, ownership or management of the Properties, and (ii) the operating entity of Energy 11 Operating Company, LLC which provides for a financial guarantee of the Buyer’s obligation to make the Earn-Out Payment, each of which guaranty shall be in a form and substance reasonably satisfactory mutually acceptable to Buyer PartiesSeller Representative, Sellers’ counsel and Buyer;
(xvn) evidenceBuyer shall deliver to Manager, to the account designated in form the Closing Date Statement, the Closing Purchase Price as determined pursuant to Sections 2.04 and substance reasonably satisfactory to Buyer Parties2.05, that Margaritaville has confirmed that no event of default exists under less the Margaritaville AgreementDeposit;
(xvio) executed affidavits for Seller Representative and Buyer shall execute and deliver to Manager a joint written instruction, in a mutually agreeable form, directing the Manager to distribute to the Deposit to Sellers in accordance with the Target Operating Agreement; and
(p) each Party shall deliver to the other Parties all Real Property substantially in the form of Exhibit E attached heretosuch other instruments, documents, and such other affidavits relating items reasonably necessary to effectuate the New Title Policy as terms of this Agreement and the Title Insurer may reasonably request;
(xvii) originals or copies of all Leases and all amendments thereto and other supplements relating thereto and copies of correspondence relating theretoTransactions contemplated hereunder, in each case, which are in HoldCo’s possession or control;
(xviii) originals or copies of all material certificates, permits, licenses and approvals (in each case to the extent relating to the Real Property and are in HoldCo’s possession or control);
(xix) any landlord consents required pursuant to the terms of the Leases;
(xx) the Customer Database; provided, however, that physical delivery of the Customer Database separate from the Companies information systems shall not be required;
(xxi) such other appropriately executed agreements or instruments as Buyer Parties may reasonably request in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents;
(xxii) a FIRPTA Statement from each Stockholder, or the sole beneficial owner of the Stockholder if the Stockholder is a disregarded entity for U.S. federal tax purposes, but only in the case of Stockholders or, in the case of Stockholders that are disregarded entities, their sole owners, that are not foreign persons within the meaning Treasury Regulations Section 1.1445-2(b)(2);
(xxiii) a certificate of HoldCo’s Chief Financial Officer (or other executive vested with similar duties) in the form of Exhibit F;
(xxiv) evidence, in form and substance reasonably satisfactory to Buyer Parties, that the Companies have taken the actions set forth on Schedule 1.19(a)(xxiv), solely to the extent the Buyer Parties have expressly requested in writing that the Companies take any such action after the date hereof; and
(xxv) the fixed asset ledger of the Companies as of the last day of the most recent calendar month ending at least 30 days prior to the Closingrequested.
(b) At the Closing, Parent and/or Operator, as applicable, has delivered, or caused to be delivered, to Stockholder Representative or the Exchange Agent:
(i) the Escrow Agreement, duly executed by Parent and Operator;
(ii) the Parent Closing Merger Consideration (in the case of Parent) and the Operator Closing Merger Consideration (in the case of Operator), in each case in accordance with Section 1.14;
(iii) a certificate of the Secretary of each Buyer Party, dated the Closing Date, in form and substance reasonably satisfactory to HoldCo, certifying as to: (i) the Charter Documents of such Buyer Party, (ii) that there have been no amendments to such Charter Documents and that such Charter Documents are in full force and effect as of the Closing Date and (iii) the resolutions of the board of directors (or equivalent governing body) of each Buyer Party authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Transaction Document to which such Buyer Party is a party; and
(iv) any other items or certificates described in Section 5.3 below.
(c) Each Party and its Representatives shall take (or cause to be taken) all such further actions, do (or cause to be done) all such further things and execute (or cause to be executed) all such further documents as may be reasonably requested by the other Parties in order to effectuate the consummation of the Merger or the transactions contemplated by the Transaction Documents. If a Party shall reasonably determine that any further conveyance, assignment or other document or any such further action is necessary, each other Party and its Representatives, shall cause the appropriate Persons to execute and deliver all such instruments and take all such actions as the requesting Party may reasonably determine to be necessary either before, at or following the Closing.
Appears in 1 contract