Transactions at the Closing. At the Closing, each of the following items shall be delivered: (a) Seller shall deliver to Purchaser the following: (i) such bills of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid title in and to all of the Acquired Assets owned by Seller free and clear of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Contracts; (ii) a certificate of Seller with respect to the matters described in Sections 8.1, 8.2, 8.5, 8.6, 8.12, and 8.18 hereof; (iii) a certificate of the Secretary or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 and 8.8 hereof; (iv) the opinion of counsel in substantially the form of EXHIBIT A hereto (the "Seller Opinion"); (v) copies of the consents and waivers described in Section 8.5 hereof; (vi) satisfactory evidence of the approvals described in Section 8.5 hereof; (vii) certificates of existence of Seller, as of a date within twenty (20) days prior to the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 hereto; (viii) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers; (ix) a 1099 certificate to the extent applicable; (x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicable; (xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended; (xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and (xiii) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement at or prior to the Closing Date as Purchaser or its counsel may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel. (b) Purchaser shall deliver to Seller the following: (i) wire transfer(s) in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agent; (ii) an instrument or instruments of assumption of the Assumed Liabilities, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel; (iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereof; (iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 and 9.6 hereof; (v) the opinion of counsel in substantially the form of EXHIBIT B hereto (the "Purchaser Opinion"); (vi) a certificate of existence of Purchaser, as of a date within twenty (20) days prior to the Closing Date, from the States of Delaware and Georgia; (vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before the Closing Date, as Seller or its counsel may reasonably require; and (viii) a 1099 certificate to the extent applicable. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counsel.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Nord Resources Corp), Asset Purchase Agreement (Nord Resources Corp)
Transactions at the Closing. (a) At the Closing, each of the following items shall be delivered:
(a) Seller shall deliver to Purchaser the followingBuyer shall:
(i) such bills of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and deliver to the Acquired AssetsSellers’ Representative, including without limitationfor the benefit of the Sellers, good, marketable the Closing Consideration by wire transfer of immediately available funds to an account designated in writing by the Sellers’ Representative to Buyer no later than two (insurable, subject to Permitted Encumbrances, as 2) Business Days prior to the Real Property), and valid title in and to all of the Acquired Assets owned by Seller free and clear of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all ContractsClosing Date;
(ii) a certificate of Seller with respect deliver to the matters described Escrow Agent cash, in Sections 8.1the amount of the Escrow Deposit, 8.2by wire transfer of immediately available funds, 8.5, 8.6, 8.12, and 8.18 hereof;as provided in the Escrow Agreement; and
(iii) a certificate of the Secretary deliver to Sellers all other agreements, documents, instruments or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 and 8.8 hereof;
(iv) the opinion of counsel in substantially the form of EXHIBIT A hereto (the "Seller Opinion");
(v) copies of the consents and waivers described in Section 8.5 hereof;
(vi) satisfactory evidence of the approvals described in Section 8.5 hereof;
(vii) certificates of existence of Seller, as of a date within twenty (20) days prior to the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 hereto;
(viii) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work required to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ix) a 1099 certificate to the extent applicable;
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicable;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiii) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller delivered by this Agreement Buyer at or prior to the Closing Date as Purchaser or its counsel may reasonably require. The documents and certificates pursuant to be delivered hereunder by or on behalf Section 8.3 of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counselthis Agreement.
(b) Purchaser shall deliver to Seller At the followingClosing, the Sellers shall:
(i) wire transfer(s) deliver to Buyer stock certificates evidencing the Shares, free and clear of all Encumbrances, accompanied by instruments of transfer duly executed in immediately available funds favor of Buyer, or if stock certificates are not then available, an indemnity, in amounts aggregating $17,338,500 a form reasonably acceptable to Seller or as directed by SellerBuyer, and $1,926,500 representing the Escrow Amount to the designated escrow agentfor any lost certificates in lieu thereof;
(ii) deliver to Buyer stock certificates evidencing the shares, free and clear of all Encumbrances, in the Group Companies (other than the Company), or if stock certificates are not then available, an instrument or instruments of assumption of the Assumed Liabilitiesindemnity, duly executed by Purchaserin a form reasonably acceptable to Buyer, and reasonably satisfactory for any lost certificates in form and substance to Seller and its counsellieu thereof;
(iii) deliver to Buyer in relation to each Seller, an irrevocable power of attorney, in a certificate form reasonably acceptable to Buyer, in favor of Purchaser with respect Buyer (or its nominee(s)) to enable the matters described in Sections 9.1 beneficiary (or its proxies) to exercise all voting and 9.2 hereofother rights attaching to Shares set out opposite its name on Exhibit A;
(iv) a certificate deliver to Buyer, in relation to each Seller, the original of the Secretary or Assistant Secretary any power of Purchaser with respect attorney under which any document to the matters described in Sections 9.3 and 9.6 hereofbe delivered to Buyer have been executed by it;
(v) deliver to Buyer all other agreements, documents, instruments or certificates required to be delivered by Sellers at or prior to the opinion Closing pursuant to Section 8.2 of counsel in substantially the form of EXHIBIT B hereto (the "Purchaser Opinion")this Agreement;
(vi) a certificate of existence of Purchaser, as of a date within twenty (20) days prior deliver to the Closing Dateapplicable Group Company the amount of the Sellers’ Payments due from such Seller, from the States by check or wire transfer of Delaware and Georgiaimmediately available funds;
(vii) such other evidence cause a meeting of the performance board of all covenants and satisfaction of all directors of the conditions required Company to approve and effect the following actions:
(A) the adoption of Purchaser a resolution to register the transfer of the Shares;
(B) the authorization of the issuance of one or more new certificates evidencing the Shares in the name of Buyer;
(C) the resignation of the directors and officers of the Group Companies with effect from the end of such board meeting;
(D) the nomination and appointment of the persons designated by this AgreementBuyer as directors and officers of each of the Group Companies (but not exceeding the maximum number of directors contained in the relevant company’s articles of association), which appointments shall take effect at or before the Closing Date, as Seller or its counsel may reasonably requireend of the board meeting; and
(E) the change of the address of the registered office of the Company and Bionostics Limited;
(viii) deliver a 1099 certificate executed by duly authorized officers of the Company and the Operating Subsidiary setting forth the Indebtedness of the Group Companies as of the Closing Date;
(ix) deliver evidence acceptable to Buyer of the addition of Buyer’s designees, and the removal of Sellers’ designees, as signatories with respect to each of the bank accounts set forth on Schedule 3.8;
(x) deliver to Buyer the statutory registers and minute books (written up to the extent Closing Date), the common seal (if any), certificate of incorporation and any certificates of incorporation on change of name of each UK Group Company;
(xi) deliver to Buyer each UK Group Company’s security code and authentication code for the Companies House WebFiling Service and the Protected Online Filing Scheme (if applicable. The ); and
(xii) deliver such other documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory relating to the Seller and its counseltransactions contemplated by this Agreement as Buyer may reasonably request.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Techne Corp /Mn/)
Transactions at the Closing. At the Closing, each of the following --------------------------- items shall be delivered:
(a) Seller shall deliver to Purchaser the following:
(i) such bills of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to to, vest in, and vest in Purchaser purchase all of Seller's right, title, and interests in and to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid title in and to all of the Acquired Assets owned by Seller Seller, in each case free and clear of all liensliens (subject only to Permitted Encumbrances), and goodall of Seller's right, insurable (as to the Real Property Leases) title and valid leasehold interests interest in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Contracts;
(ii) a certificate of Seller with respect to the matters described in Sections 8.1, 8.2, 8.5, 8.6, 8.128.13, and 8.18 8.21 hereof;
(iii) a certificate of the Secretary or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 8.8, 8.9 and 8.8 8.10 hereof;
(iv) the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to Seller, in substantially the form of EXHIBIT A Exhibit B hereto (the "Seller Opinion");
(v) copies of the consents and waivers described in Section 8.5 hereof;
(vi) satisfactory evidence of the approvals described in Section 8.5 hereof;
(vii) certificates of existence of Sellereach of Maxim and Image, as of a date within twenty (20) days prior to the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 heretoDelaware;
(viii) the Agreements of Estoppel, Consent and Waiver and the Landlords' Consent to Lease Assignment described in Section 8.18 hereof;
(ix) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid forfor (with respect to work in progress, to and through a date reasonably proximate to the Closing Date), and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ixx) a 1099 certificate to the extent applicable;
(xxi) a duly executed certificate stating that Seller each of Image and Maxim is a Georgia resident, or that Seller each of Image and Maxim is otherwise exempt from withholding under O.C.G.A. Section 48(S)48-7-128, as applicable;
(xixii) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xiixiii) recordable originals (to the extent possessed by Seller, and in the absence of any such originals, complete copies) of the Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiiixiv) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement at or prior to the Closing Date as Purchaser or its counsel may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel.
(b) Purchaser shall deliver to Seller the following:
(i) wire transfer(s) transfers in aggregate amount equal to the Estimated Purchase Price less the Escrow Amount in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed accounts designated by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agentas more specifically set forth in Section 3.5(a) hereof;
(ii) an instrument or instruments of assumption of the Assumed Liabilities, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereof9.2;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 9.3, 9.4 and 9.6 hereof;
(v) the opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to Purchaser, in substantially the form of EXHIBIT B Exhibit C hereto (the "Purchaser Opinion");
(vi) a certificate certificates of existence or certificates of good standing of Purchaser, as of a date within twenty (20) days prior to the Closing Date, from the States State of Delaware and Georgia;Delaware; and
(vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before the Closing Date, as Seller or its counsel may reasonably require; and
(viii) a 1099 certificate to the extent applicable. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counsel.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Maxim Group Inc /), Asset Purchase Agreement (Mohawk Industries Inc)
Transactions at the Closing. At the Closing, each of the following --------------------------- items shall be delivered:
(a) Seller shall deliver or make available to Purchaser the following:
(i) such bills of sale, motor vehicle titles, special or warranty deeds, quitclaim deeds, assignments, consents, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to to, vest in, and vest in Purchaser purchase all of Seller's right, title, and interests in and to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid insurable title in and to all of the Acquired Assets owned by Seller free and clear of all liensliens (subject only to Permitted Encumbrances), and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Contracts;
(ii) a certificate of Seller with respect to the matters described in Sections 8.1, 8.2, 8.5, 8.6, 8.128.13, and 8.18 8.21 hereof;
(iii) a certificate of the Secretary or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 8.8, 8.9 and 8.8 8.10 hereof;
(iv) the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, counsel to Seller, in substantially the form of EXHIBIT A Exhibit B hereto (the "Seller Opinion");
(v) copies of the consents and waivers described in Section 8.5 hereof;
(vi) satisfactory evidence of the approvals described in Section 8.5 hereof;
(vii) certificates of existence or certificates of good standing of Seller, as of a date within twenty (20) days a reasonable period of time prior to the Closing Date, from the State of Georgia Delaware and each jurisdiction listed in SCHEDULE Schedule 5.1.1 hereto;
(viii) the Agreements of Estoppel, Consent and Waiver and the Landlords' Consent to Lease Assignment described in Section 8.18 hereof;
(ix) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers affidavits and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ix) a 1099 certificate to the extent applicablerequest;
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicableall applicable laws;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amendedamended (the "Code");
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiii) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement at or prior to the Closing Date as Purchaser or its counsel may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel.
(b) Purchaser shall deliver to Seller the following:
(i) a wire transfer(s) transfer in the amount equal to the Estimated Purchase Price in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed an account designated by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agent;
(ii) an instrument or instruments of assumption of the Assumed LiabilitiesLiabilities in substantially the form of Exhibit C attached hereto (the "Assignment and Assumption Agreement"), duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereof9.2;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 9.3, 9.4 and 9.6 hereof;
(v) the opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to Purchaser, in substantially the form of EXHIBIT B Exhibit D hereto (the "Purchaser Opinion");
(vi) a certificate certificates of existence or certificates of good standing of Purchaser, as of a date within twenty (20) days a reasonable period of time prior to the Closing Date, from the States of Delaware and GeorgiaAlabama;
(vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before the Closing Date, as Seller or its counsel may reasonably require; and.
(viii) a 1099 certificate letter identifying those exceptions to title set forth on Schedule B to the extent applicablefinal title binders to be delivered at Closing which Purchaser has agreed to waive. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counsel.
Appears in 1 contract
Transactions at the Closing. At the Closing, each of the following items shall be delivered:
(a) Seller shall deliver to Purchaser the following:
(i) such bills of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), good and valid title in and to all of the Acquired Assets owned by Seller free and clear of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all ContractsAssets;
(ii) a the certificate of Seller with respect to the matters described in Sections 8.1, 8.2, 8.5, 8.6, 8.12, 10.1 and 8.18 10.2 hereof and the certificate of Seller with respect to the matters described in Section 10.10 hereof;
(iii) a the certificate of the Secretary or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 10.6 and 8.8 10.7 hereof;
(iv) the opinion of counsel to Seller in substantially the form of EXHIBIT A Exhibit E hereto (the "Seller Opinion");
(v) copies of the consents and waivers described in Section 8.5 10.5 hereof;
(vi) satisfactory evidence of the approvals described in Section 8.5 10.5 hereof;
(vii) certificates a certificate of existence and good standing of Seller, as of a date within twenty (20) days prior to the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 hereto;
(viii) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ix) a 1099 certificate to the extent applicable;
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicable;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property recordsSouth Carolina; and
(xiiiviii) such other evidence of the performance by Seller of all covenants and the satisfaction by Seller of all conditions required of Seller by this Agreement to be performed or satisfied by Seller at or prior to the Closing Date as Purchaser or its counsel may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel.
(b) Purchaser shall deliver to Seller the following:
(i) wire transfer(s) in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agentNote;
(ii) an instrument or instruments of assumption a check in the amount of the Assumed Liabilities, duly executed balance of the Purchase Price not paid by Purchaser, and reasonably satisfactory in form and substance to Seller and its counseldelivery of the Note;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 11.1 and 9.2 11.2 hereof;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 11.3 and 9.6 11.7 hereof;
(v) the opinion of counsel to Purchaser in substantially the form of EXHIBIT B Exhibit F hereto (the "Purchaser Opinion");
(vi) a certificate certificates of existence or certificates of good standing of Purchaser, as of a date within twenty (20) days prior to the Closing Date, from the States State of Delaware and Georgia;Delaware; and
(vii) such other evidence of the performance by Purchaser of all covenants and satisfaction by Purchaser of all of the conditions required of Purchaser by this Agreement, Agreement to be performed or satisfied by Purchaser at or before the Closing Date, as Seller or its counsel may reasonably require; and
(viii) a 1099 certificate to the extent applicable. The documents and certificates to be delivered to Seller hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counsel.
Appears in 1 contract
Transactions at the Closing. (a) At the Closing, each of the following items shall be delivered:
(a) Seller shall Principals and Companies will deliver to Purchaser ▇▇▇▇▇ and ▇▇▇▇▇ Indiana the following:
(i) such bills stock certificates evidencing a minimum of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents 90% of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid title in and to all of the Acquired Assets owned by Seller free and clear outstanding shares of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all capital stock of each of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all ContractsCompanies;
(ii) a certificate written resignations of Seller with respect to each director and officer of each of the matters described in Sections 8.1Companies, 8.2, 8.5, 8.6, 8.12, and 8.18 hereofeffective as of the Closing Date;
(iii) a certificate the original minute books, stock record books and corporate seals, if any, of the Secretary or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 and 8.8 hereofCompanies;
(iv) the opinion of counsel to the Companies and Principals in substantially the form of EXHIBIT A attached hereto (the "Seller Opinion"as Exhibit 2(a)(iv);; ----------------
(v) copies INDY's certificate of incorporation, as amended, certified by the Office of the consents Secretary of State of Indiana, and waivers described in Section 8.5 hereofa true and correct copy of the by-laws of INDY as certified by the Secretary of INDY;
(vi) satisfactory evidence a file marked copy of the approvals described in Section 8.5 hereofArticles of Merger pursuant to which TTI was merged with and into INDY, certified by the Secretary of INDY;
(vii) all other documents, certificates of existence of Seller, as of a date within twenty (20) days prior to the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 hereto;
(viii) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work instruments required to be performed on any of delivered by the Real Property Principals or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ix) a 1099 certificate to the extent applicable;
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicable;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiii) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement Companies at or prior to the Closing Date pursuant to this Agreement;
(viii) a copy of each written Company Contract (as Purchaser or its counsel may reasonably require. The documents defined below);
(ix) the Customer List (as defined below); and
(x) a certificate signed by the officers of the Companies and certificates to be delivered hereunder by or on behalf Principals which states the Companies' consolidated net worth as of Seller on the Closing Date shall be Date, determined in form accordance with GAAP, consistently applied, including any legal and substance reasonably satisfactory accounting expenses, related to Purchaser and its counselthe Merger or this Agreement.
(b) Purchaser shall At the Closing, ▇▇▇▇▇ and ▇▇▇▇▇ Indiana will deliver to Seller the Companies the following:
(i) wire transfer(s) in immediately available funds in amounts aggregating $17,338,500 stock certificates representing the Merger Consideration to Seller or as directed by Sellerbe issued pursuant to this Agreement to the stockholders of INDY who tender at the Closing certificates representing their shares of INDY Common Stock, and $1,926,500 such ▇▇▇▇▇ stock certificates shall be registered in the names of such stockholders as such names appear on Schedule 5.1(d); provided that stock certificates registered in the name of --------------- each CDF and KDA representing the Escrow Amount number of shares of ▇▇▇▇▇ Common Stock equal to Four Hundred Ten Thousand Five Hundred Dollars ($410,500) and Eighty-Nine Thousand Five Hundred Dollars ($89,500), respectively, of ▇▇▇▇▇ Common Stock, divided by the closing price of ▇▇▇▇▇ Common Stock used to calculate the Merger Consideration pursuant to Section 1.7 of this Agreement shall be redelivered to ▇▇▇▇▇ by CDF and KDA pursuant to the designated escrow agent;terms of the Escrow Agreement.
(ii) an instrument or instruments of assumption of the Assumed Liabilities, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;intentionally omitted
(iii) a certificate ▇▇▇▇▇ checks in the amount of Purchaser with respect the cash value of any fractional shares, payable to the matters described such stockholders in Sections 9.1 and 9.2 hereof;their names as they appear on Schedule 2(b)(iii); ------------------
(iv) a certificate the opinion of ▇▇▇▇▇ and ▇▇▇▇▇ Indiana's counsel in the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 and 9.6 hereof;form attached hereto as Exhibit 2(b)(iv); ----------------
(v) a stock option agreement to each of the opinion ten employees of counsel in substantially the form Companies for a number of EXHIBIT B hereto shares stipulated for those whose names and current salary are listed on Schedule 2(b)(v) to purchase an aggregate of Fifty ---------------- Thousand (50,000) shares of ▇▇▇▇▇ Common Stock under ▇▇▇▇▇'▇ 1997 Equity Incentive Plan, which agreements shall provide that the options provided for therein are exercisable at the closing price of the ▇▇▇▇▇ Common Stock on NASDAQ on the Closing Date and vest over a four-year period (the "Purchaser Opinion"option shares shall be allocated among the ten employees on said schedule pro rata based upon the relative salaries of said employees);; and
(vi) a certificate of existence of Purchaserall other documents, as of a date within twenty (20) days certificates, instruments or writings required to be delivered by ▇▇▇▇▇ or ▇▇▇▇▇ Indiana at or prior to the Closing Date, from the States of Delaware and Georgia;pursuant to this Agreement.
(viic) such other evidence of At the performance of all covenants and satisfaction of all of Closing, the conditions required of Purchaser by this AgreementPrincipals, at or before the Closing DateCompanies, ▇▇▇▇▇ and/or ▇▇▇▇▇ Indiana, as Seller or its counsel may reasonably requireapplicable, will exchange the following, which in each case shall be duly executed by the parties thereto:
(ii) a consulting and non-competition agreement between ▇▇▇▇▇ and KDA substantially in the form attached hereto as Exhibit 2(c)(ii) (the ---------------- "Consulting Agreement"); and
(viiiiii) a 1099 certificate to an escrow agreement among ▇▇▇▇▇, CDF, KDA, and First America Bank N.A., as escrow agent, (the extent applicable. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date "Escrow Agent"), which escrow agreement shall be substantially in the form and substance reasonably satisfactory to attached hereto as Exhibit 2(c)(iii) (the Seller and its counsel----------------- "Escrow Agreement").
Appears in 1 contract
Sources: Agreement and Plan of Merger (Carey International Inc)
Transactions at the Closing. At the Closing, each of the following items shall be delivered:
(a) Seller shall deliver to Purchaser the following:
(i) such bills of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to to, vest in, and vest in Purchaser purchase all of Seller's right, title, and interests in and to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid title in and to all of the Acquired Assets owned by Seller Seller, in each case free and clear of all liensliens (subject only to Permitted Encumbrances), and goodall of Seller's right, insurable (as to the Real Property Leases) title and valid leasehold interests interest in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Contracts;
(ii) a certificate of Seller with respect to the matters described in Sections 8.1, 8.2, 8.5, 8.6, 8.128.13, and 8.18 8.21 hereof;
(iii) a certificate of the Secretary or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 8.8, 8.9 and 8.8 8.10 hereof;
(iv) the opinion of Smit▇, ▇▇mb▇▇▇▇ & ▇uss▇▇▇ ▇▇▇, counsel to Seller, in substantially the form of EXHIBIT A Exhibit B hereto (the "Seller Opinion");
(v) copies of the consents and waivers described in Section 8.5 hereof;
(vi) satisfactory evidence of the approvals described in Section 8.5 hereof;
(vii) certificates of existence of Sellereach of Maxim and Image, as of a date within twenty (20) days prior to the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 heretoDelaware;
(viii) the Agreements of Estoppel, Consent and Waiver and the Landlords' Consent to Lease Assignment described in Section 8.18 hereof;
(ix) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid forfor (with respect to work in progress, to and through a date reasonably proximate to the Closing Date), and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ixx) a 1099 certificate to the extent applicable;
(xxi) a duly executed certificate stating that Seller each of Image and Maxim is a Georgia resident, or that Seller each of Image and Maxim is otherwise exempt from withholding under O.C.G.A. Section 48ss.48-7-128, as applicable;
(xixii) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xiixiii) recordable originals (to the extent possessed by Seller, and in the absence of any such originals, complete copies) of the Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiiixiv) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement at or prior to the Closing Date as Purchaser or its counsel may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel.
(b) Purchaser shall deliver to Seller the following:
(i) wire transfer(s) transfers in aggregate amount equal to the Estimated Purchase Price less the Escrow Amount in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed accounts designated by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agentas more specifically set forth in Section 3.5(a) hereof;
(ii) an instrument or instruments of assumption of the Assumed Liabilities, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereof9.2;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 9.3, 9.4 and 9.6 hereof;
(v) the opinion of Alst▇▇ & ▇ird LLP, counsel to Purchaser, in substantially the form of EXHIBIT B Exhibit C hereto (the "Purchaser Opinion");
(vi) a certificate certificates of existence or certificates of good standing of Purchaser, as of a date within twenty (20) days prior to the Closing Date, from the States State of Delaware and Georgia;Delaware; and
(vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before the Closing Date, as Seller or its counsel may reasonably require; and
(viii) a 1099 certificate to the extent applicable. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counsel.
Appears in 1 contract
Transactions at the Closing. (a) At the Closing, each of the following items shall be delivered:
(a) Seller shall MILN and MH will deliver to Purchaser ▇▇▇▇▇ and Acquisition the following:
(i) such bills of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid title in and to stock certificates evidencing all of the Acquired Assets owned by Seller free and clear of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all ContractsMILN Shares;
(ii) a certificate written resignations of Seller with respect to each director and officer of MILN, effective as of the matters described in Sections 8.1, 8.2, 8.5, 8.6, 8.12, and 8.18 hereofClosing Date;
(iii) a certificate the original minute books, stock record books and corporate seals, if any, of the Secretary or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 and 8.8 hereofMILN;
(iv) the opinion of counsel in substantially the form of EXHIBIT A hereto (the "Seller Opinion");
(v) copies of the consents all other documents, certificates and waivers described in Section 8.5 hereof;
(vi) satisfactory evidence of the approvals described in Section 8.5 hereof;
(vii) certificates of existence of Seller, as of a date within twenty (20) days prior to the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 hereto;
(viii) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work instruments required to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed delivered by MILN and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ix) a 1099 certificate to the extent applicable;
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicable;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiii) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement MH at or prior to the Closing Date pursuant to this Agreement;
(v) a copy of each written Company Contract; and
(vi) the underwriters' lock-up agreement in the form attached hereto as Purchaser or its counsel may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counselExhibit 1.8(a)(vi).
(b) Purchaser shall At the Closing, ▇▇▇▇▇ and Acquisition will deliver to Seller MILN and MH the following:
(i) wire transfer(sthe Promissory Note, duly executed by an authorized officer of ▇▇▇▇▇;
(ii) stock certificates evidencing the ▇▇▇▇▇ Shares (A) registered in immediately available funds the name of MH with respect to the number of ▇▇▇▇▇ Shares equal to $400,000 divided by the IPO Price and (B) registered in amounts aggregating the name of the Escrow Agent (as defined below) with respect to the number of ▇▇▇▇▇ Shares equal to $17,338,500 to Seller or as directed 2,000,000 divided by Sellerthe IPO Price, and $1,926,500 a ▇▇▇▇▇ check payable to MH representing the Escrow Amount payment for any fractional share of ▇▇▇▇▇ Common Stock pursuant to Section 1.9(c) hereof;
(iii) all other documents, certificates, instruments or writings required to be delivered by ▇▇▇▇▇ and Acquisition at or prior to the designated escrow agentClosing pursuant to this Agreement;
(iv) a "Section 368(a) Certificate" which shall be reasonably satisfactory in form and content to counsel to each of ▇▇▇▇▇ and MH in the form attached hereto as Exhibit 1.8(b)(iv); and
(v) a certified check payable to or wire transfer to MH representing any Additional Merger Consideration pursuant to Section 1.2.
(c) At the Closing, ▇▇▇▇, ▇▇, EM, AJH, LCH and/or ▇▇▇▇▇, as applicable, will exchange the following, which in each case shall be duly executed by the parties thereto:
(i) an employment agreement between MILN and MH substantially in the form attached hereto as Exhibit 1.8(c)(i) (the "MH Employment Agreement");
(ii) an instrument or instruments of assumption of employment agreement between MILN and EM substantially in the Assumed Liabilities, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counselattached hereto as Exhibit 1.8(c)(ii) (the "EM Employment Agreement");
(iii) a certificate of Purchaser with respect to registration rights agreement among ▇▇▇▇▇ and MH substatially in the matters described in Sections 9.1 and 9.2 hereofform attached hereto as Exhibit 1.8(c)(iii) (the "Registration Rights Agreement");
(iv) an escrow agreement among ▇▇▇▇▇, ▇▇, AJH, LCH and a certificate bank, as escrow agent, to be selected by mutual agreement of the Secretary or Assistant Secretary of Purchaser with respect to parties (the matters described "Escrow Agent"), which escrow agreement shall be substantially in Sections 9.3 and 9.6 hereofthe form attached hereto as Exhibit 1.8(c)(iv);
(v) the opinion of counsel an option agreement among ▇▇▇▇▇, MILN and AJH substantially in substantially the form of EXHIBIT B attached hereto as Exhibit 1.8(c)(v) (the "Purchaser OpinionOption Agreement");; and
(vi) a certificate of existence of Purchaseran indemnification agreement among Carey, MILN, AJH, LCH and MH substantially in the form attached hereto as of a date within twenty Exhibit 1.8(c)(vi) (20) days prior to the Closing Date, from the States of Delaware and Georgia;
(vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this "Indemnification Agreement, at or before the Closing Date, as Seller or its counsel may reasonably require; and
(viii) a 1099 certificate to the extent applicable. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counsel").
Appears in 1 contract
Transactions at the Closing. At the Closing, each of the following items shall be deliveredoccur:
(a) Seller The Purchaser shall deliver to Purchaser make the followingfollowing deliveries:
(i) such bills payment of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and an amount equal to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid title in and to all Cash Payment by wire transfer of the Acquired Assets owned by Seller free and clear of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Contractsimmediately available funds;
(ii) a Pledge Agreement in substantially the form of Exhibit B attached hereto for each Seller (the “Pledge Agreements”) as collateral security for the Notes;
(iii) duly executed Notes;
(iv) certificate of Seller with respect an officer of the Purchaser as to the matters described incumbency of the officer authorized to execute this Agreement and each other document to which it is a party; and
(v) a certificate of an officer of the Purchaser certifying that the conditions to the Sellers’ obligations hereunder set forth in Sections 8.1Section 7.3 have been satisfied.
(b) The Company and the Sellers shall make the following deliveries to the Purchaser:
(i) stock certificates evidencing the Shares, 8.2accompanied by a stock power or other instruments of transfer duly executed;
(ii) duly executed Non-Compete and Non-Solicitation Agreements for each Seller, 8.5, 8.6, 8.12, and 8.18 hereofin substantially the form of Exhibit C attached hereto;
(iii) a certificate copy of the Secretary or Assistant Secretary Organizational Documents of the General Partner Company and each of Seller with respect to the matters described in Sections 8.7 and 8.8 hereof;
(iv) the opinion of counsel in substantially the form of EXHIBIT A hereto (the "Seller Opinion");
(v) copies of the consents and waivers described in Section 8.5 hereof;
(vi) satisfactory evidence of the approvals described in Section 8.5 hereof;
(vii) certificates of existence of Sellerits Subsidiaries, each as of a date within twenty (20) days prior to amended through the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 hereto;
(viii) affidavit(s) of title stating that (a) there are no parties in possession of any certified by an authorized officer of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ix) a 1099 certificate to the extent applicable;
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicable;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiii) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement at or prior to the Closing Date as Purchaser or its counsel may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel.
(b) Purchaser shall deliver to Seller the following:
(i) wire transfer(s) in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agent;
(ii) an instrument or instruments of assumption of the Assumed Liabilities, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereofCompany;
(iv) a certificate of an authorized officer of the Secretary or Assistant Secretary of Purchaser with respect Company as to the matters described in Sections 9.3 incumbency of its officers authorized to execute this Agreement and 9.6 hereofeach other document to be executed at the Closing on behalf of the Company;
(v) a certificate dated not later than ten (10) Business Days prior to the opinion Closing Date from the Secretary of counsel in substantially State of the form state of EXHIBIT B hereto (incorporation of the "Purchaser Opinion")Company and each of its Subsidiaries, and each state where each entity is duly registered as a foreign corporation as to the good standing of the Company and each of its Subsidiaries;
(vi) a certificate the consents required to be obtained from third parties to allow the completion of existence the transactions contemplated hereby set forth on Schedule 1.4(b)(vi), which shall include all of Purchaser, as of a date within twenty the consents set forth on Schedule 3.4 (20) days prior to the Closing Date, from the States of Delaware and Georgia“Required Consents”);
(vii) such other evidence resignation letters from each of the performance of all covenants directors and satisfaction of all officers of the conditions required Company and each of Purchaser by this Agreementits Subsidiaries, at or before effective immediately as of the Closing Date, as Seller or its counsel may reasonably require; andClosing;
(viii) a 1099 certificate of an authorized officer of the Company certifying in such capacity that the conditions to the extent applicable. The documents and certificates to be delivered Purchaser’s obligations hereunder by or on behalf of the Purchaser on the Closing Date shall be set forth in form and substance reasonably satisfactory to the Seller and its counsel.Sections 7.2(a), 7.2(b),
Appears in 1 contract
Transactions at the Closing. (a) At the Closing, each of Sellers will deliver to Purchasers the following items shall be delivered:
(a) Seller shall deliver to Purchaser the followingitems:
(i) such bills powers of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory attorney to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and to represent each Seller at the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid title in and to all execution of the Acquired Assets owned by Seller free and clear deed of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Contractstransfer before a Dutch civil law notary;
(ii) a certificate certificate, dated as of the Closing Date, executed by duly authorized representatives of each Seller with respect to containing true and accurate copies of the matters described resolutions duly adopted by the board of directors (or equivalent governing body) of each Seller approving and authorizing this Agreement and the Transaction and certifying that such resolutions have not been rescinded, revoked, modified or otherwise affected and remain in Sections 8.1, 8.2, 8.5, 8.6, 8.12, full force and 8.18 hereofeffect as of the Closing;
(iii) a certificate of the Secretary or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 and 8.8 hereof;
(iv) the opinion of counsel in substantially the form of EXHIBIT A hereto (the "Seller Opinion");
(v) copies of the consents and waivers described in Section 8.5 hereof;
(vi) satisfactory evidence of the approvals described in Section 8.5 hereof;
(vii) certificates of existence of Sellercertificate, dated as of a date within twenty (20) days prior to the Closing Date, from the State executed by duly authorized representatives of Georgia each Seller, containing a true and each jurisdiction listed in SCHEDULE 5.1.1 hereto;
(viii) affidavit(s) of title stating that (a) there are no parties in possession of any accurate copy of the Real Property or Leased Real Property other than Seller articles of association (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rightsequivalent organizational documents), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ix) a 1099 certificate to the extent applicable;
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicable;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
, of each Seller and certifying that such articles of association (xii) recordable originals of any Real Property Leasesor equivalent organizational documents), or recordable short forms thereofas amended, which have not previously been recorded amended or modified and remain in the appropriate real property records; and
(xiii) such other evidence full force and effect as of the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement at or prior to the Closing Date as Purchaser or its counsel may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel.
(b) Purchaser shall deliver to Seller the following:
(i) wire transfer(s) in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agent;
(ii) an instrument or instruments of assumption of the Assumed Liabilities, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereofClosing;
(iv) a certificate of incumbency of Sellers, dated as of the Secretary or Assistant Secretary Closing Date, executed by duly authorized representatives of Purchaser with respect each Seller listing the Persons authorized to execute this Agreement on behalf of Sellers, and certifying as to the matters described authority of each such Person to execute the Ancillary Agreements and other agreements, documents and instruments on behalf of each Seller in Sections 9.3 and 9.6 hereofconnection with the consummation of the Transaction;
(v) the opinion written resignations, effective as of counsel the Closing, of each DDR Director; and
(vi) to the extent not previously delivered, the documents required to be delivered by Sellers set forth in substantially Article 7.
(b) At the form Closing, Purchasers will deliver to Sellers the following items:
(i) (A) by wire transfer of EXHIBIT B hereto immediately available funds to one or more accounts designated in writing at least two Business Days prior to the Closing Date by Sellers, as set forth in Section 1.4 above, an amount in cash in United States Dollars equal to the Closing Payment from Purchasers and (B) evidence reasonably satisfactory to Sellers that Purchasers have paid an amount in cash equal to the "Purchaser Opinion"▇▇▇▇▇▇▇ Money to Sellers in accordance with Section 1.3(a);
(viii) powers of attorney to represent each Purchaser at the execution of the deed of transfer before a Dutch civil law notary;
(iii) a certificate, dated as of the Closing Date, executed by ▇▇. ▇▇▇▇ and a duly authorized representative of Arosa and Cura containing a true and accurate copy of the resolutions duly adopted by the shareholders of Arosa and Cura approving and authorizing this Agreement and the Transaction and certifying that such resolutions have not been rescinded, revoked, modified or otherwise affected and remain in full force and effect as of the Closing;
(iv) a certificate of existence incumbency of PurchaserArosa and Cura, dated as of a date within twenty (20) days prior to the Closing Date, from executed by ▇▇. ▇▇▇▇ and a duly authorized representative of Arosa and Cura listing the States Persons authorized to execute this Agreement on behalf of Delaware each Purchaser, and Georgiacertifying as to the authority of each such Person to execute the Ancillary Agreements and other agreements, documents and instruments on behalf of each Purchaser in connection with the consummation of the Transaction;
(viiv) such other evidence a certificate, dated as of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before the Closing Date, executed by ▇▇. ▇▇▇▇ and a duly authorized representative of Arosa and Cura, containing a true and accurate copy of the articles of association (or equivalent organizational documents), as Seller amended, of Arosa and Cura and certifying that such articles of association (or its counsel may reasonably requireequivalent organizational documents), as amended, have not been amended or modified and remain in full force and effect as of the Closing; and
(viiivi) a 1099 certificate to the extent applicable. The not previously delivered, the documents and certificates required to be delivered hereunder by or on behalf Purchasers set forth in Article 8.
(c) At the Closing, Sellers and Purchasers will execute a deed of transfer of the Purchaser Purchased Shares before a Dutch civil law notary based on the Closing Date shall be in form powers of attorney delivered under Section 2.2(a)(i) and substance reasonably satisfactory to the Seller and its counselSection 2.2(b)(ii).
Appears in 1 contract
Sources: Share Purchase Agreement (DDR Corp)
Transactions at the Closing. At or prior to the Closing, each of the following items shall be delivered:
(a) Seller shall deliver to Purchaser the following:
(i) such bills of sale, motor vehicle titles, special or limited warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to to, vest in, and vest in Purchaser purchase all of Seller's right, title, and interests in and to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid insurable title in and to all of the Acquired Assets owned by Seller Seller, in each case, free and clear of all liensliens (subject only to Permitted Encumbrances), and good, insurable (as to the Real Property Leases) good and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Assigned Contracts;
(ii) a certificate of Seller with respect to the matters described in Sections 8.1, 8.2, 8.5, 8.6, 8.128.13, and 8.18 8.19 hereof;
(iii) a certificate of the Secretary or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 8.8 and 8.8 8.9 hereof;
(iv) the opinion of counsel in substantially the form of EXHIBIT A hereto (the "Seller Opinion");
(v) copies of the consents and waivers described in Section 8.5 hereof;
(viv) satisfactory evidence of the approvals described in Section 8.5 hereof;
(viivi) certificates of existence or certificates of good standing of Seller, Shareholder and General Cable Technologies Corp. as of a date within twenty thirty (2030) days prior to the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 heretoDelaware;
(vii) [INTENTIONALLY OMITTED]
(viii) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ix) a 1099 certificate to the extent applicable[INTENTIONALLY OMITTED];
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48O.C.G.A.ss.48-7-128, as applicable;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xii) recordable originals [INTENTIONALLY OMITTED]
(xiii) such evidence as Purchaser's title company shall reasonably require as to the authority of any Real Property Leasesthe parties acting on behalf of Seller to enter into this Agreement and to discharge the obligations of Seller pursuant hereto;
(xiv) if Seller's option to purchase the CT Inventory is exercised, or recordable short forms thereof, which have not previously been recorded a wire transfer in an amount equal to 95% of the appropriate real property recordsClosing CT Inventory Purchase Price in immediately available funds to an account designated by Purchaser; and
(xiiixv) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement at or prior to the Closing Date as Purchaser Purchaser, its counsel or its counsel title company may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel.
(b) Purchaser shall deliver to Seller the following:
(i) a wire transfer(stransfer in an amount equal to the Fixed Purchase Price (which may be satisfied in part, at Purchaser's option, by Purchaser, Seller and Shareholder causing the Escrow Amount (as defined in the Escrow Agreement) to be paid out to Seller) plus the Closing Inventory Purchase Price in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed an account designated by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agent;
(ii) an instrument or instruments of assumption of the Assumed Liabilities, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereof9.2;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 9.3, 9.4 and 9.6 hereof;
(v) the opinion of counsel in substantially the form of EXHIBIT B hereto (the "Purchaser Opinion");
(vi) a certificate certificates of existence or certificates of good standing of Purchaser, as of a date within twenty thirty (2030) days prior to the Closing Date, from the States State of Delaware and Georgia;
(vi) a bill of sale, in form reasonably satisfactory to Seller and Seller's ▇▇▇▇sel, as shall be necessary and effective to transfer and assign to, vest in, and purchase all of Purchaser's right, title, and interests in and to the CT Inventory, free and clear of all liens other than Permitted Encumbrances; and
(vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before the Closing Date, as Seller or its counsel may reasonably require; and
(viii) a 1099 certificate to the extent applicable. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counsel.
Appears in 1 contract
Transactions at the Closing. At the Closing, each of the Company shall deliver to Lenders the following items documents and certificates (unless otherwise waived in writing by the Lead Lender, in its sole and absolute discretion, which waiver shall be delivered:binding on all Lenders):
(a) Seller shall deliver to Purchaser a true and correct copy of the following:
resolutions of the Board of Directors of the Company (ithe “Board”) such bills and the shareholders of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, the Company approving this Agreement and other good the transactions contemplated herein and sufficient instruments in the ancillary agreements and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid title in and to all of the Acquired Assets owned by Seller free and clear of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Contracts;
(ii) a certificate of Seller with respect to the matters described in Sections 8.1, 8.2, 8.5, 8.6, 8.12, and 8.18 hereof;
(iii) a certificate of the Secretary or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 and 8.8 hereof;
(iv) the opinion of counsel in substantially the form of EXHIBIT A hereto (the "Seller Opinion");
(v) copies of the consents and waivers described in Section 8.5 hereof;
(vi) satisfactory evidence of the approvals described in Section 8.5 hereof;
(vii) certificates of existence of Seller, as of a date within twenty (20) days prior to the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 attached hereto;
(viiib) affidavit(sto each Lender, a Warrant in the form attached hereto as Exhibit 3.2(b) (each, a “Warrant” and collectively, the “Warrants”), in accordance with the provisions of title stating that (a) there are this Agreement, for no parties in possession of any additional consideration, and the approval of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights issuance and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any delivery of the Real Property or Leased Real Property within one hundred (100) days shares upon the exercise of the date of such affidavit(s)Warrant, or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to accordance with the terms of this Agreement), and rights or claims the reservation, at all times, of real estate brokersa sufficient number of Company shares underlying said Warrant and issuable upon the exercise of the Warrants;
(ixc) the execution of a 1099 certificate second ranking (subordinated to Discount Capital) floating charge debenture between the extent applicableCompany and the Lead Lender, in the form attached hereto as Exhibit 3.2(c) (the “Floating Charge Debenture”);
(xd) the execution of a duly executed certificate stating that Seller is a Georgia residentsecond ranking (subordinated to Discount Capital) fixed and floating charge debenture between the Company and the Lead Lender, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, in the form attached hereto as applicableExhibit 3.2(d) (the “Accounts Pledge Debenture”);
(xie) the execution of a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposessecond ranking (subordinated to Discount Capital) fixed charge debenture between the Company and the Lead Lender, in accordance the form attached hereto as Exhibit 3.2(e) (the “IP Pledge Debenture”, and together with Section 1445 the Floating Charge Debenture and Section 897 of the Internal Revenue Code of 1986Accounts Pledge Debenture, as amendedthe “Israeli Security Documents”);
(xiif) recordable originals the execution of any Real Property Leasesa second ranking (subordinated to Discount Capital) US intellectual property security agreement between the Company and the Lead Lender, or recordable short forms thereof, which have not previously been recorded in the appropriate real property recordsform attached hereto as Exhibit 3.2(f) (the “IP Security Agreement”, and together with the Israeli Security Documents, the “Company Charge Agreements”);
(g) each of the Israeli Security Documents duly executed by the Company, together with applicable 10-forms for the registration of the Israeli Security Documents with the Israeli Companies’ Registrar, (iii) in relation to the IP Pledge Debenture – applicable registration form for the registration thereof with the Israeli Patents Office, and (iv) the IIA Approval (as defined below), in each case of (i) through (iii) above – in forms attached hereto (where attached) or otherwise reasonably acceptable to Lead Lender. The Company shall file the Israeli Security Documents for registration with the Israeli Companies’ Registrar as soon as practicable following the Closing and no later than within 21 days therefrom, subject to receipt from all Lenders the relevant documentation required for such registration according to applicable law and regulation;
(h) copy of the application made by the Company to the IIA on November 6, 2022, requesting its approval for the creation of the Liens created under the Security Documents over all IIA-Funded Know-How (the “IIA Approval”);
(i) an opinion of counsel to the Company, in the form attached hereto as Exhibit 3.2(j);
(j) with respect to Lead Lender, a Nondiscrimination Certificate and a Certificate regarding Connecticut Presence each in form satisfactory to Lead Lender; and
(xiiik) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement at or prior to the a Closing Date as Purchaser or its counsel may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be Certificate in form and substance reasonably satisfactory acceptable to Purchaser and its counsel.
(b) Purchaser shall deliver to Seller the following:
(i) wire transfer(s) in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agent;
(ii) an instrument or instruments of assumption of the Assumed LiabilitiesLead Lender, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereof;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 and 9.6 hereof;
(v) the opinion of counsel in substantially the form of EXHIBIT B hereto (the "Purchaser Opinion");
(vi) a certificate of existence of Purchaser, as of a date within twenty (20) days prior to the Closing Date, from the States of Delaware and Georgia;
(vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before the Closing Date, as Seller or its counsel may reasonably require; and
(viii) a 1099 certificate to the extent applicable. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counselCompany’s Chief Executive Officer and/or Chief Financial Officer.
Appears in 1 contract
Sources: Financing Agreement (Holisto Ltd.)
Transactions at the Closing. At the Closing, each of the following items shall be delivereddelivered or effected:
(a) Seller shall deliver either deliver, or cause to be delivered, to Purchaser or, with respect to items (v)-(vi), made available at the premises of CI, the following:
(i) such bills duly executed transfers of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents the Shares in favour of conveyance and transfer, Purchaser (or as it will direct) together with all relevant share certificates (or in form reasonably the case of any lost certificate an indemnity satisfactory to Purchaser in relation to it) and its counsel, together also with such waivers and consents as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all are required for the consummation of Seller's right, title, and interests in the transactions contemplated by this Agreement and to enable Purchaser to be registered as the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid title in and to all holder of the Acquired Assets owned by Seller free and clear of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all ContractsShares;
(ii) a certificate written resignations from all directors and the secretary (with the exception of Seller with respect to ▇▇▇▇▇ ▇. ▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) of each Company and Subsidiary other than West Yorkshire in substantially the matters described in Sections 8.1, 8.2, 8.5, 8.6, 8.12, and 8.18 hereofform of Exhibit A;
(iii) a certificate the written resignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as auditors of each Company and Subsidiary other than West Yorkshire accompanied by the statement referred to in section 392 of the Secretary or Assistant Secretary Companies ▇▇▇ ▇▇▇▇ in substantially the form of the General Partner of Seller with respect to the matters described in Sections 8.7 and 8.8 hereofExhibit B;
(iv) the opinion certificate of counsel incorporation, any certificate(s) of incorporation on change of name, the common seal and the statutory books and registers (all entered up to date) of each Company and Subsidiary (other than West Yorkshire);
(v) all deeds and documents relating to the title of any Companies or any Subsidiary (other than West Yorkshire to the Property);
(vi) all papers, books, records, keys, credit cards and other property (if any) of each Company and Subsidiary which are in the possession or under the control of Seller or any other person who resigns as an officer of either Company or any Subsidiary in accordance with Section 2.2(a)(ii);
(vii) duly executed powers of attorney in substantially the form of EXHIBIT A Exhibit C;
(viii) the opinion of Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to ▇▇▇▇ and the Seller, in substantially the form of Exhibit D-1 hereto, and the opinion of Garretts, special counsel to ▇▇▇▇ and the Seller, in substantially the form of Exhibit D-2 hereto (collectively, the "Seller Opinion");
(vix) copies of the consents and waivers described in Section 8.5 hereof;
(vi) satisfactory evidence of the approvals described in Section 8.5 hereof;
(vii) certificates of existence of Seller, as of a date within twenty (20) days prior to the Closing Date, confirmation from the State Panel on Takeovers and Mergers that the transactions contemplated by this Agreement do not fall within the ambit of Georgia The City Code on Takeovers and each jurisdiction listed in SCHEDULE 5.1.1 hereto;
(viii) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ix) a 1099 certificate to the extent applicableMergers;
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicable;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiii) such other evidence as Purchaser or its counsel may reasonably require of the performance of all covenants and agreements of the satisfaction of all conditions Seller hereunder which are required of Seller by this Agreement at the terms hereof to be performed on or prior to the Closing Date as Purchaser or its counsel may reasonably requireof this Agreement. The documents and certificates to be delivered hereunder by or on behalf of the Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel.
(b) ▇▇▇▇ shall execute and deliver to CI the Supply Agreement substantially in the form of Exhibit E hereto (the "Supply Agreement"), the Personnel Transition Agreement substantially in the form of Exhibit F (the "Personnel Transition Agreement") and the Technology License Agreement substantially in the form of Exhibit G hereto (the "License Agreement").
(c) Purchaser shall deliver to ▇▇▇▇ and the Seller the following:
(i) wire transfer(s) in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agent;
(ii) an instrument or instruments of assumption of the Assumed Liabilities, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereof;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 and 9.6 hereof;
(v) the opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to Purchaser, in substantially the form of EXHIBIT B Exhibit H-1 hereto, and the opinion of Eversheds, special counsel to Purchaser substantially in the form of Exhibit H-2 hereto (collectively, the "Purchaser Opinion");; and
(vi) a certificate of existence of Purchaser, as of a date within twenty (20) days prior to the Closing Date, from the States of Delaware and Georgia;
(viiii) such other evidence as ▇▇▇▇ and the Seller or their counsel may reasonably require of the performance of all covenants and satisfaction of all of the conditions required agreements of Purchaser hereunder which are required by this Agreement, at the terms hereof to be performed on or before the Closing Date, as Seller or its counsel may reasonably require; and
(viii) a 1099 certificate prior to the extent applicableClosing. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to ▇▇▇▇, the Seller and its their counsel.
(d) Seller and ▇▇▇▇ shall cause CI to execute and deliver the Supply Agreement, the Personnel Transition Agreement and the License Agreement.
(e) Seller and ▇▇▇▇ shall cause CI to execute and deliver to ▇▇▇▇ the assignment in respect of the GHL Loan Agreement substantially in the form of Exhibit I (the "Assignment"), the notice of resignation of CI as Security Trustee in respect of the GHL Security Interests substantially in the form of Exhibit J, the deed of adherence in respect of the GHL Security Trust Deed substantially in the form of Exhibit K (the "Deed of Adherence"), the substituting certificate substantially in the form of Exhibit L substituting ▇▇▇▇ as Security Trustee in place of CI for the purposes of the GHL Security Interests (the "Substitution Certificate), and the transfer of the GHL Loan Notes in favor of ▇▇▇▇ substantially in the form of Exhibit M (the "Loan Note Transfer").
(f) Seller and ▇▇▇▇ shall:
(i) repay, and shall procure that any company ("controlled company") of which Seller and ▇▇▇▇ has control (as defined in section 840 Income and Corporation Taxes Act 1988) will repay, all amounts owed by it to any Company or Subsidiary, whether due for payment or not;
(ii) deliver to Purchaser a deed in substantially the form of Exhibit N acknowledging that, except for amounts payable as provided in Section 2.5, neither Seller nor ▇▇▇▇ nor any such controlled company has any claim against any Company or Subsidiary and that, except for the Supply Agreement, the Guarantees not released as of the date hereof, the Personnel Transition Agreement and the License Agreement, there is no agreement or arrangement under which any Company or Subsidiary has any actual, contingent or prospective obligation (including, but not limited to, any obligation under any guarantee entered into by any Company or Subsidiary to or in respect of any of them); and
(iii) in respect of any such agreement or arrangement as is referred to in Section 2.2(f)(ii) which previously existed deliver to Purchaser evidence of the release or termination of it in form satisfactory to Purchaser.
(g) Seller will procure that duly convened meetings are held at which:
(i) the transfers referred to in Section 2.2(a)(i) (subject to stamping if not previously effected) are approved for registration in the books of the relevant Company;
(ii) the persons nominated by Purchaser shall be appointed as additional directors of the Companies and Subsidiaries specified (subject to any maximum number of directors imposed by the relevant articles of association), and any person designated by Purchaser shall be appointed as secretary of the Companies and Subsidiaries specified, and cause the resignations referred to in Section 2.2(a)(ii) shall be accepted;
(iii) all existing instructions to the bankers of each Company and Subsidiary (other than West Yorkshire) shall be revoked and new instructions given to such bankers as Purchaser may nominate, in such form as Purchaser directs; and
(iv) the resignations referred to in Section 2.2(a)(iii) shall be accepted and Deloitte & Touche shall be appointed as auditors of each Company and Subsidiary (other than West Yorkshire).
Appears in 1 contract
Transactions at the Closing. (a) At the Closing, each of the following items shall be delivered:
(a) Seller shall deliver to Purchaser Buyer the following:
: (i) such bills assignments of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, the Licenses and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and pertinent authorizations transferring the same to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), Buyer in customary form and valid title in and to all of the Acquired Assets owned by Seller free and clear of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Contracts;
substance; (ii) a certificate of Seller with respect to the matters described in certificates contemplated by Sections 8.17.2, 8.2, 8.5, 8.6, 8.12, 7.3 and 8.18 hereof;
the affidavit contemplated by Section 3.22; (iii) a copy of the resolutions of the board of directors and stockholders of Seller authorizing the execution, delivery and performance of this Agreement, the Time Brokerage Agreement and the Escrow Agreement, and the consummation of the transactions contemplated hereby and thereby, together with a certificate of the Secretary or Assistant Secretary of Seller, dated as of the General Partner Closing Date, that such resolutions were duly adopted and are in full force and effect; (iv) a bill of Seller with respect sale an▇ ▇▇l other appropriate documents and instruments of transfer assigning to Buyer good and marketable title to the matters described in Sections 8.7 Station Assets free and 8.8 hereof;
clear of any security interests, mortgages, liens, pledges, attachments, conditional sales contracts, claims, charges or encumbrances of any kind whatsoever; (ivv) written consents (including satisfactory estoppel language as to the absence of defaults and the completeness of documentation) of the respective lessors, landowners, and any other persons or entities whose consents may be required to permit Seller to assign or Buyer to assume the liabilities, contracts, leases, licenses, understandings and agreements constituting the Assumed Contracts; (vi) evidence satisfactory to Buyer's counsel that no financing statements or other liens or encumbrances are outstanding on the Station Assets; (vii) all files, records, logs, and program materials relating to the Station and the Station Assets; (viii) the opinion of general counsel in substantially the form of EXHIBIT A hereto (the "Seller Opinion");
(v) copies of the consents and waivers described in Section 8.5 hereof;
(vi) satisfactory evidence of the approvals described in Section 8.5 hereof;
(vii) certificates of existence of FCC counsel for Seller, as of a date within twenty (20) days prior to the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 hereto;
(viii) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ix) a 1099 certificate to the extent applicable;
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicable;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiii) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement at or prior to the Closing Date as Purchaser or its counsel may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel.
(b) Purchaser shall deliver to Seller the following:
(i) wire transfer(s) in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agent;
(ii) an instrument or instruments of assumption of the Assumed Liabilities, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereof;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 and 9.6 hereof;
(v) the opinion of counsel in substantially the form of EXHIBIT B hereto (the "Purchaser Opinion");
(vi) a certificate of existence of Purchaser, as of a date within twenty (20) days prior to the Closing Date, from the States of Delaware and Georgia;
(vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before dated the Closing Date, as Seller or its counsel may reasonably requiredescribed in Section 7.5; and
(viiiix) assignments to Buyer of all the Assumed Contracts (including assignment of the Real Estate Contracts in recordable form); and (x) a 1099 certificate copy of the lease or memorandum of lease pertaining to the extent applicable. The documents transmitter site (and certificates to be delivered hereunder all amendments thereto) executed by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counselthe landlord and duly recorded with the recorder's office in the jurisdiction where the property is located.
Appears in 1 contract
Sources: Asset Purchase Agreement (Osborn Communications Corp /De/)
Transactions at the Closing. (a) At the Closing, each of the following items shall be delivered:
(a) Seller shall deliver to Purchaser Buyer the following:
(i) such bills assignments of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, the Licenses and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and pertinent authorizations transferring the same to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), Buyer in customary form and valid title in and to all of the Acquired Assets owned by Seller free and clear of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Contractssubstance;
(ii) a certificate of Seller with respect to the matters described in certificates contemplated by Sections 8.1, 8.2, 8.5, 8.6, 8.12, 7.2 and 8.18 hereof7.3;
(iii) a copy of the resolutions of the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and the agreements and documents listed in Section 2.2 of the Disclosure Schedule (the "Ancillary Agreements"), and the consummation of the transactions contemplated hereby and thereby, together with a certificate of the Secretary or Assistant Secretary of Seller, dated as of the General Partner of Seller with respect to the matters described Closing Date, that such resolutions were duly adopted and are in Sections 8.7 full force and 8.8 hereofeffect;
(iv) a b▇▇▇ of sale and all other appropriate documents and instruments assigning to Buyer good and marketable title to the opinion Station Assets free and clear of counsel in substantially the form any security interests, mortgages, liens, pledges, attachments, conditional sales contracts, claims, charges or encumbrances of EXHIBIT A hereto (the "Seller Opinion")any kind whatsoever;
(v) copies of the consents and waivers described in Section 8.5 hereofAncillary Agreements, duly executed by Seller as appropriate;
(vi) satisfactory evidence written consents of the approvals described respective lessors, landowners, and any other persons or entities whose consents may be required to permit Buyer to assume the liabilities, contracts, leases, licenses, understandings and agreements constituting the Assumed Contracts provided that Seller shall not be required to deliver any written consents referred to in Section 8.5 hereof;3.7(b) herein to the extent Seller has used reasonable efforts to obtain such consents.
(vii) certificates of existence of Seller, as of a date within twenty (20) days prior evidence satisfactory to Buyer's counsel that no financing statements are outstanding on the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 heretoStation Assets;
(viii) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights)all files, records, logs, and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant program materials relating to the terms of this Agreement), and rights or claims of real estate brokersStation;
(ix) a 1099 copy of the resolution of the board of directors of O▇▇▇▇▇ Communications Corporation ("OCC") authorizing the execution, delivery and performance by OCC of an indemnification agreement contained in Article IX hereof, together with a certificate to of OCC dated as of the extent applicableClosing Date, that such resolutions were duly adopted and are in full force and effect;
(x) a duly executed certificate stating that Seller is a Georgia residentthe opinion of counsel for Seller, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128dated the Closing Date, as applicabledescribed in Section 7.8;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 assignments to Buyer of all the Internal Revenue Code of 1986, as amended;Assumed Contracts; and
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiii) such other evidence of the performance of all covenants documents and the satisfaction of all conditions required of Seller by this Agreement at or prior to the Closing Date instruments as Purchaser or its counsel Buyer may reasonably require. The documents and certificates request to be delivered hereunder by or on behalf of Seller on consummate the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counseltransactions contemplated hereby.
(b) Purchaser At the Closing, Buyer shall deliver or cause to be delivered to Seller the following:
(i) wire transfer(s) in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agentPurchase Price;
(ii) an instrument or instruments of assumption a copy of the Assumed Liabilitiesresolutions of the board of directors of Buyer authorizing the execution, duly executed by Purchaserdelivery and performance of this Agreement and the Ancillary Agreements, and reasonably satisfactory the consummation of the transactions contemplated hereby and thereby, together with a certificate of the Secretary of Buyer dated as of Closing Date, that such resolutions were duly adopted and are in form full force and substance to Seller and its counseleffect;
(iii) a certificate of Purchaser with respect to the matters described in certificates contemplated by Sections 9.1 8.1 and 9.2 hereof8.2;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 and 9.6 hereofAncillary Agreements, duly executed by Buyer as appropriate;
(v) the opinion of counsel in substantially the form of EXHIBIT B hereto (the "Purchaser Opinion");
(vi) a certificate of existence of Purchaserfor Buyer, as of a date within twenty (20) days prior to the Closing Date, from the States of Delaware and Georgia;
(vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before dated the Closing Date, as Seller or its counsel may reasonably requiredescribed in Section8.5; and
(viiivi) a 1099 certificate to the extent applicable. The such other documents and certificates instruments as Seller may reasonably request to be delivered hereunder by or on behalf of consummate the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counseltransactions contemplated hereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Osborn Communications Corp /De/)
Transactions at the Closing. At the Closing, each of the following items shall be delivered:
(a) Seller Sellers shall, or shall cause its affiliate where appropriate to, deliver to Purchaser the following:
(i) (A) such bills of sale, motor vehicle titles, special warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to to, vest in, and vest in Purchaser purchase all of SellerSellers', and Sellers' affiliate's where appropriate, right, title, and interests in and to the Acquired Assets, including including, without limitation, good, marketable (insurablemarketable, subject to Permitted Encumbrances, as to the Real Property), insurable and valid title in and to all of the Acquired Assets owned by Seller Sellers in each case free and clear of all liensliens (subject only to Permitted Encumbrances), and good, insurable (B) as to the Real Property Leases, good, insurable (if applicable) and valid leasehold interests in by either Seller and Sellers' affiliate, where appropriate, as lessees, free and clear of all liens (subject only to the Permitted Encumbrances), and (C) all of the Acquired Assets leased by Seller as lessee, and all of Seller's Sellers' rights under all Contracts;
(ii) a certificate of Seller with respect to the matters described in Sections 8.1, 8.2, 8.5, 8.6, 8.12, and 8.18 hereof[INTENTIONALLY DELETED];
(iii) a certificate of executed by the Secretary or Assistant Secretary of each Seller (x) of incumbency of Sellers listing the General Partner respective officers of CMI and the managers, if any, and members of Chatham LLC authorized to execute this Agreement and the instruments of transfer on behalf of each Seller, certifying the authority of each such officer, manager and member to execute the agreements, documents, and instruments on behalf of each Seller in connection with respect the consummation of the transactions contemplated herein and (y) attaching for each Seller certifications as of a recent date from the Secretaries of State of Delaware and North Carolina as to the matters described existence, good standing and authority to transact business in Sections 8.7 and 8.8 hereofsuch states;
(iv) a certificate of the Secretary, Assistant Secretary or authorized member or manager of each Seller containing a complete and correct copy of the resolutions duly adopted by the board of directors or members of each Seller, approving and authorizing each Acquisition Document (as hereinafter defined) and the transactions contemplated hereby and thereby and certifying that such resolutions have not been rescinded, revoked, modified, or otherwise affected and remain in full force and effect;
(v) the opinion of counsel Sutherland, Asbill & Brennan ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇lle▇▇, ▇▇bstantially in substantially the form of EXHIBIT A hereto (the "Seller Sellers Opinion");
(vvi) the agreement of assignment and assumption of the Contracts and the Assumed Liabilities, substantially in the form of EXHIBIT B hereto (the "Assignment and Assumption Agreement") duly executed by Sellers;
(vii) to the extent permitted by law, all environmental permits related to the Acquired Assets as described in SECTION 7.9 hereof;
(viii) copies of the consents and waivers described in Section 8.5 hereof;
(vi) SECTION 8.6 hereof and satisfactory evidence of the approvals described in Section 8.5 SECTION 8.6 hereof;
(viiix) certificates of existence or certificates of Sellergood standing of each Seller and entity conveying any of the Acquired Assets, as of a date within twenty (20) days prior to the Closing Date, from the State its state of Georgia incorporation or formation and each jurisdiction listed in SCHEDULE 5.1.1 hereto;
(viiix) affidavit(s) affidavits of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising substantially in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably form of EXHIBIT C attached hereto and acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;
(ix) a 1099 certificate to the extent applicable;
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicableChicago Title Insurance Company;
(xi) a duly executed certificate stating that Seller neither Seller, nor Sellers' affiliate, where appropriate, is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amendedamended ("Code");
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and;
(xiii) the Bill of Sale substantially i▇ ▇▇e form of EXHIBIT D, executed by Sellers;
(xiv) the Copyright Assignment Agreements substantially in the form of EXHIBIT M, executed by Sellers;
(xv) the Trademark Assignment Agreement substantially in the form of EXHIBIT E, executed by Sellers;
(xvi) the Assignments of Patent substantially in the form of EXHIBIT F, executed by Sellers;
(xvii) all clearance certificates or similar documents that may be required by any state, local or other taxing authority in order to relieve Purchaser of any obligation to withhold or escrow any portion of the Purchase Price;
(xviii) such other evidence of the performance of all covenants and the satisfaction of all conditions required of Seller Sellers by this Agreement at or prior to the Closing Date as Purchaser or its counsel may reasonably require;
(xix) the intellectual property License substantially in the form of EXHIBIT I (the "License Agreement"), executed by Sellers as licensee; and
(xx) the Interface/CMI Fabric Supply Agreement (the "Fabric Supply Agreement"), the Services Agreement (the "Services Agreement"), Lease Agreement (the "Lease Agreement") and Office Lease Agreement (the "Office Lease Agreement"), substantially in the form of EXHIBITS J, K, H, and L, respectively. The documents and certificates to be delivered hereunder by or on behalf of Seller Sellers on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser the Parties and its their counsel.
(b) Purchaser shall deliver to Seller Sellers the following:
(i) a wire transfer(s) transfer in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed by Seller, and $1,926,500 representing the Escrow Amount amount equal to the designated escrow agentPurchase Price less the HSR Filing Fee;
(ii) an instrument or instruments the Assignment and Assumption Agreement substantially in the form of assumption of the Assumed LiabilitiesEXHIBIT B hereto, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;
(iii) a certificate executed by the Secretary or Assistant Secretary of Purchaser (x) of incumbency of Purchaser listing the officers of Purchaser authorized to execute this Agreement and other agreements to be executed in connection herewith, certifying the authority of each such officer to execute the agreements, documents, and instruments on behalf of Purchaser in connection with respect the consummation of the transactions contemplated herein and (y) attaching certifications as of a recent date from the Secretaries of State of Delaware and North Carolina as to the matters described existence, good standing and authority to transact business in Sections 9.1 and 9.2 hereofsuch states;
(iv) a certificate of executed by the Secretary or Assistant Secretary of Purchaser with respect containing a complete and correct copy of resolutions duly adopted by Purchaser's Board of Directors approving and authorizing this Agreement and each of the other Acquisition Documents to which Purchaser is a party and each of the matters described transactions contemplated thereby and certifying that such resolutions have not been rescinded, revoked, modified, or otherwise affected and remain in Sections 9.3 full force and 9.6 hereofeffect;
(v) the opinion of counsel Kilpatrick Stockton LLP, co▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇ubstantially in substantially the form of EXHIBIT B hereto G (the "Purchaser Opinion");
(vi) a certificate the Copyright Assignment Agreements substantially in the form of existence of PurchaserEXHIBIT M, as of a date within twenty (20) days prior to the Closing Date, from the States of Delaware and Georgiaexecuted by Sellers;
(vii) the Trademark Assignment Agreement substantially in the form of EXHIBIT E, executed by Purchaser;
(viii) the Assignments of Patent substantially in the form of EXHIBIT F, executed by Purchaser;
(ix) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before the Closing Date, as Seller Sellers or its their counsel may reasonably require; and
(viiix) a 1099 certificate appropriate certificates to satisfy state statutory exemptions for the extent applicableimposition of sales and use tax under applicable state law;
(xi) the License Agreement executed by Purchaser as licensor;
(xii) the Fabric Supply Agreement, the Services Agreement, Lease Agreement and Office Lease Agreement, substantially in the form of EXHIBITS J, K, H, and L, respectively. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller Parties and its their counsel, on one hand, and with respect to the Real Property Leases and the Contracts, the respective lessor or other party thereof, on the other hand.
Appears in 1 contract
Transactions at the Closing. At the Closing, each of the parties shall take the following items actions, which shall be delivereddeemed to occur simultaneously at the Closing:
(a) Purchaser shall take the following actions:
(i) deliver to Seller the Closing Date Purchase Price by means of wire transfer of immediately available funds into one or more bank accounts designated in writing by the Seller to Purchaser prior to the Closing Date; and
(ii) deliver to Seller the following:
(A) an Assumption Agreement, in substantially the form attached hereto as Exhibit B, duly executed by Purchaser and reflecting the assumption of the Assumed Liabilities;
(B) a copy of the resolutions duly adopted by the Board of Directors of Echo, as the sole member of Purchaser, certified by the Secretary thereof, authorizing the execution, delivery and performance of this Agreement by Purchaser and the issuance and delivery of the Restricted Stock by Echo;
(C) a certificate of an officer of the Purchaser as to the incumbency of the officers authorized to execute this Agreement on behalf of the Purchaser;
(D) a certificate from the Secretary of State of the State of Delaware as to the good standing of the Purchaser;
(E) the certificate required to be delivered pursuant to Section 8.3(a);
(F) an employment agreement between the Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, in substantially the form attached hereto as Exhibit C (the “Schwab Employment Agreement”);
(G) an employment agreement between the Purchaser and ▇▇▇▇ ▇▇▇▇▇, in substantially the form attached hereto as Exhibit D (the “▇▇▇▇▇ Employment Agreement” and together with the Schwab Employment Agreement, the “Employment Agreements”); and
(H) such other documents or certificates as are deemed reasonably necessary by Seller and its counsel.
(b) Seller shall deliver to Purchaser the following:
(i) such bills a ▇▇▇▇ of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, Sale and other good and sufficient instruments and documents of conveyance and transferAssignment Agreement, in substantially the form reasonably satisfactory to Purchaser and its counselattached hereto as Exhibit E, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of duly executed by Seller's right, title, and interests in and to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid title in and to all of the Acquired Assets owned by Seller free and clear of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Contracts;
(ii) a certificate copy of Seller with respect to the matters described in Sections 8.1resolutions duly adopted by Seller, 8.2certified by the Secretary thereof, 8.5authorizing the execution, 8.6, 8.12, delivery and 8.18 hereofperformance of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the General Partner an officer of Seller with respect as to the matters described in Sections 8.7 and 8.8 hereofincumbency of its officers authorized to execute this Agreement on behalf of Seller;
(iv) a certificate from the opinion Secretary of counsel in substantially State of the form State of EXHIBIT A hereto (Utah as to the "Seller Opinion")good standing of Seller;
(v) copies of the consents and waivers described in certificate required to be delivered pursuant to Section 8.5 hereof8.2(a);
(vi) satisfactory evidence each of the approvals described in consents required to be obtained from third parties as identified under Section 8.5 hereof4.4 of this Agreement;
(vii) certificates each of existence of Seller, as of a date within twenty (20) days prior to the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 heretoEmployment Agreements;
(viii) affidavit(s) a joinder or other instrument of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights), and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant accession to the terms Voting Agreement of this AgreementEcho (the “Voting Agreement Joinder”), and rights or claims of real estate brokers;
(ix) a 1099 certificate joinder or other instrument of accession to the extent applicableCo-Sale Agreement of Echo (the “Co-Sale Agreement Joinder”);
(x) a duly executed certificate stating that Seller is a Georgia resident, or that Seller is otherwise exempt from withholding under O.C.G.A. copies of the non-competition agreements required to be delivered pursuant to Section 48-7-128, as applicable6.5;
(xi) a an opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Seller and the Shareholders, dated the Closing Date and substantially in the form attached hereto as Exhibit F;
(xii) A certificate, duly completed and executed certificate stating by Seller pursuant to Section 1.1445-2(b)(2) of the Treasury Regulations, certifying that Seller is not a "“foreign person" for United States income tax purposes, in accordance with ” within the meaning of Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property recordsCode; and
(xiii) such other evidence of documents or certificates as are deemed reasonably necessary by the performance of all covenants and the satisfaction of all conditions required of Seller by this Agreement at or prior to the Closing Date as Purchaser or its counsel may reasonably require. The documents and certificates to be delivered hereunder by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel.
(b) Purchaser shall deliver to Seller the following:
(i) wire transfer(s) in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agent;
(ii) an instrument or instruments of assumption of the Assumed Liabilities, duly executed by Purchaser, and reasonably satisfactory in form and substance to Seller and its counsel;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereof;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 and 9.6 hereof;
(v) the opinion of counsel in substantially the form of EXHIBIT B hereto (the "Purchaser Opinion");
(vi) a certificate of existence of Purchaser, as of a date within twenty (20) days prior to the Closing Date, from the States of Delaware and Georgia;
(vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before the Closing Date, as Seller or its counsel may reasonably require; and
(viii) a 1099 certificate to the extent applicable. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counsel.
Appears in 1 contract
Sources: Asset Purchase Agreement (Echo Global Logistics, Inc.)
Transactions at the Closing. At the Closing, each of the following items shall be delivered:
(a) Seller The Administrative Agent shall deliver to Purchaser Buyer the following:
(i) such bills of salecertificates evidencing the Voting Units, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), and valid title in and to all of the Acquired Assets owned by Seller free and clear of all liensEncumbrances arising by, and goodthrough or under Homestake, insurable (as to the Real Property Leases) and valid leasehold interests duly endorsed by Homestake in and to all blank or accompanied by instruments of the Acquired Assets leased transfer duly executed in blank by Seller as lessee, and all of Seller's rights under all ContractsHomestake;
(ii) a certificate certificates evidencing the Non-Voting Units, free and clear of Seller with respect to the matters described all Encumbrances arising by, through or under Lac Minerals, duly endorsed by Lac Minerals in Sections 8.1, 8.2, 8.5, 8.6, 8.12, and 8.18 hereofblank or accompanied by instruments of transfer duly executed in blank by Lac Minerals;
(iii) a certificate of the Secretary or Assistant Secretary of the General Partner of Seller with respect to the matters described in Sections 8.7 and 8.8 hereofRoyalty Deed, duly executed by Sellers;
(iv) the opinion of counsel in substantially the form of EXHIBIT A hereto (the "Seller Opinion")Indemnity Deed, duly executed by Sellers;
(v) copies of the consents and waivers described in Section 8.5 hereofInvestor Rights Agreement, duly executed by Sellers or an Affiliate thereof that acquired the Consideration Units on Closing;
(vi) satisfactory evidence resignations in writing of all directors, officers and managers of the approvals described in Section 8.5 hereofCompany effective as of the Closing Time;
(vii) certificates the Books and Records of existence of Sellerthe Company, as of a date within twenty (20) days prior to the Closing Date, from the State of Georgia other than those Books and each jurisdiction listed Records contemplated in SCHEDULE 5.1.1 heretoSection 5.17;
(viii) affidavit(s) certificate of title stating that (a) there are no parties in possession good standing or equivalent for the Company and each Seller issued by the State of any Delaware and State of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights)California, and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property as applicable, within one hundred (100) three days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant to the terms of this Agreement), and rights or claims of real estate brokers;Closing Date; and
(ix) a 1099 certificate to the extent applicable;
(x) a duly executed certificate stating that Seller is a Georgia residentall other agreements, documents, instruments, deeds, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128, as applicable;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 of the Internal Revenue Code of 1986, as amended;
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiii) such other evidence of the performance of all covenants and the satisfaction of all conditions certificates required of Seller to be delivered by this Agreement Sellers at or prior to the Closing Date as Purchaser pursuant to Section 6.2 or its counsel may reasonably require. The documents and certificates to be delivered hereunder requested by or on behalf of Seller on the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counselBuyer.
(b) Purchaser Buyer shall deliver to Seller the Administrative Agent the following:
(i) wire transfer(s) certificates representing the Consideration Shares, in immediately available funds in amounts aggregating $17,338,500 to Seller the names of Homestake and Lac Minerals, or as otherwise directed by Sellerthe Administrative Agent, and $1,926,500 representing for the Escrow Amount number of Consideration Shares issued to each of Homestake and Lac Minerals, or as otherwise directed by the designated escrow agentAdministrative Agent, as set forth in a written notice by the Administrative Agent to Buyer to be delivered at least two Business Days prior to Closing;
(ii) an instrument warrants representing the Consideration Warrants, in the names of Homestake and Lac Minerals, or instruments of assumption of as otherwise directed by the Assumed Liabilities, duly executed by PurchaserAdministrative Agent, and reasonably satisfactory for the number of Consideration Warrants issued to each of Homestake and Lac Minerals, or as otherwise directed by the Administrative Agent, as set forth in form and substance a written notice by the Administrative Agent to Seller and its counselBuyer to be delivered at least two Business Days prior to Closing;
(iii) a certificate of Purchaser with respect to the matters described in Sections 9.1 and 9.2 hereofRoyalty Deed, duly executed by the Company;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to Indemnity Deed, duly executed by Buyer and/or the matters described in Sections 9.3 and 9.6 hereofCompany, as applicable;
(v) the opinion of counsel in substantially the form of EXHIBIT B hereto (the "Purchaser Opinion")Investor Rights Agreement, duly executed by Buyer and Augusta;
(vi) a certificate of existence good standing or equivalent for Buyer issued by the State of PurchaserDelaware within three days of the Closing Date; and
(vii) all other agreements, as of a date within twenty (20) days documents, instruments, deeds, or certificates required to be delivered by Buyer at or prior to the Closing Date, from pursuant to Section 6.3 or reasonably requested by the States of Delaware and Georgia;
(vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before the Closing Date, as Seller or its counsel may reasonably require; and
(viii) a 1099 certificate to the extent applicable. The documents and certificates to be delivered hereunder by or on behalf of the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counselAdministrative Agent.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Bullfrog Gold Corp.)
Transactions at the Closing. (a) At the Closing, each of the following items shall be delivered:
(a) Seller shall deliver to Purchaser Buyer the following:
(i) such bills assignments of sale, motor vehicle titles, warranty deeds, quitclaim deeds, assignments, endorsements, the Licenses and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to Purchaser and its counsel, as shall be necessary and effective to sell, transfer and assign to and vest in Purchaser all of Seller's right, title, and interests in and pertinent authorizations transferring the same to the Acquired Assets, including without limitation, good, marketable (insurable, subject to Permitted Encumbrances, as to the Real Property), Buyer in customary form and valid title in and to all of the Acquired Assets owned by Seller free and clear of all liens, and good, insurable (as to the Real Property Leases) and valid leasehold interests in and to all of the Acquired Assets leased by Seller as lessee, and all of Seller's rights under all Contractssubstance;
(ii) a certificate of Seller with respect to the matters described in certificates contemplated by Sections 8.1, 8.2, 8.5, 8.6, 8.12, 7.2 and 8.18 hereof7.3;
(iii) a copy of the resolutions of the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and the agreements and documents listed in Section 2.2 of the Disclosure Schedule (the "Ancillary Agreements"), and the consummation of the transactions contemplated hereby and thereby, together with a certificate of the Secretary or Assistant Secretary of Seller, dated as of the General Partner of Seller with respect to the matters described Closing Date, that such resolutions were duly adopted and are in Sections 8.7 full force and 8.8 hereofeffect;
(iv) a bil▇ ▇▇ sale and all other appropriate documents and instruments assigning to Buyer good and marketable title to the opinion Station Assets free and clear of counsel in substantially the form any security interests, mortgages, liens, pledges, attachments, conditional sales contracts, claims, charges or encumbrances of EXHIBIT A hereto (the "Seller Opinion")any kind whatsoever;
(v) copies of the consents and waivers described in Section 8.5 hereofAncillary Agreements, duly executed by Seller as appropriate;
(vi) satisfactory evidence written consents of the approvals described respective lessors, landowners, and any other persons or entities whose consents may be required to permit Buyer to assume the liabilities, contracts, leases, licenses, understandings and agreements constituting the Assumed Contracts provided that Seller shall not be required to deliver any written consents referred to in Section 8.5 hereof3.7(b) herein to the extent Seller has used reasonable efforts to obtain such consents;
(vii) certificates of existence of Seller, as of a date within twenty (20) days prior evidence satisfactory to Buyer's counsel that no financing statements are outstanding on the Closing Date, from the State of Georgia and each jurisdiction listed in SCHEDULE 5.1.1 heretoStation Assets;
(viii) affidavit(s) of title stating that (a) there are no parties in possession of any of the Real Property or Leased Real Property other than Seller (or otherwise specifically setting forth any such other parties' rights and the source and extent of such parties' rights)all files, records, logs, and (b) Seller has not caused any work to be performed on any of the Real Property or Leased Real Property within one hundred (100) days of the date of such affidavit(s), or if Seller has caused any such work to be performed within one hundred (100) days of such date(s) that all such work has been completed and fully paid for, and such other indemnities, lien waivers and other documentation as Purchaser's title insurance company may reasonably request in order to permit Purchaser's title insurance policy to be issued without exceptions as to matters arising in the "gap", mechanic's or materialman's liens, third parties in possession (other than specifically enumerated third parties as set forth above that are reasonably acceptable to Purchaser pursuant program materials relating to the terms of this Agreement), and rights or claims of real estate brokersStation;
(ix) a 1099 copy of the resolution of the board of directors of Osb▇▇▇ ▇▇mmunications Corporation ("OCC") authorizing the execution, delivery and performance by OCC of an indemnification agreement contained in Article IX hereof, together with a certificate to of OCC dated as of the extent applicableClosing Date, that such resolutions were duly adopted and are in full force and effect;
(x) a duly executed certificate stating that Seller is a Georgia residentthe opinion of counsel for Seller, or that Seller is otherwise exempt from withholding under O.C.G.A. Section 48-7-128dated the Closing Date, as applicabledescribed in Section 7.8;
(xi) a duly executed certificate stating that Seller is not a "foreign person" for United States income tax purposes, in accordance with Section 1445 and Section 897 assignments to Buyer of all the Internal Revenue Code of 1986, as amended;Assumed Contracts; and
(xii) recordable originals of any Real Property Leases, or recordable short forms thereof, which have not previously been recorded in the appropriate real property records; and
(xiii) such other evidence of the performance of all covenants documents and the satisfaction of all conditions required of Seller by this Agreement at or prior to the Closing Date instruments as Purchaser or its counsel Buyer may reasonably require. The documents and certificates request to be delivered hereunder by or on behalf of Seller on consummate the Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counseltransactions contemplated hereby.
(b) Purchaser At the Closing, Buyer shall deliver or cause to be delivered to Seller the following:
(i) wire transfer(s) in immediately available funds in amounts aggregating $17,338,500 to Seller or as directed by Seller, and $1,926,500 representing the Escrow Amount to the designated escrow agentPurchase Price;
(ii) an instrument or instruments of assumption a copy of the Assumed Liabilitiesresolutions of the board of directors of Buyer authorizing the execution, duly executed by Purchaserdelivery and performance of this Agreement and the Ancillary Agreements, and reasonably satisfactory the consummation of the transactions contemplated hereby and thereby, together with a certificate of the Secretary of Buyer dated as of Closing Date, that such resolutions were duly adopted and are in form full force and substance to Seller and its counseleffect;
(iii) a certificate of Purchaser with respect to the matters described in certificates contemplated by Sections 9.1 8.1 and 9.2 hereof8.2;
(iv) a certificate of the Secretary or Assistant Secretary of Purchaser with respect to the matters described in Sections 9.3 and 9.6 hereofAncillary Agreements, duly executed by Buyer as appropriate;
(v) the opinion of counsel in substantially the form of EXHIBIT B hereto (the "Purchaser Opinion");
(vi) a certificate of existence of Purchaserfor Buyer, as of a date within twenty (20) days prior to the Closing Date, from the States of Delaware and Georgia;
(vii) such other evidence of the performance of all covenants and satisfaction of all of the conditions required of Purchaser by this Agreement, at or before dated the Closing Date, as Seller or its counsel may reasonably requiredescribed in Section 8.5; and
(viiivi) a 1099 certificate to the extent applicable. The such other documents and certificates instruments as Seller may reasonably request to be delivered hereunder by or on behalf of consummate the Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to the Seller and its counseltransactions contemplated hereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Osborn Communications Corp /De/)