Transactions to be Effected at the Closing. At the Closing: (a) Each Contributor shall deliver, or cause to be delivered by the Contributors’ Representative, to PEGC I OP: (i) instruments of transfer, in form and substance reasonably satisfactory to PEGC I OP, sufficient to transfer ownership of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed by such Contributor; (ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing Date; (iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions; (iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and (v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor. (b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP: (i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date; (ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions; (iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b); (iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative; (v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative; (vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable; (vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable; (viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto; (ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto; (x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company; (xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto; (xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative; (xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes; (xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed; (xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies; (xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi); (xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and (xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto. (c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below): (i) to PELP, the Cash Consideration; (ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration; (iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent; (iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP; (v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP; (vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive; (vii) a copy of the Services Agreement, duly executed by the parties thereto; (viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP; (ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board; (x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP; (xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP; (xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP; (xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii); (xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and (xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OP. (d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 2 contracts
Sources: Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.), Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.)
Transactions to be Effected at the Closing. (a) At the Closing:
(a) Each Contributor , ParentCo shall deliver, or cause deliver to be delivered by the Contributors’ Representative, to PEGC I OPTransferors:
(i) instruments of transfer, in form and substance reasonably satisfactory to PEGC I OP, sufficient to transfer ownership Each Transferor’s pro-rata allocation of the Contributed Interests set forth opposite the name of Exchange Shares minus such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed by such Contributor;
(ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State Transferor’s pro-rata allocation of the jurisdiction of organization of such entityEscrow Shares and the Non-Key License Holdback Shares, dated as of a date within ten (10) Business Days before evidenced by statements from ParentCo’s registrar and transfer agent showing the Closing Date;
(iii) if such Contributor is not an individual, a certificate issuance of the secretary, general partner or manager, as applicable, of such Contributor, dated as Exchange Shares in the names of the Closing Date, Transferors in non- certificated book-entry form or other similar instrument and substance reasonably satisfactory to PEGC I OP, as to in the resolutions of amounts specified on the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing DatePayment Allocation Schedule;
(ii) a certificate true and complete copy, certified by the secretary or similar officer of MedMen, of (i) the resolutions duly and validly adopted by the Board of Directors of MedMen evidencing its authorization of the secretaryexecution of this Agreement and the Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby and (ii) the MedMen Arrangement Resolution duly and validly adopted evidencing the Shareholder Approval;
(iii) a true and complete copy, general partner certified by the secretary or managersimilar officer of ParentCo and Merger Sub, as applicable, of each Contributed Company, dated as the resolutions duly and validly adopted by the respective boards of directors of ParentCo and Merger Sub evidencing authorization of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements Transaction Documents to which they are a party and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 consummation of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; transactions contemplated hereby and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b)thereby;
(iv) a copy certificate of an escrow agreement, a duly authorized officer of ParentCo certifying as to the matters set forth in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”Section 10.03(a) and Section 10.03(b), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly Escrow Agreement executed by ParentCo and the Contributors’ RepresentativeEscrow Agent, and the Lock-Up Agreements and the IL Medtech Lock-Up Agreement, each as executed by ParentCo;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OPCompany, that the pre-closing restructuring according to Arrangement has occurred in accordance with the steps set forth in the Plan terms of Reorganization has been completed;this Agreement; and
(xvvii) each of the documents and all other agreements, documents, instruments or certificates required to be delivered by ParentCo and MedMen to the Transferors’ Representative or the Transferors at or prior to the Closing pursuant to Section 6.17 in connection with 10.3 of this Agreement.
(b) At the issuance Closing, the Company and/or the Transferors shall deliver to ParentCo:
(i) Unit transfer documents evidencing the transfer of the Title PoliciesUnits to ParentCo, free and clear of all Encumbrances, or such other evidence of transfer of the Units satisfactory to ParentCo;
(xviii) a true and complete copy, certified by the secretary or similar officer of the Company, of the resolutions duly and validly adopted by the boards of managers and the members of the Company evidencing authorization of the execution of this Agreement and the Transaction Documents to which each is a party and the consummation of the transactions contemplated hereby and thereby;
(iii) resignation letters of all directors and managers of the Company that MedMen requests in writing at least two (2) Business Days prior to the Closing Date, except for such directors or managers who are reasonably required to remain in their roles to effectuate the Transfer of Cannabis Permits as provided in Section 8.20, subject to MedMen’s approval, such approval not to be unreasonably withheld;
(iv) each of the Debt Consents Escrow Agreement and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly Lock-Up Agreements executed by PECO Real Estate Partnersthe Transferors’ Representative and the IL Medtech Lock-Up Agreement executed by IL Medtech; and
(xviiiv) the all other documents agreements, documents, instruments or certificates required to be delivered by Transferors or the Contributors’ Representative Company at or prior to the Closing pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy Section 10.02 of the Escrow this Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OP.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 2 contracts
Sources: Business Combination Agreement (MedMen Enterprises, Inc.), Business Combination Agreement
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties to this Agreement:
(a) Each Contributor Seller Representative, NewCo and/or the Company, as applicable shall deliver, deliver or cause to be delivered by the Contributors’ Representative, to PEGC I OPAcquiror:
(i) instruments a certificate from the (1) California Secretary of transferState and (2) Franchise Tax Board of the State of California, in each case, certifying that the Company is in good standing and dated no earlier than ten (10) Business Days prior to the Closing Date;
(ii) the Payoff Letters, duly executed by the applicable holders of Closing Debt to be paid at Closing, and any other applicable releases, termination statements or other similar documentation (to the extent not included in the Payoff Letters), in form and substance reasonably satisfactory to PEGC I OPAcquiror, sufficient to transfer ownership of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free releasing and clear of terminating any and all Liens Encumbrances (other than Permitted Liens, duly executed by such Contributor;
(iiEncumbrances) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State relating to Debt of the jurisdiction Company for borrowed money promptly following the payment of organization of the amount set forth in such entity, dated as of a date within ten (10) Business Days before the Closing DatePayoff Letter;
(iii) if such Contributor is not an individual, a certificate final invoice from each payee of any portion of the secretary, general partner or manager, as applicable, of such ContributorEstimated Transaction Expense to be paid by Acquiror at Closing;
(iv) a certificate, dated as of the Closing Date, of the Secretary or executive officer of the Company, in form and substance reasonably satisfactory to PEGC I OPAcquiror, as to certifying that the resolutions of the directorsconditions set forth in Sections 10.1(a), general partner or managers, as applicable, of such Contributor authorizing the execution 10.2(a) and performance of this Agreement, the Ancillary Agreements and the Transactions10.3 have been satisfied;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Companycertificate, dated as of the Closing Date, in form from each Seller, each Seller Guarantor and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each ContributorNewCo, in form and substance reasonably satisfactory to PEGC I OPAcquiror, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially certifying that the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals conditions set forth on Schedule 1.03(b)(viin Sections 10.1(b) (the “Lockup Parties”)and 10.2(b) have been satisfied, as applicable;
(vi) evidence, in form and substance reasonably satisfactory to Acquiror, of the resignations or removal of the members of the Board of Directors of the Company and the officers of the Company requested by Acquiror no later than two (2) Business Days prior to the Closing, such resignations or removal to be effective concurrently with the Closing;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), a duly executed by certificate of non-foreign status, in form and substance reasonably satisfactory to Acquiror, from NewCo in a form and manner that complies with Section 1445(b)(2) of the individual employees contemplated therein (eachCode and the Treasury Regulations thereunder, an “Executive”), as applicabletogether with a duly executed IRS Form W-9 from NewCo;
(viii) a copy of an asset management agreementwritten consent, in substantially form and substance reasonably acceptable to Acquiror, from each of the form attached hereto as Exhibit G (the “Services Agreement”third parties set forth on Schedule 2.3(a)(viii), duly executed by the parties thereto;
(ix) a copy Spousal Consent from each Seller Guarantor duly executed by the spouse of a PEGC I OP Amended and Restated Partnership such Seller Guarantor;
(x) the Escrow Agreement, in substantially duly executed by NewCo and the form attached hereto as Exhibit H Escrow Agent;
(xi) the “PEGC I OP Amended and Restated Partnership Restrictive Covenant Agreement”), duly executed by the Contributors Company and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇; and
(xii) the Termination Agreement, duly executed by the Company and ▇▇▇▇▇ ▇▇▇▇▇▇ & Company▇▇.
(b) Acquiror shall pay or deliver or cause to be paid or delivered (as applicable):
(i) the following payments:
(A) to NewCo, Ltd.the Estimated Total Stock Purchase Consideration (less the (1) Adjustment Escrow Amount and (2) the aggregate amount payable pursuant to Schedule 7.6), an Ohio limited liability companypaid by wire transfer of immediately available funds to the bank account or accounts designated in writing by NewCo on the Payment Schedule delivered pursuant to Section 2.4(a)(i)(B) in the amounts set forth therein;
(xiB) copies to the holders of Debt for borrowed money identified on Schedule 3.9(c) of the Company Disclosure Letter, the respective amounts set forth in each Payoff Letter, paid by wire transfer of immediately available funds to the bank account or accounts designated on the Payment Schedule;
(C) to the payees of the Estimated Transaction Expenses (other Ancillary than the Transaction Bonuses), the amount set forth in the applicable final invoice delivered pursuant to Section 2.3(a)(iii), paid by wire transfer of immediately available funds to the bank account or accounts designated on the Payment Schedule; provided, that, any amounts treated as wages or compensation to a current or former employee of the Company shall be paid to the Company, which shall pay the respective payee such amount, less applicable withholding Taxes, through the Company’s payroll system;
(D) to the Company, the aggregate amount of the Transaction Bonuses as set forth on the Estimated Closing Statement (and the amount of the employer portion of any payroll, social security, unemployment and similar Taxes related to the Transaction Bonuses), paid by wire transfer of immediately available funds to the bank account or accounts designated on the Payment Schedule; provided, that promptly following the Closing, the Company shall make payments to each Person in the amount of the Transaction Bonus set forth opposite such Person’s name on the Schedule 1.1(f) (less any applicable Taxes required to be deducted or withheld) utilizing the payroll system of the Company; and
(E) to the Escrow Agent, the Adjustment Escrow Amount, by wire transfer of immediately available funds in accordance with the terms of the Escrow Agreement; (ii) to NewCo, the Escrow Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto▇▇▇▇▇▇▇▇;
(xiiiii) the certificate to NewCo, an executed copy of the Contributors’ Representative resolutions authorizing ▇▇▇▇▇▇▇▇’s execution, delivery and performance of this Agreement and the Acquiror Ancillary Agreements and the consummation of the transactions contemplated by Sections 7.02(ahereunder and ▇▇▇▇▇▇▇▇▇▇; and
(iv) and (b)to NewCo, a certificate from an officer of Acquiror, in form and substance reasonably satisfactory to PEGC I OPNewCo, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, certifying that the pre-closing restructuring according to the steps conditions set forth in the Plan of Reorganization has Sections 9.1 and 9.2 have been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreementsatisfied, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties theretoapplicable.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OP.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Outdoor Products Spinco Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.)
Transactions to be Effected at the Closing. At On the ClosingClosing Date, the following transactions shall be effected by the Parties:
(a) Each Contributor The Seller and/or the Company, as applicable, shall deliver, deliver or cause to be delivered by to the Contributors’ Representative, to PEGC I OPBuyer:
(i) instruments a certificate, dated as of transferthe Closing Date, of the secretary or executive officer of the Company certifying that (A) the Company has previously made available to the Buyer a complete and correct copy of the Company’s Organizational Documents, as amended to date, and (B) such Organizational Documents have not been amended or modified in any respect and remain in full force and effect as of the Closing Date;
(ii) with respect to the Seller, a membership interest transfer power, dated as of the Closing Date, duly executed by such Seller with respect to all of the Company Interests held by such Seller, in form and substance reasonably satisfactory to PEGC I OP, sufficient to transfer ownership of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed by such Contributor;
(ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing DateBuyer;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Dateevidence, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, as to the resolutions of the directorsresignations or removal of the board of directors (or similar governing body) and officers of the Company, general partner if any, requested by the Buyer, such resignations or managers, as applicable, of such Contributor authorizing removal to be effective concurrently with the execution and performance of this Agreement, the Ancillary Agreements and the TransactionsClosing;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf certificate from the manager of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, as to: (Acertifying that the conditions set forth in Sections 8.1(a), 8.1(b), and 8.1(c) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managershave been satisfied, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iiiv) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification duly executed certificates of non-foreign status of each Contributorstatus, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, from each of the Seller in accordance a form and manner that complies with Sections 1445(b)(2) and 1446(f) of the Code and the Treasury Regulation Section 1.1445-2(b)Regulations thereunder;
(ivvi) a copy each of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”)Transaction Documents, duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially Seller and/or the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”)Company, as applicable;
(vii) copies a good standing certificate for the Company from the Secretary of employment agreementsState (or equivalent Governmental Authority) of the jurisdiction of its organization, which substantially reflect dated no earlier than five (5) Business Days prior to the terms in Closing Date;
(viii) the term sheets attached hereto as Exhibit F (the “Employment Agreements”)Payoff Letters, duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy applicable holders of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability companyIndebtedness to be paid at Closing, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and any other applicable parties thereto;
releases, termination statements or other similar documentation (xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth extent not included in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (bPayoff Letters), in form and substance reasonably satisfactory to the Contributors’ RepresentativeBuyer, releasing and terminating any and all Encumbrances (other than Permitted Encumbrances) relating to Indebtedness of the Company for borrowed money;
(ix) duly executed and delivered termination agreements, in form and substance reasonably acceptable to the Buyer, with respect to any Affiliate Agreements providing for the complete and full termination of such Affiliate Agreements at or prior to the Closing with no liabilities to the Buyer, the Business, and/or the Company from and after the Closing;
(x) employment agreements in the form attached hereto as Exhibit F, effective the Closing Date, signed by each of the Key Executives; and
(xi) all of the consents, notices, waivers, assignments, amendments and approvals set forth on Schedule 2.2(a)(xi), each in form and substance reasonably acceptable to the Buyer.
(b) The Buyer shall pay or deliver or cause to be paid or delivered (as applicable):
(i) the following payments:
(A) to the Seller, the Estimated Purchase Price, less the Escrow Amounts, by wire transfer of immediately available funds to a bank account designated in writing by the Seller, which shall be provided to the Buyer at least five (5) Business Days prior to the Closing Date;
(B) to the Escrow Agent, the Adjustment Escrow Amount, by wire transfer of immediately available funds in accordance with the terms of the Escrow Agreement;
(C) to the Escrow Agent, the Indemnity Escrow Amount, by wire transfer of immediately available funds in accordance with the terms of the Escrow Agreement;
(D) to the Persons entitled thereto in the amounts payable to each counterparty or holder of Indebtedness to be paid at Closing, by wire transfer of immediately available funds in accordance with the Payoff Letters, which shall be provided to the Buyer at least two (2) Business Days prior to the Closing Date;
(E) the Estimated Transaction Expenses (other than the Sale Bonuses), to the Persons entitled thereto as set forth on the Pre-Closing Statement, by wire transfer of immediately available funds to a bank account designated in writing by the Seller, which shall be provided to the Buyer at least two (2) Business Days prior to the Closing Date;
(ii) to the Seller, a certificate from an officer of the Buyer, in form and substance reasonably satisfactory to the Seller, certifying that the conditions set forth in Sections 8.2(a) and 8.2(b) have been satisfied, as applicable;
(iii) to the Seller, the Transaction Documents, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License AgreementBuyer and/or its Affiliates, duly executed by PEGC Ias applicable; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OP.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Wireless Telecom Group Inc), Membership Interest Purchase Agreement (R F Industries LTD)
Transactions to be Effected at the Closing. (a) At the Closing:
(a) Each Contributor shall deliver, or cause to be delivered by the Contributors’ Representative, to PEGC I OPBuyer and Parent shall:
(i) instruments of transfer, in form and substance reasonably satisfactory deliver to PEGC I OP, sufficient to transfer ownership of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed by such Contributor;Sellers’ Representative:
(iiA) if such Contributor is not the Closing Date Cash Payment by wire transfer of immediately available funds to an individual, a certificate of good standing of such Contributor certified account designated in writing by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Sellers to Buyer no later than two Business Days before prior to the Closing Date;
(B) the GTI Shares payable to Sellers as part of the Purchase Price, minus the Escrow Fund Share Portion; and
(C) the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 7.03 of this Agreement; and
(ii) pay, on behalf of the Company or Sellers, the following amounts:
(A) Indebtedness of the Company to be paid at Closing, by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Indebtedness Certificate; and
(iii) if such Contributor is not an individualdeliver to the Escrow Agent:
(A) the Escrow Fund Cash Portion by wire transfer of immediately available funds to accounts designated by the Escrow Agent and the Escrow Fund Share Portion, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article VIII and the obligations of Sellers in Section 6.08;
(B) the Escrow Agreement.
(b) At the Closing, Sellers shall deliver to Buyer:
(i) a certificate document evidencing assignment of the secretary, general partner or managerCompany Interest and California Interest, as applicableapplicable (such document, of such Contributorthe “Interest Assignment”);
(ii) the written resignations, dated to be effective as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, officers and managers of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such ContributorCompany Parties set forth on Schedule 2.03; and
(viii) the Ancillary Documents and all other documents agreements, documents, instruments or certificates required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (Sellers at or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance 7.02 of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License this Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OP.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Green Thumb Industries Inc.), Membership Interest Purchase Agreement
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties to this Agreement:
(a) Each Contributor Seller Representative, NewCo and/or the Company, as applicable shall deliver, deliver or cause to be delivered by the Contributors’ Representative, to PEGC I OPAcquiror:
(i) instruments a certificate from the (1) California Secretary of transferState and (2) Franchise Tax Board of the State of California, in each case, certifying that the Company is in good standing and dated no earlier than ten (10) Business Days prior to the Closing Date;
(ii) the Payoff Letters, duly executed by the applicable holders of Closing Debt to be paid at Closing, and any other applicable releases, termination statements or other similar documentation (to the extent not included in the Payoff Letters), in form and substance reasonably satisfactory to PEGC I OPAcquiror, sufficient to transfer ownership of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free releasing and clear of terminating any and all Liens Encumbrances (other than Permitted Liens, duly executed by such Contributor;
(iiEncumbrances) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State relating to Debt of the jurisdiction Company for borrowed money promptly following the payment of organization of the amount set forth in such entity, dated as of a date within ten (10) Business Days before the Closing DatePayoff Letter;
(iii) if such Contributor is not an individual, a certificate final invoice from each payee of any portion of the secretary, general partner or manager, as applicable, of such ContributorEstimated Transaction Expense to be paid by Acquiror at Closing;
(iv) a certificate, dated as of the Closing Date, of the Secretary or executive officer of the Company, in form and substance reasonably satisfactory to PEGC I OPAcquiror, as to certifying that the resolutions of the directorsconditions set forth in Sections 10.1(a), general partner or managers, as applicable, of such Contributor authorizing the execution 10.2(a) and performance of this Agreement, the Ancillary Agreements and the Transactions10.3 have been satisfied;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Companycertificate, dated as of the Closing Date, in form from each Seller, each Seller Guarantor and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each ContributorNewCo, in form and substance reasonably satisfactory to PEGC I OPAcquiror, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially certifying that the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals conditions set forth on Schedule 1.03(b)(viin Sections 10.1(b) (the “Lockup Parties”)and 10.2(b) have been satisfied, as applicable;
(vi) evidence, in form and substance reasonably satisfactory to Acquiror, of the resignations or removal of the members of the Board of Directors of the Company and the officers of the Company requested by Acquiror no later than two (2) Business Days prior to the Closing, such resignations or removal to be effective concurrently with the Closing;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), a duly executed by certificate of non-foreign status, in form and substance reasonably satisfactory to Acquiror, from NewCo in a form and manner that complies with Section 1445(b)(2) of the individual employees contemplated therein (eachCode and the Treasury Regulations thereunder, an “Executive”), as applicabletogether with a duly executed IRS Form W-9 from NewCo;
(viii) a copy of an asset management agreementwritten consent, in substantially form and substance reasonably acceptable to Acquiror, from each of the form attached hereto as Exhibit G (the “Services Agreement”third parties set forth on Schedule 2.3(a)(viii), duly executed by the parties thereto;
(ix) a copy Spousal Consent from each Seller Guarantor duly executed by the spouse of a PEGC I OP Amended and Restated Partnership such Seller Guarantor;
(x) the Escrow Agreement, in substantially duly executed by NewCo and the form attached hereto as Exhibit H Escrow Agent;
(xi) the “PEGC I OP Amended and Restated Partnership Restrictive Covenant Agreement”), duly executed by the Contributors Company and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇; and
(xii) the Termination Agreement, duly executed by the Company and ▇▇▇▇▇ ▇▇▇▇▇▇ & Company▇▇.
(b) Acquiror shall pay or deliver or cause to be paid or delivered (as applicable):
(i) the following payments:
(A) to NewCo, Ltd.the Estimated Total Stock Purchase Consideration (less the (1) Adjustment Escrow Amount and (2) the aggregate amount payable pursuant to Schedule 7.6), an Ohio limited liability companypaid by wire transfer of immediately available funds to the bank account or accounts designated in writing by NewCo on the Payment Schedule delivered pursuant to Section 2.4(a)(i)(B) in the amounts set forth therein;
(xiB) copies to the holders of Debt for borrowed money identified on Schedule 3.9(c) of the Company Disclosure Letter, the respective amounts set forth in each Payoff Letter, paid by wire transfer of immediately available funds to the bank account or accounts designated on the Payment Schedule;
(C) to the payees of the Estimated Transaction Expenses (other Ancillary than the Transaction Bonuses), the amount set forth in the applicable final invoice delivered pursuant to Section 2.3(a)(iii), paid by wire transfer of immediately available funds to the bank account or accounts designated on the Payment Schedule; provided, that, any amounts treated as wages or compensation to a current or former employee of the Company shall be paid to the Company, which shall pay the respective payee such amount, less applicable withholding Taxes, through the Company’s payroll system;
(D) to the Company, the aggregate amount of the Transaction Bonuses as set forth on the Estimated Closing Statement (and the amount of the employer portion of any payroll, social security, unemployment and similar Taxes related to the Transaction Bonuses), paid by wire transfer of immediately available funds to the bank account or accounts designated on the Payment Schedule; provided, that promptly following the Closing, the Company shall make payments to each Person in the amount of the Transaction Bonus set forth opposite such Person’s name on the Schedule 1.1(f) (less any applicable Taxes required to be deducted or withheld) utilizing the payroll system of the Company; and
(E) to the Escrow Agent, the Adjustment Escrow Amount, by wire transfer of immediately available funds in accordance with the terms of the Escrow Agreement;
(ii) to NewCo, the Escrow Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto▇▇▇▇▇▇▇▇;
(xiiiii) the certificate to NewCo, an executed copy of the Contributors’ Representative resolutions authorizing ▇▇▇▇▇▇▇▇’s execution, delivery and performance of this Agreement and the Acquiror Ancillary Agreements and the consummation of the transactions contemplated by Sections 7.02(ahereunder and ▇▇▇▇▇▇▇▇▇▇; and
(iv) and (b)to NewCo, a certificate from an officer of Acquiror, in form and substance reasonably satisfactory to PEGC I OPNewCo, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, certifying that the pre-closing restructuring according to the steps conditions set forth in the Plan of Reorganization has Sections 9.1 and 9.2 have been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreementsatisfied, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties theretoapplicable.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OP.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Revelyst, Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.)
Transactions to be Effected at the Closing. (a) At the Closing:
, Seller shall, and shall cause the other Divesting Entities to (a) Each Contributor shall deliveras applicable), deliver or cause to be delivered by the Contributors’ Representative, to PEGC I OPPurchaser:
(i) instruments of transfer, in form and substance reasonably satisfactory duly executed counterparts to PEGC I OP, sufficient to transfer ownership each of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens Ancillary Agreements (other than Permitted Liens, duly executed by such Contributorthe Commercial Supply Agreement);
(ii) if such Contributor is not an individualthe tangible Transferred Assets, a certificate all of good standing of such Contributor certified by which shall be located at the Secretary of State Princeton Facility as of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing DateClosing;
(iii) if such Contributor is not an individualAssignment and Assumption of Lease with respect to the Princeton Lease in the form of Exhibit B (the “Assumption of Lease”), duly executed by Erytech Inc. and the landlord under the Princeton Lease;
(iv) a certificate of the secretary, general partner or manager, as applicable, of such Contributorcertificate, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State each of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: Divesting Entities certifying (A) no amendments to that attached thereto are true and complete copies of all resolutions adopted by the certificate board of incorporation (directors or comparable document) similar managing body of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company Divesting Entity authorizing the execution execution, delivery and performance of this Agreement and the Ancillary Agreements to which it will be a party and the Transactionsconsummation of the Acquisition and the other transactions contemplated to be consummated by it by this Agreement and such Ancillary Agreements, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby, and (B) the names and signatures of the officers of each of the Divesting Entities authorized to sign this Agreement, the Ancillary Agreements to which it will be a party and the other documents required to be delivered hereunder and thereunder;
(v) evidence reasonably satisfactory to Purchaser that all Liens (other than Permitted Liens) on the Transferred Assets have been terminated and released as of the Closing;
(vi) a certificate, dated as of the Closing Date and signed by an authorized officer of Seller, certifying that each of the conditions set forth in Section 8.02(a), Section 8.02(b) and Section 8.02(d) have been satisfied or waived in writing by Purchaser;
(vii) a duly executed IRS Form W-9 or IRS Form W-8BEN-E (or equivalent Tax form) from each Divesting Entity; and
(viii) a certificate of the Secretary of State of the State of New Jersey as to the tax good standing of each of the Divesting Entities in the State of New Jersey, dated as of a recent date.
(b) At the Closing, Purchaser shall deliver to Seller:
(i) payment, by wire transfer of immediately available funds to one or more accounts designated in writing by Seller (such designation to be made at least three (3) Business Days prior to the Closing Date), of (A) the Purchase Price and (B) such amounts as are required to be paid by Purchaser pursuant to Section 3.03;
(ii) duly executed counterparts to each of the Ancillary Agreements (other than the Commercial Supply Agreement);
(iii) either (A) (1) a statement the Assumption of each Contributed CompanyLease, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed duly executed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b)Purchaser;
(iv) a copy of an escrow agreementcertificate, in substantially the form attached hereto dated as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OPClosing Date, of the assignment Secretary of Purchaser certifying (A) that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Purchaser authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which it will be a party and the consummation of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that Acquisition and the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required other transactions contemplated to be delivered pursuant to Section 6.17 consummated by it by this Agreement and such Ancillary Agreements, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the issuance transactions contemplated hereby and thereby, and (B) the names and signatures of the Title Policies;
(xvi) each officers of Purchaser authorized to sign this Agreement, the Debt Consents Ancillary Agreements to which it will be a party and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative it hereunder and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;thereunder; and
(v) copies a certificate, dated as of the Equityholder AgreementsClosing Date, duly executed signed by PEGC I OP and/or an Affiliate authorized officer of PEGC I OP;
(vi) copies Purchaser, certifying that each of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, conditions set forth in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(aSection 8.03(a) and (b), Section 8.03(b) have been satisfied or waived in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed writing by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OPSeller.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 1 contract
Transactions to be Effected at the Closing. At or prior to the ClosingClosing (as the case may be):
5.2.1. The Sellers shall deliver or cause to be delivered to Purchaser:
(a) Each Contributor shall deliver, or cause to be delivered by the Contributors’ Representative, to PEGC I OP:
(i) instruments Share Registration Book of transfer, in form and substance reasonably satisfactory to PEGC I OP, sufficient to transfer the Company evidencing the ownership of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed by such Contributor;
(ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified Shares by the Secretary of State Sellers and that they are unencumbered, and the Share Registration Book of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before Operating Company evidencing the Closing Date;
(iii) if such Contributor is not an individual, a certificate ownership of the secretary, general partner or manager, as applicable, of such Contributor, dated as shares of the Closing Date, in form Operating Company by the Company and substance reasonably satisfactory to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution FrHolding72 and performance of this Agreement, the Ancillary Agreements and the Transactionsthat they are unencumbered;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ certificates of a duly authorized Representative shall (on behalf of the ContributorsSellers certifying that at Closing the closing conditions set forth in Articles 3.1 (with respect to the conditions applicable to the Sellers) deliver to PEGC I OP:and 3.2 have been satisfied;
(ic) a certificate of good standing for each Contributed Company, and a copy the respective transfer book orders (termos de transferência de ações) of the certificate Shares to the Purchaser and the share transfer books of incorporation the Company and of the Operating Company;
(or comparable documentd) all Shareholders’ Meeting, Board of Directors’ and Officers’ meeting Books of the Company and the Company Subsidiaries, their respective ByLaws and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Datethereto;
(iie) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments except with respect to the certificate of incorporation Persons identified by Purchaser to the Sellers, at least 30 (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20thirty) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3resignations of each director (membro do conselho de administração) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 officers (diretores) of the Code; Company and each Company Subsidiary by means of which the directors (2membro do conselho de administração) and officers (diretores) shall release the notification Company or the relevant Company Subsidiary, completely and irrevocably, from all their respective obligations vis-à-vis those individuals with respect to their holding positions of director or officer, as the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery case may be, with nothing more to claim from the Company or the relevant Company Subsidiary, with effect as of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, it being further established that, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy case of the Legacy Agreements Terminationofficers and directors above mentioned, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability companyresignation shall operate only with respect to their corporate duties and positions of officers, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory not with respect to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license their employment agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviiif) a certificate issued by each of the other documents required Sellers confirming that the representations and warranties of Sellers contained in Articles 7.1.5 and 7.2.4 are true and correct in all material respects as of the Closing.
5.2.2. Purchaser shall deliver or cause to be delivered by to the Contributors’ Sellers:
(a) a certificate of a duly authorized Representative of the Purchaser certifying that the closing conditions set forth in Articles 3.1 (with respect to the conditions applicable to Purchaser) and 3.3 have been satisfied;
(b) the payment of the Cash Consideration, as adjusted pursuant to Article VII2.2.1, duly executed by including evidence of the Contributors’ Representative and other applicable parties thereto.wire transfers referred to in Article 2.1(i) hereof;
(c) PEGC I OP shall deliver copies of the DARFs with evidence of payment of the withholding income tax on capital gains pursuant to Article 2.1.2 above;
(d) the Contributors’ Representative (or to PELP as noted below):certificates of the bank responsible for the registration of the Stock Consideration Shares representing the Stock Consideration payment evidencing the ownership of the Stock Consideration by the Sellers, and that it is unencumbered;
(i) an extraordinary general meeting of shareholders of the Company to PELP, take place in order to accept the Cash Consideration;
resignation of the directors (membros do conselho de administração) and elect the new members of the Company’s board of directors; (ii) a board of directors meeting shall take place in order to PELP, accept the Estimated Adjusted OP Unit Consideration, less resignation of the Escrowed Consideration;
officers (diretores) and to elect the new officers of the Company; (iii) a copy an extraordinary general meeting of shareholders of the Escrow Agreement, duly executed by PEGC I OP and Operating Company to take place in order to accept the Escrow Agent;
(iv) a copy resignation of the Tax Protection Agreement, duly executed by PEGC I officers and PEGC I OP;
(v) copies to elect the new officers of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC IOperating Company; and
(xvf) letters from the other documents required to be delivered by PEGC I OP pursuant to Article VIICompany and the Operating Company, duly executed by PEGC I OP.
the officers (ddiretores) PEGC I OP shall also appointed by Purchaser, releasing the directors (xmembros do conselho de administração) deliver and officers of the Company and the Operating Company presenting resignation letters at Closing, completely and irrevocably, from all their obligations, with nothing more to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance claim from such persons except for fraud or criminal offense, with instructions provided by the Contributor Representative together with effect as of the Closing OP Unit Consideration EstimateDate.
Appears in 1 contract
Transactions to be Effected at the Closing. At the Closing:
(a) Each Contributor Seller shall deliver, or cause deliver to be delivered by the Contributors’ Representative, to PEGC I OPPurchaser:
(i) instruments of transfer, in form and substance reasonably satisfactory to PEGC I OP, sufficient to transfer ownership of certificates representing the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted LiensShares, duly executed endorsed in blank or accompanied by such Contributor;
(ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing Date;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Date, stock powers duly endorsed in blank in proper form and substance reasonably satisfactory to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Datetransfer;
(ii) a certificate of status, compliance, good standing or like certificate with respect to the secretary, general partner or manager, as applicable, Company issued by the Province of each Contributed Company, dated as Alberta;
(iii) certified copies of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date charter documents and by laws of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); Company, (B) the by-laws (or comparable document) charter documents of such Contributed Company in effect as of the Closing Date; Seller and (C) all necessary resolutions of the shareholder and the board of directors of the Company approving the entering into and completion of the transactions contemplated by this Agreement and the Ancillary Agreements; [ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
(iv) a duly executed resignation, effective as at the Closing, of each director and officer of the Company as Purchaser may specify in writing at least three (3) Business Days prior to Closing;
(v) if applicable, the resolutions Argyll Road Employee Services Agreement, duly executed by Seller or one of its Affiliates;
(vi) if applicable, the Clover Bar Manufacturing Agreement, duly executed by Seller or one of its Affiliates;
(vii) if applicable, the Argyll Road Manufacturing Agreement, duly executed by Seller or one of its Affiliates;
(viii) the Non-Exclusive License Agreement, duly executed by Degussa;
(ix) evidence reasonably satisfactory to Purchaser of the directors or managers, as applicable, transfer of such Contributed Company authorizing legal title to the execution Retained Assets and performance of this Agreement Liabilities and the Ancillary Agreements assets, properties and liabilities comprising the Argyll Road Carve-Out; and
(x) a certificate of an officer or other authorized representative of each of Seller, Degussa and the TransactionsCompany certifying that the conditions set forth in Section 8.02(a) and Section 8.02(b) have been satisfied;
(b) Purchaser shall deliver to Seller:
(i) payment of the Closing Date Amount, by wire transfer of immediately available funds to a bank account designated in writing by Seller for such purpose (such designation to be made at least two (2) Business Days prior to the Closing Date);
(ii) a certificate of status, compliance, good standing or like certificate with respect to Purchaser issued by the Secretary of State of the State of Delaware;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as if applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Argyll Road Employee Services Agreement, duly executed by the parties theretoCompany;
(viiiiv) a copy of if applicable, the PEGC I OP Amended and Restated Partnership Clover Bar Manufacturing Agreement, duly executed by PEGC I and PEGC I OPthe Company;
(ixv) a copy of an amendment to PEGC I’s bylawsif applicable, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements TerminationArgyll Road Manufacturing Agreement, duly executed by PEGC I and PEGC I OPthe Company;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xiivi) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name Non-Exclusive License Agreement, duly executed by PEGC Ithe Company; and
(xvvii) a certificate of an officer or other authorized representative of Purchaser certifying that the other documents required to be delivered by PEGC I OP pursuant to Article VIIconditions set forth in Section 8.03(a) and Section 8.03(b) have been satisfied [ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, duly executed by PEGC I OP.MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
(dc) PEGC I OP shall also (x) deliver to Purchaser shall, on behalf of the Escrow Agent Company, repay the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing Intercompany Debt in accordance with instructions the payoff letter provided by the Contributor Representative together with Seller to Purchaser at least five (5) Business Days prior to the Closing OP Unit Consideration EstimateDate.
Appears in 1 contract
Transactions to be Effected at the Closing. At the Closing:
(a) Each Contributor Seller shall deliver, deliver or cause to be delivered by the Contributors’ Representative, to PEGC I OPPurchaser:
(i) instruments of transfer, in form and substance reasonably satisfactory to PEGC I OP, sufficient to transfer ownership of certificates representing the Contributed Equity Interests set forth opposite the name of such Contributor Seller on Exhibit A heretoA, to PEGC I OPaccompanied by transfer powers duly endorsed in blank in proper form for transfer, free and clear of all Liens other than Permitted Lienswith appropriate transfer tax stamps, duly executed by such Contributorif any, affixed;
(ii) if such Contributor is not an individual, a “good standing” certificate of good standing of such Contributor certified by for the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing Date;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Date, in form Companies and substance reasonably satisfactory to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed CompanyCompany Subsidiary, and a copy of the certificate Certificate of incorporation Incorporation and all amendments thereto (or comparable document) of the Companies and all amendments thereto of each Contributed CompanyCompany Subsidiary, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten five (105) Business Days before the Closing Date;
(iiiii) the Conversion Documentation duly executed by Sellers and All Risks;
(iv) the Internal Revenue Service Forms 8832 for All Risks and ICS contemplated by Section 8.01(f)(1) (Conversion) duly executed by Sellers;
(v) a certificate of the secretary, general partner or manager, as applicable, an officer of each Contributed Company, dated as of the Closing Date, Companies in form and substance reasonably satisfactory acceptable to PEGC I OP, Purchaser attaching and certifying as to: (A) no amendments to the certificate of incorporation (or comparable document) organizational documents of such Contributed Company since the date and each Company Subsidiary that is a Subsidiary thereof;
(vi) each Ancillary Agreement, if any, to which it is a party;
(vii) written resignations of such officers and directors of the certificate delivered Companies and the Company Subsidiaries as have been requested by Purchaser at or prior to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect Closing, effective as of the Closing Date; and (C) if applicable, the resolutions which resignations shall not constitute a termination of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactionsemployment);
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (Bviii) a certification of non-foreign status of each Contributorsuch Seller, in form and substance reasonably satisfactory to PEGC I OPPurchaser, in accordance with Treasury Regulation Section § 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy evidence that the Companies have obtained (and paid in full all premiums on) an extended reporting period endorsement under the Companies’ existing directors’ and officers’ liability insurance coverage for the Companies’ and Company Subsidiaries’ directors and officers that shall provide such directors and officers with coverage for the shorter of a PEGC I OP Amended (A) available coverage or (B) six (6) years following the Closing Date of not less than the existing coverage and Restated Partnership Agreementhave other terms not materially less favorable to the insured Persons than the directors’ and officers’ liability insurance coverage presently maintained, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party theretoany premiums with respect to such policy shall be Seller Transaction Expenses hereunder;
(x) evidence that the Companies have obtained (and paid in full all premiums on) an extended reporting period endorsement under the Companies’ existing errors and omissions liability insurance coverage and employment practices liability coverage, in each case with a copy claim reporting or discovery period the shorter of (A) available coverage or (B) six (6) years following the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability companyClosing Date of not less than the existing coverage, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability companyany premiums with respect to such policies shall be Seller Transaction Expenses hereunder;
(xi) copies evidence that the Companies have obtained (and paid in full all premiums on) an extended reporting period endorsements under the Companies’ existing cyber liability insurance coverage with a claim reporting or discovery period the shorter of each other Ancillary Agreement(A) available coverage or (B) six (6) years following the Closing Date of not less than the existing coverage, duly executed by and the Contributors’ Representative and other applicable parties theretoaggregate of premiums with respect to such endorsements shall be considered the “Cyber Premium Amount”;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;Identified Long-Term Incentive Plans Spreadsheet; and
(xiii) evidencesuch other documents relating to existence and authority, absence of Liens, and such other customary matters as Purchaser or its counsel may reasonably request.
(b) Purchaser shall deliver to Sellers’ Representative:
(i) payment, by wire transfer to a bank account designated in a form reasonably satisfactory writing by Sellers’ Representative (such designation to PEGC I OPbe made at least two (2) Business Days before the Closing Date), of immediately available funds an amount equal to (A) the assignment of Purchase Price minus (B) the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L Cortezi Rollover Amount (the “PECO Name License AgreementClosing Date Amount”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow each Ancillary Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreementif any, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OP.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 1 contract
Sources: Equity Purchase Agreement (Ryan Specialty Group Holdings, Inc.)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties to this Agreement:
(a) Each Contributor The Seller and/or the Company Group, as applicable, shall deliver, deliver or cause to be delivered by to the Contributors’ Representative, to PEGC I OPBuyer:
(i) instruments a certificate, dated as of the Closing Date, of an executive officer or other authorized person of each member of the Company Group certifying that (A) such member of the Company Group has previously made available to the Buyer a complete and correct copy of such member of the Company Group’s Organizational Documents, as amended to date, (B) attached thereto is a complete and correct copy of the resolutions adopted by the governing body of the Seller as the sole member of each member of the Company Group authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Seller and such member of the Company Group is a party and the consummation of the transactions contemplated hereunder and thereunder, and (C) such Organizational Documents, resolutions, approvals and consents have not been amended or modified in any respect and remain in full force and effect as of the Closing Date;
(ii) certificates representing the Company Interests of 5 Star, Higher Power and Python, free and clear of all Encumbrances (other than restrictions on future transfers arising under the Securities Act and applicable state securities Laws), duly endorsed in blank or accompanied by unit powers duly endorsed in blank in proper form for transfer;
(iii) evidence, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, sufficient to transfer ownership of the Contributed Interests set forth opposite resignations or removal of the name managers and officers of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed by such Contributor;
(ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified the Company Group requested by the Secretary of State of the jurisdiction of organization of Buyer, such entity, dated as of a date within ten (10) Business Days before the Closing Date;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner resignations or manager, as applicable, of such Contributor, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required removal to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification effective concurrently with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b)Closing;
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by IRS Form W-9 from the Contributors’ RepresentativeParent;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP the Seller and the Escrow Agent;
(ivvi) a copy of the Tax Protection Transition Services Agreement, duly executed by PEGC I and PEGC I OPthe Seller;
(vvii) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer each of the ExecutiveKey Employees;
(viiviii) a copy of the Services Restrictive Covenant Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP▇▇▇▇▇▇▇;
(ix) a copy good standing certificate for each member of an amendment the Company Group from the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of its organization, dated no earlier than ten (10) Business Days prior to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I BoardClosing Date;
(x) a copy of the Legacy Agreements TerminationPayoff Letters, duly executed by PEGC I the applicable holders of Closing Indebtedness to be paid at Closing, and PEGC I OP;
the Buyer any other applicable releases, termination statements or other similar documentation (xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (bextent not included in the Payoff Letters), in form and substance reasonably satisfactory to the Contributors’ RepresentativeBuyer, releasing and terminating any and all Encumbrances (other than Permitted Encumbrances) relating to Indebtedness of the Company Group for borrowed money;
(xi) proof of filing of the CTB Election to the IRS, including the duly stamped certified mail receipt received in connection with such filing and an executed by PEGC I OP;copy of such CTB Election, in each case, reasonably satisfactory to the Buyer; and
(xii) a written consent, in form and substance reasonably acceptable to the Buyer, from each of the third parties set forth on Schedule 2.2(a)(xii); and
(xiii) evidence such other agreements, consents, documents, instruments and writings as are reasonably satisfactory to requested by the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required Buyer to be delivered by PEGC I OP the Seller or the Company Group pursuant to Article VII, duly executed by PEGC I OPthis Agreement or otherwise reasonably required to consummate the transactions contemplated hereby.
(db) PEGC I OP The Buyer shall also pay or deliver or cause to be paid or delivered (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.as applicable):
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Mammoth Energy Services, Inc.)
Transactions to be Effected at the Closing. At or prior to the Closing, the following transactions shall be effected by the parties to this Agreement:
(a) Each Contributor The Sellers shall deliver, deliver or cause to be delivered by to the Contributors’ Representative, to PEGC I OPBuyer:
(i) instruments the Pre-Closing Statement as required by Section 2.3(a);
(ii) certificates representing the Target Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer or, if any of the Target Shares are not certificated, stock or other appropriate powers duly endorsed in proper form for transfer;
(iii) evidence, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, sufficient to transfer ownership of the Contributed Interests set forth opposite resignations or removal (without payment of compensation) of the name members of the Board of Directors (or similar governing body) and officers of the Target Entities and the Company Subsidiaries as requested by the Buyer in writing at least five (5) days prior to the Closing, such Contributor on Exhibit A hereto, resignations or removal to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed by such Contributorbe effective concurrently with the Closing;
(iiiv) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing Date;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Dateduly executed certificate, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, as to the resolutions from Bushnell US of non-foreign status in a form and manner that complies with Section 1445(b)(2) of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements Code and the TransactionsTreasury Regulations thereunder;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, the Transition Services Agreement duly executed by such Contributor.the Sellers;
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(ivi) a certificate of good standing for each Contributed Company, and a copy of from the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing DateSellers, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, as to: (Acertifying that the conditions set forth in Sections 8.1(a) no amendments to the certificate of incorporation (or comparable documentand 8.1(b) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managershave been satisfied, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, Escrow Agreement duly executed by the parties theretoSellers;
(viii) a copy certificate of the PEGC I OP Amended Secretary or Officer of each of the Sellers, dated as of the Closing Date, certifying (A) the organizational documents of the Sellers and Restated Partnership Agreementthe Target Entities; (B) the incumbency of each officer of the Sellers and the Target Entities executing this Agreement or the Transaction Documents and any other agreement, duly executed by PEGC I document or instrument contemplated hereby or thereby and PEGC I OP(C) the written authorization of the directors (or equivalent) of the Sellers and the Target Entities approving this Agreement and the Transaction Documents and all other agreements and documents contemplated hereby and thereby;
(ix) to the extent such entity is organized in the U.S., certificates of the Secretaries of State (or other applicable office) in which the Sellers, the Target Entities and the Company Subsidiaries is organized, dated as of a copy of an amendment date not more than five (5) Business Days prior to PEGC I’s bylawsthe Closing Date, in substantially the form attached hereto certifying as Exhibit I to its good standing (the “Bylaw Amendment”if applicable), duly authorized by the PEGC I Board;
(x) a copy counterpart of each Transaction Document to which the Legacy Agreements TerminationSellers, the Target Entities or the Company Subsidiaries are party, duly executed by PEGC I and PEGC I OPsuch Person;
(xi) a copy of each any applicable releases, termination statements or other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b)similar documentation, in form and substance reasonably satisfactory to the Contributors’ RepresentativeBuyer, duly executed by PEGC I OP;releasing and terminating any and all Encumbrances relating to Indebtedness of the Target Entities or the Company Subsidiaries for borrowed money; and
(xiiixii) evidence any documentation in form and substance reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP Buyer necessary to effect the transfer of the shares in Bushnell Japan.
(b) The Buyer shall have assumed make or deliver or cause to be made or delivered:
(i) on the Closing Indebtedness on Schedule 1.03(c)(xiii)Date, the following payments:
(A) to the Sellers, the Estimated Purchase Price less the Escrow Amount, by wire transfer of immediately available funds to the bank account(s) designated in writing by the Sellers to the Buyer at least five (5) Business Days prior to the Closing Date;
(xivB) to the Escrow Agent, the Escrow Amount, by wire transfer of immediately available funds in accordance with the terms of the Escrow Agreement; and
(C) the Estimated Transaction Expenses, which shall be sent by the Buyer to the Persons entitled thereto by wire transfer of immediately available funds in accordance with wire instructions provided by the Sellers to the Buyer at least five (5) Business Days prior to the Closing Date.
(ii) a certificate from the Buyer, in form and substance reasonably satisfactory to the Sellers, certifying that the conditions set forth in Sections 8.2(a) and 8.2(b) have been satisfied;
(iii) the Transition Services Agreement duly executed by the Buyer; and
(iv) a copy of the PECO Name License Agreement, Escrow Agreement duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OPBuyer.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 1 contract
Transactions to be Effected at the Closing. At On or prior to the ClosingClosing Date, the following transactions shall be effected by the parties to this Agreement:
(a) Each Contributor The Seller Representative and/or the Company, as applicable, shall deliver, deliver or cause to be delivered by to the Contributors’ Representative, to PEGC I OPBuyer:
(i) instruments a certificate, dated as of transferthe Closing Date, of the Secretary or executive officer of the Company certifying that (A) the Company has previously made available to Buyer a complete and correct copy of all of the Company’s and the Company Subsidiaries’ Organizational Documents, as amended to date, (B) attached thereto is a complete and correct copy of the resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Company is a party and the consummation of the transactions contemplated hereunder and thereunder, and which shall include the authorization for the termination, exercise and/or vesting, as applicable, of all Company Options and Company RSUs in accordance with the terms of any Company Plans or other similar arrangements, including the Company Stock Plan and (C) such Organizational Documents, resolutions, approvals and consents have not been amended or modified in any respect and remain in full force and effect as of the Closing Date;
(ii) certificates representing the Company Shares, free and clear of all Encumbrances (other than restrictions on future transfers arising under the Securities Act and applicable state securities Laws), duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer (it being acknowledged and agreed that such certificates and stock powers may be delivered in pdf form with originals delivered to Buyer within thirty (30) days of the Closing Date);
(iii) a certificate from an officer of the Company, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, sufficient to transfer ownership of certifying that the Contributed Interests conditions set forth opposite the name of such Contributor on Exhibit A heretoin Sections 8.1(a) and 8.1(b) have been satisfied, to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed by such Contributoras applicable;
(iiiv) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing Date;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Dateevidence, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, as to the resolutions of the directors, general partner resignations or managers, as applicable, removal of such Contributor authorizing all of the execution members of the Board of Directors (or similar governing body) and performance officers of this Agreement, the Ancillary Agreements Company that are not employees of the Company and the TransactionsCompany Subsidiaries as requested by the Buyer, such resignations or removal to be effective concurrently with the Closing;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) evidence of all applicable releases, termination statements or other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Datesimilar documentation, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, as to: releasing and terminating any and all Encumbrances (other than Permitted Encumbrances) relating to Indebtedness of the Company or the Company Subsidiaries for borrowed money, including the forgiveness of the Company SBA Loan, in each case, in form and substance reasonably satisfactory to the Buyer;
(vi) (A) no amendments a statement, in form and substance reasonably satisfactory to the certificate of incorporation Buyer, that the Company is not, and has not been in the five (or comparable document5) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days years prior to the Closing Date, a "United States real property holding corporation" for purposes of Sections 897 and 1445 of the Code, in accordance a form and manner that complies with Treasury Regulation Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2B) the notification to the IRS described in Treasury Regulation Regulations Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentenceclause (i), in each case signed by a responsible corporate officer of such Contributed the Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b);
(ivvii) a copy of an escrow agreementthe Lock-Up Agreement, in substantially duly executed by each Seller;
(viii) the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Seller Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership the Employment Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I BoardCompany;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) spousal consent from the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b)applicable Sellers, in form and substance reasonably satisfactory to the Contributors’ RepresentativeBuyer;
(xi) a good standing certificate for the Company of the jurisdiction of its organization;
(xii) evidence that on or prior to the Closing Date, duly executed each Company Optionholder received from the Company written notice notifying each Company Optionholder that all outstanding Company Options were, as of the date of such notice, vested and exercisable, and providing each Company Optionholder with the opportunity to exercise all outstanding Company Options held by PEGC I OPsuch Company Optionholder prior to the Closing Date, which notice shall also provide that all Company Options that remain unexercised and outstanding immediately prior to the Closing Date shall be cancelled and terminated without any consideration paid therefor;
(xiii) evidence reasonably satisfactory that the Company Stock Plan, and all other similar Company Plans granting Equity Interests to the Contributors’ Representative that at Closing PEGC I OP shall any Persons, have assumed been terminated as of the Closing Indebtedness on Schedule 1.03(c)(xiii)Date;
(xiv) the Company Option Cancellation Agreements, duly executed by each of the Company Optionholders;
(xv) the Investor Questionnaire, duly executed by each Seller and any Company Optionholders who have duly converted their Company Options into Company Shares as of the Closing; and
(xvi) a digital copy of all contents of the PECO Name License Electronic Data Room that were made available to the Buyer or its Representatives, as of the day immediately preceding the Closing Date (which shall include, for the avoidance of doubt, all contents that were located in, or uploaded to, the Electronic Data Room and made available to the Buyer or its Representatives at any time prior to the Closing).
(b) The Buyer shall pay or deliver or cause to be paid or delivered:
(i) to the Sellers, the Estimated Aggregate Consideration, less the Escrow Amount, paid to each Seller in an amount corresponding to such Seller’s Pro Rata Percentage;
(ii) to the Escrow Agent, the Escrow Amount, in accordance with the terms of the Escrow Agreement;
(iii) to the Seller Representative, a certificate from an officer of the Buyer, in form and substance reasonably satisfactory to the Seller Representative, certifying that the conditions set forth in Sections 8.2(a) and 8.2(b) have been satisfied, as applicable;
(iv) to the Seller Representative, the Lock-Up Agreement, duly executed by PEGC Ithe Buyer;
(v) to the Seller Representative, the Escrow Agreement, duly executed by the Buyer; and
(xvvi) to the Sellers, certificates, dated as of the Closing Date, of the Secretary or executive officer of each of Buyer and Parent certifying that (A) attached thereto is a complete and correct copy of the resolutions adopted by the board of directors of Buyer and Parent authorizing the execution, delivery and performance of this Agreement and the other documents required Transaction Documents to be delivered by PEGC I OP pursuant to Article VIIwhich the Buyer and Parent is a party and the consummation of the transactions contemplated hereunder and thereunder, duly executed by PEGC I OP.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (yB) pay the Estimated Contribution Transaction Expenses at Closing such resolutions, approvals and consents have not been amended or modified in accordance with instructions provided by the Contributor Representative together with any respect and remain in full force and effect as of the Closing OP Unit Consideration EstimateDate.
Appears in 1 contract
Transactions to be Effected at the Closing. At or prior to the Closing, the following transactions shall be effected by the parties to this Agreement:
(a) Each Contributor The Seller and/or the Company, as applicable, shall deliver, deliver or cause to be delivered by to the Contributors’ Representative, to PEGC I OPBuyer:
(i) instruments of transfer, in form and substance reasonably satisfactory to PEGC I OP, sufficient to transfer ownership of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed Pre-Closing Statement as required by such ContributorSection 2.3(a);
(ii) if such Contributor is not an individualcertificates representing the Company Shares, a certificate of good standing of such Contributor certified duly endorsed in blank or accompanied by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing Datestock powers duly endorsed in blank in proper form for transfer;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ RepresentativeBuyer, of the resignations or removal of the members of the Board of Directors (or similar governing body) and officers of the Company and the Company Subsidiaries as requested by the Buyer in writing at least five (5) days prior to the Closing, such resignations or removal to be effective concurrently with the Closing;
(iv) a duly executed certificate, in form and substance reasonably satisfactory to the Buyer, from the Seller of non-foreign status in a form and manner that complies with Section 1445 of the Code and the Treasury Regulations thereunder;
(v) each Transaction Document to which the Seller, the Company or any of their respective Affiliates are a party, duly executed by PEGC I OPeach such party;
(xiiivi) evidence reasonably duly executed payoff and release, termination or other similar documentation, in form and substance satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed Buyer, releasing the Closing Company and the Company Subsidiaries from all Indebtedness and terminating any and all Encumbrances on Schedule 1.03(c)(xiiiany assets securing such Indebtedness (the “Payoff Letters”);
(xivvii) a copy certificate of good standing with respect to the Company and each Company Subsidiary issued by the relevant Governmental Authority of each of their respective jurisdictions of organization, in each case dated as of a date no earlier than 10 days prior to the date hereof;
(viii) a certificate dated as of the PECO Name License AgreementClosing Date, duly executed by PEGC Ian authorized officer of the Seller certifying as to: (A) the names and incumbency of each of the officers of the Seller executing this Agreement and any other Transaction Documents; (B) the Organizational Documents of the Seller; (C) the resolutions approving this Agreement and the Contemplated Transactions on behalf of the Seller; and
(xvix) a certificate dated as of the other documents required to be delivered by PEGC I OP pursuant to Article VIIClosing Date, duly executed by PEGC I OPan authorized officer of the Company certifying as to: (A) the names and incumbency of each of the officers of the Company executing this Agreement and any other Transaction Documents; (B) the Organizational Documents of the Company; and (C) the resolutions approving this Agreement and the Contemplated Transactions on behalf of the Company.
(db) PEGC I OP The Buyer shall also make or deliver or cause to be made or delivered:
(xi) deliver the following payments:
(A) to the Escrow Agent the Escrowed Consideration and (y) pay Seller, the Estimated Contribution Closing Payment, by wire transfer of immediately available funds to the bank account designated in writing by the Seller to the Buyer prior to the Closing Date;
(B) on behalf of the Company or applicable Company Subsidiary, the amounts payable to each counterparty or holder of Indebtedness identified on Schedule 2.2(b)(i)(B), in order fully to discharge such Indebtedness and terminate all applicable Encumbrances related thereto, which shall be sent by the Buyer to the Persons identified in, and in accordance with, the Payoff Letters;
(C) the Estimated Transaction Expenses at Closing (other than the Sale Bonuses), which shall be sent by the Buyer to the Persons entitled thereto by wire transfer of immediately available funds in accordance with wire instructions provided by the Contributor Representative together Seller;
(D) to the Company, the aggregate amount of the Sale Bonuses, by wire transfer of immediately available funds in accordance with wire instructions provided by the Seller; provided that, promptly following the Closing, the Company shall make payments to each Person in the amount set forth opposite such Person’s name on the Pre-Closing OP Unit Consideration EstimateStatement (less any applicable Taxes required to be deducted or withheld) utilizing the payroll system of the Company or the Company Subsidiaries, as applicable; and
(ii) to the Seller, each Transaction Document to which the Buyer is a party, duly executed by the Buyer.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At or prior to the Closing:
(ai) Each Contributor the Company shall file with the Secretary of State of the State of Delaware the Certificate of Merger;
(ii) the Company shall deliver to Buyer evidence of the consummation of the Redemption to the extent required pursuant to Section 2.4(a);
(iii) the Company shall deliver, or cause to be delivered by the Contributors’ Representativedelivered, to PEGC I OP:
Buyer (i) instruments of transfer, in form and substance reasonably satisfactory to PEGC I OP, sufficient to transfer ownership of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed by such Contributor;
(ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing Date;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(iiA) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, stating that the conditions set forth in form Section 6.1(a)(i), Section 6.1(a)(ii) and substance reasonably satisfactory to PEGC I OPSection 6.1(b) have been satisfied, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); and (B) the by-laws (or comparable document) a certificate of such Contributed Company in effect Red Topco, dated as of the Closing Date; and (C, stating that the conditions set forth in Section 6.1(a)(iii) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b)been satisfied;
(iv) the Company shall cause to be delivered to Buyer a copy of an escrow agreementcustomary solvency certificate, in the form of Exhibit C attached hereto, dated as of the Closing Date, from the chief financial officer of Red Topco confirming the solvency of Red Topco and the Red Store Entities, taken as a whole, as of the Closing Date;
(v) Buyer shall deliver to the Company a certificate of Buyer, dated as of the Closing Date, stating that the conditions set forth in Section 6.2(a) and Section 6.2(b) have been satisfied;
(vi) Buyer shall, on behalf of the Company, pay or cause to be paid the Debt Payoff Amount set forth in the Payoff Letter by wire transfer of immediately available funds to the account or accounts designated in the Payoff Letter;
(vii) Buyer shall, on behalf of the Company, pay or cause to be paid the portion of the Estimated Closing Transaction Costs (including any prepayments thereof) to the applicable recipients thereof in the amount set forth in the Estimated Closing Statement (which shall reflect the invoices delivered in accordance with Section 5.17), in each case by wire transfer of immediately available funds pursuant to written instructions provided to Buyer by the Company concurrently with the delivery of the Estimated Closing Statement;
(viii) each of Buyer and the Stockholders’ Representative shall execute and deliver, and shall cause the Escrow Agent to execute and deliver, the Escrow Agreement;
(ix) Buyer shall deliver or cause to be delivered to the Escrow Agent the Adjustment Escrow Amount;
(x) Buyer shall deliver or cause to be delivered to the Paying Agent cash in an aggregate amount equal to the Redemption Amount plus the Closing Merger Consideration;
(xi) Buyer shall, on behalf of the Company, cause the Paying Agent to pay to each Company Preferred Stockholder the applicable portion of the Redemption Amount, in each case, subject to compliance by such holder with the Redemption Notice and in accordance with the Consideration Allocation Schedule;
(xii) Buyer shall, on behalf of the Company, cause the Paying Agent to pay to each Company Common Stockholder whose Letter of Transmittal has been provided to Buyer by the Company at least three Business Days prior to the Closing Date the applicable portion of the Closing Merger Consideration, in each case, subject to compliance with Section 2.7 and in accordance with the Consideration Allocation Schedule; and
(xiii) the Company shall, and shall cause Smart & Final Stores LLC to, execute and deliver to Buyer the Shared Services Agreement substantially in the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G A (the “Services Agreement”).
(b) Notwithstanding anything set forth herein to the contrary, duly executed by to the parties theretoextent that any Company Entity is required to withhold Taxes on any portion of a payment to be made at the Closing to any current or former employee of a Company Entity or any of their Affiliates, such portion shall be paid to the applicable Company Entity at the Closing, and such Company Entity shall pay the applicable portion to the applicable individual through such Company Entity’s next regular payroll following the later of (i) the Closing Date and (ii) the date on which such amounts are otherwise due to be paid to the applicable employee (in each case, net of any applicable withholding Taxes);
(ixc) a copy Notwithstanding anything set forth herein to the contrary, subject to the actual payment by or on behalf of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy Buyer of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory amounts required to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according be paid to the steps Company Stockholders hereunder, none of Buyer, the Surviving Corporation or any of their respective Affiliates shall have any Liability to any Person for any payment made in accordance with the calculations set forth in the Plan of Reorganization has been completed;
(xv) each Consideration Allocation Schedule or any other payment made to or for the benefit of the documents and certificates required to be delivered Company Stockholders pursuant to this Section 6.17 in connection with 2.5 or Section 2.8 based on the issuance written instructions of the Title Policies;
Company (xvi) each of including with respect to any claim that the Debt Consents and Amendments on Consideration Allocation Schedule 1.03(b)(xvior such other written instruction is incomplete or inaccurate);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OP.
(d) PEGC I OP shall also (x) deliver Notwithstanding anything contained herein to the Escrow Agent contrary, to the Escrowed extent any Company Stockholder is party to a Co-Invest Promissory Note with respect to which there is an outstanding Co-Invest Promissory Note Balance, all Closing Merger Consideration and (yon an after-Tax basis) pay the Estimated Contribution Transaction Expenses at Closing otherwise payable to such Company Stockholder in accordance with instructions provided Section 2.4(b) shall be used to make a payment to the Company at such time as such Closing Merger Consideration would otherwise be payable to the applicable Company Stockholder in accordance with Section 2.7 in order to repay the applicable Co-Invest Promissory Note Balance under the applicable Co-Invest Promissory Note, which payment will be reflected in the Consideration Allocation Schedule and effected by the Contributor Representative together Paying Agent through (A) a reduction of the Closing Merger Consideration (on an after-Tax basis) otherwise payable to such Company Stockholder by an amount equal to the applicable Co-Invest Promissory Note Balance as of the time of such payment, and (B) (i) a payment of such amount to the Company by the Paying Agent on such Company Stockholder’s behalf in full satisfaction of the applicable Co-Invest Promissory Note Balance simultaneously with the payment to the applicable Company Stockholder of the remaining portion of the Closing OP Unit Merger Consideration Estimateotherwise payable to such Company Stockholder in accordance with Section 2.4(b), and (ii) following such payment, the applicable Co-Invest Promissory Note shall be deemed terminated and of no further force or effect, and no Party shall have any further obligations thereunder.
Appears in 1 contract
Transactions to be Effected at the Closing. At the Closing:
(a) Each Contributor shall deliver, or cause Buyer will deliver to be delivered by the Contributors’ Representative, to PEGC I OPSeller:
(i) instruments the Purchase Price by wire transfer of transfer, immediately available funds to an account of Seller designated in writing by Seller to Buyer prior to the Closing; and
(ii) confirmation in form and substance reasonably satisfactory to PEGC I OP, sufficient to transfer ownership Seller that the aggregate net revenue of the Contributed Interests set forth opposite Company for the name month of such Contributor on Exhibit A hereto, December 2018 was no less than $650,000.
(b) Seller will deliver to PEGC I OPBuyer:
(i) a stock certificate evidencing the Shares, free and clear of all Liens other than Permitted LiensEncumbrances, duly executed endorsed in blank or accompanied by such Contributora stock power or other instrument of transfer duly executed;
(ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State as part of the jurisdiction Contribution and Distribution Transactions and simultaneously with the transfer of organization the Purchase Price to Seller, $400,000 by wire transfer of such entity, dated as of a date within ten (10) Business Days before immediately available funds to the Closing Dateaccount designated on Schedule 2.01(b)(ii);
(iii) if such Contributor is not an individual, a certificate intellectual property assignments for the transfer to the Company of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Date, trademarks set forth on Schedule 2.01(b)(iii) in form and substance reasonably satisfactory to PEGC I OP, as to Buyer and in proper form for filing with the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the TransactionsU.S. Patent Trademark Office;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, documentation in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in customary form and substance reasonably satisfactory to PEGC I OP, as to: Buyer to evidence the consummation of all other transactions that comprise the Contribution and Distribution Transactions;
(Av) no amendments to from the certificate senior lenders of incorporation (or comparable document) Seller documents reflecting the release of all Encumbrances held by such Contributed Company since the date lenders against any of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (Shares or comparable document) of such Contributed Company in effect as assets of the Closing Date; Company and releasing the Company as an obligor under the Seller’s credit facility described on Schedule 2.03(b)(v), in customary form and substance reasonably satisfactory to Buyer;
(Cvi) if applicable, certified copies of the resolutions of the directors or managers, as applicable, Board of such Contributed Company authorizing Directors of Seller approving the execution and performance of transactions contemplated by this Agreement and the Ancillary Agreements and the TransactionsAgreement;
(iiivii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) written resignations duly executed by the directors and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 officers of the Code; Company that are officers of Seller as set forth on Schedule 2.03(b)(vii);
(2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (Bviii) a certification of non-foreign status of each Contributor, Seller in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;A; and
(ix) a copy of a PEGC I OP Amended an accounts receivable report reflecting all outstanding accounts receivable and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy accounts payable of the Legacy Agreements TerminationCompany as of December 27, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto2018.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OP.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 1 contract
Transactions to be Effected at the Closing. At or prior to the Closing, the following transactions shall be effected by the Parties to this Agreement:
(a) Each Contributor The Sellers and/or the Company, as applicable, shall deliver, or cause to be delivered by the Contributors’ Representativedelivered, to PEGC I OPthe Buyer:
(i) instruments of transferevidence, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, sufficient to transfer ownership of the Contributed Interests set forth opposite records of the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed by such ContributorCompany Shares (in book-entry form);
(ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing Date;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Dateevidence, in form and substance reasonably satisfactory to PEGC I OPthe Buyer, of the resignations or removal of the members of the Board of Directors (or similar governing body) and officers of the Company and the Company Subsidiary as requested by the Buyer in writing at least five (5) days prior to the resolutions of the directorsClosing, general partner such resignations or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required removal to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of effective concurrently with the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the TransactionsClosing;
(iii) either (A) (1) a statement of each Contributed duly executed certificate from the Company, dated not earlier than twenty (20) days prior to stating that the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not beenbeen within the period described in Section 897(c)(1)(A) of the Code, a “United States real property holding corporation” for purposes of Sections 897 and 1445 pursuant to Section 1445(b)(3) of the Code; (2) Code and the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b)Regulations thereunder;
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) from each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP Sellers and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b)Company, in form and substance reasonably satisfactory to the Contributors’ RepresentativeBuyer, certifying that the conditions set forth in Sections 8.2(a), 8.2(b) and 8.2(c) have been satisfied, as applicable;
(v) any applicable releases, termination statements or other similar documentation, in form and substance reasonably satisfactory to the Buyer, releasing and terminating any and all Encumbrances (other than Permitted Encumbrances) relating to Indebtedness of the Company or the Company Subsidiary for borrowed money;
(vi) each of the Transaction Documents duly executed by the Sellers or the Company, as applicable;
(vii) a good standing certificate for the Company from the Secretary of State of the jurisdiction of its organization, dated no earlier than five (5) Business Days prior to the Closing Date; and
(viii) such other agreements, consents, documents, instruments and writings as are reasonably requested by the Buyer to be delivered by the Sellers or the Company pursuant to this Agreement or otherwise reasonably required to consummate the transactions contemplated hereby.
(b) The Buyer shall make or deliver, or cause to be made or delivered, to the Company and/or the Sellers, as applicable:
(i) subject to the limitations set forth in Section 2.3, to each Seller, in exchange for the Company Shares held by such Seller, such portion of the Closing Equity Consideration as set forth across from such Seller’s name on Exhibit A deliverable to such Seller;
(ii) to the Sellers, a certificate from the Buyer, in form and substance reasonably satisfactory to the Sellers, certifying that the conditions set forth in Sections 8.3(a) and 8.3(b) have been satisfied;
(iii) evidence, in form and substance reasonably satisfactory to Company, of the full payment and satisfactory performance of all obligations under the IP Promissory Note; and
(iv) to the Sellers, the Transaction Documents, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OPBuyer.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 1 contract
Transactions to be Effected at the Closing. At the Closing:
(a) Each Contributor Subject to and contingent upon the completion of the transactions contemplated in clauses (d) through (w) below, GP shall deliverdeliver to Newco certificates representing the Company Shares contributed to Newco pursuant to Section 2.1 above, or cause duly endorsed in blank in proper form for transfer, with appropriate transfer stamps, if any, affixed;
(b) Newco shall execute and deliver the PIK Notes to be delivered GP;
(c) Newco shall deliver to GP payment of the Closing Contribution Cash Consideration as provided in Section 2.1;
(d) GP shall deliver to the Buyer certificates representing the Newco Shares purchased by the Contributors’ RepresentativeBuyer pursuant to Section 2.1 above, to PEGC I OP:
(i) instruments of duly endorsed in blank in proper form for transfer, in form and substance reasonably satisfactory to PEGC I OPwith appropriate transfer stamps, sufficient to transfer ownership of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A heretoif any, to PEGC I OPaffixed, free and clear of all Liens other than Permitted Liens, duly executed by such Contributor;
(iie) if such Contributor is not an individual, the Buyer shall deliver to GP payment of the Newco Shares Cash Consideration as provided in Section 2.1;
(f) GP shall deliver to the Buyer a certificate signed by an authorized officer of GP stating that the conditions set forth in Section 8.1(a) have been satisfied;
(g) GP shall deliver to the Buyer copies of the certificates of good standing of such Contributor each of Newco, the Company and all of the Subsidiaries, certified on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of organization of each such entity, dated as of a date within ten (10) Business Days before the Closing DatePerson’s incorporation;
(iiih) if such Contributor is not an individual, GP shall deliver to the Buyer a certificate signed by an authorized officer of GP, with respect to each of Newco, the Company and all of the secretarySubsidiaries, general partner or manager, as applicable, of such Contributor, dated as of the Closing Date, in form and substance reasonably satisfactory with respect to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company Person since the date of the certificate delivered to PEGC I OP certified certificates of incorporation provided pursuant to Section 1.03(b)(i3.2(i); , (Bii) the by-laws (or comparable document) of such Contributed Company Person, (iii) in effect as the case of the Closing Date; each of Newco and (C) if applicableGP, the resolutions of the board of directors or managers, as applicable, of such Contributed Company Person authorizing the execution execution, delivery and performance of this Agreement and the Ancillary Agreements transactions contemplated hereby and (iv) in the Transactionscase of each of Newco and GP, incumbency and signatures of the officers of such Person executing this Agreement or any other agreement contemplated by this Agreement;
(iiii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior GP shall deliver to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) Buyer a copy of the Legacy Agreements Terminationcertificate of incorporation of each of Newco, duly executed the Company and the Subsidiaries certified as of a recent date by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLCthe Secretary of State of the state of incorporation of each of Newco, a Delaware limited liability company, the Company and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability companyeach of the Subsidiaries;
(xij) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.
(c) PEGC I OP GP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELPBuyer the stock ledgers, minute books and share certificates for each of Newco, the Cash ConsiderationCompany and all of the Subsidiaries;
(iik) GP shall deliver to PELP, the Estimated Adjusted OP Unit Consideration, less Buyer an opinion of its general counsel addressed to the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b)Buyer, in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OPBuyer;
(xiiil) evidence GP shall use commercially reasonable efforts as set forth in Section 7.3, to deliver to the Buyer the Real Estate Deliveries;
(m) GP shall deliver to the Buyer payoff letters and Lien releases for the Indebtedness of the Company and its Subsidiaries identified by the Buyer as being repaid as of the Closing;
(n) the Buyer shall deliver to GP a certificate signed by an authorized officer of the Buyer stating that the conditions set forth in Section 8.2(a) have been satisfied;
(o) the Buyer shall deliver to GP an opinion of its special counsel, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, addressed to GP, in form and substance reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii)GP;
(xivp) a copy each of Newco, GP and the PECO Name License Buyer shall enter into the Stockholders Agreement;
(q) each of Newco, duly executed by PEGC IGP and the Buyer shall enter into the Registration Agreement;
(r) each of GP, the Company and Newco shall enter into the Secured Liquidity Facility;
(s) each of GP and the Company shall enter into the Transition Services Agreement;
(t) each of GP and the Company shall enter into the Human Resources Agreement;
(u) each of GP and the Company shall enter into the IT Support Services Agreement;
(v) each of GP and the Company shall enter into the Insurance Agreement; and
(xvw) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OP.
(d) PEGC I OP GP shall also (x) deliver to the Escrow Agent Buyer certain life insurance policies originally purchased by Unijax and ▇▇▇▇▇ Paper Company as described in the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration EstimateHuman Resources Agreement.
Appears in 1 contract
Sources: Contribution and Stock Purchase Agreement (Georgia Pacific Corp)
Transactions to be Effected at the Closing. (a) At the Closing:
(a) Each Contributor , Seller shall deliver, or cause deliver to be delivered by the Contributors’ Representative, to PEGC I OPPurchaser:
(i) instruments counterparts of transfer, in form and substance reasonably satisfactory to PEGC I OP, sufficient to transfer ownership each of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted Liens, Related Documents duly executed by such Contributor;
(ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing Date;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLC, a Delaware limited liability company, and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability companyeach of the parties thereto other than Purchaser;
(xiii) copies evidence reasonably satisfactory to Purchaser of each the termination, effective as of the Closing, of any employment or other Ancillary Agreementsimilar Contracts between any Business Employee, duly executed by on the Contributors’ Representative one hand, and Seller, on the other applicable parties theretohand;
(xiiiii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance evidence reasonably satisfactory to PEGC I OP, duly executed by Purchaser that all Liens on the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, Business Assets have been terminated and released as of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate PartnersClosing; and
(xviiiiv) such documents as Purchaser may reasonably request relating to the existence of Seller and the Business Assets, and the authority of Seller to enter into and perform its obligations under this Agreement and of Seller to enter into and perform the other documents required Transaction Documents to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto.which they are parties; and
(cb) PEGC I OP At the Closing Purchaser shall, or shall deliver to cause the Contributors’ Representative (or to PELP as noted below):applicable Purchasing Affiliate to, deliver:
(i) to PELPSeller, payment, by wire transfer of immediately available funds to one or more accounts of Seller designated in writing by Seller (such designation to be made at least five Business Days prior to the Cash ConsiderationClosing Date), in an amount equal to the Purchase Price, minus the Escrow Amount;
(ii) to PELPthe Escrow Agent, an amount equal to [***] (the Estimated Adjusted OP Unit Consideration“Escrow Amount”), less by wire transfer of immediately available funds to the Escrowed Considerationaccount of the Escrow Agent designated in writing by the Escrow Agent (the “Escrow Account”);
(iii) a copy to Seller (and, in the case of the Escrow Agreement, Escrow Agent), duly executed by PEGC I OP and delivered counterparts of each of the Escrow Agent;Related Documents to which Purchaser or any of its Affiliates are a party; and
(iv) a copy to Seller, such documents as Seller may reasonably request relating to the existence of the Tax Protection Agreement, duly executed by PEGC I Purchaser (and PEGC I OP;
(vany Purchasing Affiliates) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary authority of PEGC I OP which will be Purchaser to enter into and perform its obligations under this Agreement and of Purchaser and each Purchasing Affiliate to enter into and perform the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement Transaction Documents to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OPthey are parties.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing:
(a) Each Contributor , Purchaser shall deliver, or cause deliver to be delivered by the Contributors’ Representative, to PEGC I OPSeller:
(i) instruments the Purchase Price by wire transfer of transfer, immediately available funds to an account designated in form and substance reasonably satisfactory writing by Seller to PEGC I OP, sufficient to transfer ownership of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other Purchaser no later than Permitted Liens, duly executed by such Contributor;
(ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) two Business Days before the Closing Date;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Date, in form and substance reasonably satisfactory prior to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the Transactions;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate certified resolution of the secretary, general partner or manager, as applicable, all Members of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company Purchaser authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ix) a copy of a PEGC I OP Amended and Restated Partnership Agreement, in substantially the form attached hereto as Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), duly executed by the Contributors and Contributed Companies party thereto;
(x) a copy of the Legacy Agreements Termination, duly executed by P▇▇▇Ro▇▇▇▇ ▇▇▇▇▇▇ NTR LLC▇, one of the Members of Purchaser, to enter into and consummate the transactions contemplated by this Agreement on behalf of Purchaser and certified Articles of Organization, together with a Delaware limited liability company, Good Standing Certificate issued by the State of California; and
(iii) a fully executed copy of the side letter by and P▇▇▇among the Company and Ro▇▇▇▇ ▇▇▇▇▇▇ & Company, Ltd., an Ohio limited liability company;
(xi) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate Partners; and
(xviii) the other documents required to be delivered by the Contributors’ Representative pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties thereto▇.
(cb) PEGC I OP At the Closing, Seller shall deliver to Purchaser the Contributors’ Representative (or to PELP as noted below):following:
(i) to PELPstock certificates evidencing the Shares, the Cash Considerationfree and clear of all Liens, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank with all required stock transfer tax stamps affixed thereto;
(ii) a certified resolution of the Board of Directors of Seller authorizing Seller to PELPenter into and consummate the transactions contemplated by this Agreement on behalf of Seller and certified Certificate of Incorporation and By-Laws of Seller, together with a Good Standing Certificate issued by the Estimated Adjusted OP Unit Consideration, less the Escrowed ConsiderationState of Delaware;
(iii) a copy certificate of non-foreign status satisfying the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;requirements of Treasury Regulations Section 1.1445-2(b); and
(iv) a copy written resignations dated as of the Tax Protection Agreement, duly executed by PEGC I Closing Date and PEGC I OP;
(v) copies effective as of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly Closing executed by the parties thereto;
(viii) a copy officers and directors of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment Company who are not to PEGC I’s bylaws, in substantially the form attached hereto continue as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy officers or directors of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed Company after the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OPDate.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, Buyer shall deliver or cause to be delivered:
(ai) Each Contributor to the Sellers, the portion of the Closing Payment to be paid to the Sellers under the terms hereof by wire transfer of immediately available funds to an account or accounts designated in writing by the Representative no later than three (3) Business Days prior to the Closing Date; and
(ii) to the Representative, all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 7.03 of this Agreement.
(b) At the Closing, the Sellers, the Representative or the Acquired Companies (or any one of them), as appropriate, shall deliver, deliver or cause to be delivered by the Contributors’ Representative, to PEGC I OPBuyer:
(i) instruments resignations, effective as of the Closing, of the officers, directors, managers (or similar corporate positions) of each Acquired Company (other than those officers, directors or managers as may be specified in writing by Buyer delivered to the Company prior to the Closing);
(ii) a completed and executed IRS Form W-9 from each Seller;
(iii) an assignment agreement duly executed by each Seller in favor of Buyer or Buyer’s designated Affiliate, evidencing the sale, transfer, assignment, conveyance and delivery of the Membership Interests held by such Seller to Buyer (or Buyer’s designated Affiliate), in form and substance reasonably satisfactory to PEGC I OP, sufficient to transfer ownership of the Contributed Interests set forth opposite the name of such Contributor on Exhibit A hereto, to PEGC I OP, free and clear of all Liens other than Permitted Liens, duly executed by such Contributor;
(ii) if such Contributor is not an individual, a certificate of good standing of such Contributor certified by the Secretary of State of the jurisdiction of organization of such entity, dated as of a date within ten (10) Business Days before the Closing Date;
(iii) if such Contributor is not an individual, a certificate of the secretary, general partner or manager, as applicable, of such Contributor, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to the resolutions of the directors, general partner or managers, as applicable, of such Contributor authorizing the execution and performance of this Agreement, the Ancillary Agreements and the TransactionsBuyer;
(iv) copies of each Ancillary Agreement to which such Contributor is a party, duly executed by such Contributor; and
(v) all other documents required to be delivered by such Contributor pursuant to Article VII, duly executed by such Contributor.
(b) The Contributors’ Representative shall (on behalf of the Contributors) deliver to PEGC I OP:
(i) a certificate of good standing for each Contributed Company, and a copy of the certificate of incorporation (or comparable document) and all amendments thereto of each Contributed Company, in each case certified by the Secretary of State of the jurisdiction of organization of such entity, each dated as of a date within ten (10) Business Days before the Closing Date;
(ii) a certificate of the secretary, general partner or manager, as applicable, of each Contributed Company, dated as of the Closing Date, in form and substance reasonably satisfactory to PEGC I OP, as to: (A) no amendments to the certificate of incorporation (or comparable document) of such Contributed Company since the date of the certificate delivered to PEGC I OP pursuant to Section 1.03(b)(i); (B) the by-laws (or comparable document) of such Contributed Company in effect as of the Closing Date; and (C) if applicable, the resolutions of the directors or managers, as applicable, of such Contributed Company authorizing the execution and performance of this Agreement and the Ancillary Agreements and the Transactions;
(iii) either (A) (1) a statement of each Contributed Company, dated not earlier than twenty (20) days prior to the Closing Date, in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), certifying that such Contributed Company is not, and has not been, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code; (2) the notification to the IRS described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding sentence, signed by a responsible corporate officer of such Contributed Company; and (3) an acknowledgment that PEGC I OP may cause such Contributed Company to file such notification with the IRS on or after the Closing Date; or (B) a certification of non-foreign status of each Contributor, in form and substance reasonably satisfactory to PEGC I OP, in accordance with Treasury Regulation Section 1.1445-2(b);
(iv) a copy of an escrow agreement, in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”), duly executed by the Contributors’ Representative;
(v) a copy of a tax protection agreement, in substantially the form attached hereto as Exhibit D (the “Tax Protection Agreement”), duly executed by the Contributors’ Representative;
(vi) copies of equityholder agreements, in substantially the form attached hereto as Exhibit E (the “Equityholder Supply Agreements”), duly executed by the individuals set forth on Schedule 1.03(b)(vi) (the “Lockup Parties”), as applicable;
(vii) copies of employment agreements, which substantially reflect the terms in the term sheets attached hereto as Exhibit F (the “Employment Agreements”), duly executed by the individual employees contemplated therein (each, an “Executive”), as applicable;
(viii) a copy of an asset management agreement, in substantially the form attached hereto as Exhibit G (the “Services Agreement”), duly executed by the parties thereto;
(ixv) a copy of a PEGC I OP Amended evidence that the Management Agreement has been terminated and Restated Partnership Agreement, ceases to be in substantially full force and effect in accordance with Section 6.13;
(vi) the agreements in the form attached hereto as of Exhibit H (the “PEGC I OP Amended and Restated Partnership Agreement”), C duly executed by the Contributors and Contributed Companies party applicable parties thereto, together with any other documents, agreements or instruments required to be executed in connection therewith, collectively evidencing the completion of the Restructuring effective as of prior to the Closing in accordance with Section 6.15;
(xvii) a copy payoff letters relating to the portion of Estimated Indebtedness (including all related instruments of discharge of Encumbrances securing such Indebtedness) to be repaid in accordance with Section 2.03(b), signed in each case by the Legacy Agreements Terminationapplicable financial institution(s) or agent representative(s) thereof (and, duly executed by P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NTR LLCin the case of any such instrument of discharge, a Delaware limited liability companyotherwise in final form for filing with applicable Governmental Authorities), and P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Companywith prior delivery of drafts of such materials in customary form having been received by, Ltd.and reasonably acceptable to, an Ohio limited liability company;
Buyer at least three (xi3) copies of each other Ancillary Agreement, duly executed by the Contributors’ Representative and other applicable parties thereto;
(xii) the certificate of the Contributors’ Representative contemplated by Sections 7.02(a) and (b), in form and substance reasonably satisfactory Business Days prior to PEGC I OP, duly executed by the Contributors’ Representative;
(xiii) evidence, in a form reasonably satisfactory to PEGC I OP, of the assignment of the Intercompany Notes;
(xiv) evidence, in a form reasonably satisfactory to PEGC I OP, that the pre-closing restructuring according to the steps set forth in the Plan of Reorganization has been completed;
(xv) each of the documents and certificates required to be delivered pursuant to Section 6.17 in connection with the issuance of the Title Policies;
(xvi) each of the Debt Consents and Amendments on Schedule 1.03(b)(xvi);
(xvii) a copy of a license agreement, in substantially the form attached hereto as Exhibit L (the “PECO Name License Agreement”), duly executed by PECO Real Estate PartnersClosing; and
(xviiiviii) the all other documents agreements, documents, instruments or certificates required to be delivered by the Contributors’ Representative Sellers at or prior to the Closing pursuant to Article VII, duly executed by the Contributors’ Representative and other applicable parties theretoSection 7.02 of this Agreement.
(c) PEGC I OP shall deliver to the Contributors’ Representative (or to PELP as noted below):
(i) to PELP, the Cash Consideration;
(ii) to PELP, the Estimated Adjusted OP Unit Consideration, less the Escrowed Consideration;
(iii) a copy of the Escrow Agreement, duly executed by PEGC I OP and the Escrow Agent;
(iv) a copy of the Tax Protection Agreement, duly executed by PEGC I and PEGC I OP;
(v) copies of the Equityholder Agreements, duly executed by PEGC I OP and/or an Affiliate of PEGC I OP;
(vi) copies of the Employment Agreements, duly executed by PEGC I OP and the subsidiary of PEGC I OP which will be the employer of the Executive;
(vii) a copy of the Services Agreement, duly executed by the parties thereto;
(viii) a copy of the PEGC I OP Amended and Restated Partnership Agreement, duly executed by PEGC I and PEGC I OP;
(ix) a copy of an amendment to PEGC I’s bylaws, in substantially the form attached hereto as Exhibit I (the “Bylaw Amendment”), duly authorized by the PEGC I Board;
(x) a copy of the Legacy Agreements Termination, duly executed by PEGC I and PEGC I OP;
(xi) a copy of each other Ancillary Agreement to which it is a party, duly executed by PEGC I OP;
(xii) the certificate of PEGC I OP contemplated by Sections 7.03(a) and (b), in form and substance reasonably satisfactory to the Contributors’ Representative, duly executed by PEGC I OP;
(xiii) evidence reasonably satisfactory to the Contributors’ Representative that at Closing PEGC I OP shall have assumed the Closing Indebtedness on Schedule 1.03(c)(xiii);
(xiv) a copy of the PECO Name License Agreement, duly executed by PEGC I; and
(xv) the other documents required to be delivered by PEGC I OP pursuant to Article VII, duly executed by PEGC I OP.
(d) PEGC I OP shall also (x) deliver to the Escrow Agent the Escrowed Consideration and (y) pay the Estimated Contribution Transaction Expenses at Closing in accordance with instructions provided by the Contributor Representative together with the Closing OP Unit Consideration Estimate.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Catalent, Inc.)