Deliveries by Sellers At the Closing, Sellers shall (or shall cause its Affiliates to) take each of the following actions:
(a) deliver to Purchaser the original share register (“aksjeeierbok”) of the Company with the Purchaser duly registered as owner of the Shares free and clear of any and all Encumbrances and a notice in accordance with Section 4-10 of the Norwegian Companies Act;
(b) deliver to Purchaser certified copies of the share registers or the share certificates, as the case may be, representing all shares owned by any Acquired Company in the Acquired Companies other than the Company (provided such share certificates should have been issued according to applicable law);
(c) deliver to Purchaser written resignations, in the agreed form, by each retiring board director and deputy board director elected by the shareholders in the Acquired Companies, including a confirmation from each such person that he has no claim against the relevant Acquired Company resulting from his position as board director or deputy board director;
(d) deliver to Purchaser a certified copy of the minutes of the board of directors of the Company containing the unconditional approval of the transfer of the Shares from the Sellers to the Purchaser; and
(e) deliver to Purchaser a certificate duly signed by the Sellers, following due inquiries with and assurances from the individuals set out in Section 1.3.4, that the Warranties and the Title and Capacity Warranties are true and accurate in all material respects as of the Closing Date.
(f) deliver to Purchaser an opinion or opinions of counsel for Sellers, in form and substance reasonably satisfactory to Purchaser, relating to the Warranties set forth in Sections 5.1 and 5.2 below;
(g) to the extent in the possession of the Sellers or any of their Affiliates (other than any of the Acquired Companies), the originals of any land certificates, charge certificates, leases, title deeds and other documents related to the real property of the Acquired Companies, as well as, to the extent in the possession of the Sellers or any of their Affiliates (other than any of the Acquired Companies), the originals of any licenses, consents, permits or authorizations obtained by or issued to any of the Acquired Companies, and any contracts or other agreements to which any Acquired Company is a party; and
(h) subject to Section 11.1.2(b), all elements of the Data Room remaining in the possession or control of counsel to Sellers.
Deliveries by Seller At the Closing, Seller shall deliver to Purchaser:
(a) a xxxx of sale in the form of Exhibit A hereto, duly executed by the Sellers, as applicable;
(b) an assignment and assumption agreement in the form attached hereto as Exhibit B hereto, duly executed by the Sellers, as applicable;
(c) an assignment and assumption of lease for each Leased Real Property in the form attached to this Agreement as Exhibit C, with such modifications as are necessary to properly describe such Leased Real Property (collectively, the “Lease Assignments”), duly executed by the applicable Sellers that holds the leasehold interest in such Leased Real Property;
(d) duly executed assignments of (i) the Patents and Trademarks, if any, in forms suitable for recording in the United States Patent and Trademark Office, and (ii) duly executed assignments of the copyright registrations and applications for copyright registration owned by Sellers that are included in Purchased Intellectual Property (if applicable);
(e) the officer’s certificate required to be delivered pursuant to Sections 10.1(a) and 10.1(b);
(f) a copy of all orders of the Bankruptcy Court pertaining to the transactions contemplated herein, including the Confirmation Order;
(g) a certificate duly executed by an officer of the Seller certifying that as of the Closing Date no appeal of or motion for stay, reargument, rehearing or reconsideration with respect to the Confirmation Order has been served on the Debtor or, based solely on a review of the online docket of the Chapter 11 Cases, has been filed;
(h) all consents or notices of third parties obtained or given by Sellers as of the Closing Date to the transfer of the Purchased Assets, if any; and
(i) all other instruments of conveyance and transfer, in form and substance reasonably acceptable to Purchaser, as may be necessary to convey the Purchased Assets to Purchaser and to allow the Purchaser to operate properties in which the Seller is currently operating.
Claim by Contractor After receipt of the Notice of Termination from the state, the Contractor shall submit any claim for additional costs not covered herein or elsewhere in the Contract within 60 days of the effective termination date, and not thereafter. Should the Contractor fail to submit a claim within the 60-day period, the State may, at its sole discretion, based on information available to it, determine what, if any, compensation is due the Contractor and pay the Contractor the determined amount.
Indemnity by Seller (a) The Seller shall indemnify the Administrative Agent, the Facility Agents, the Purchasers, the Support Providers and the XX Xxxxx and their respective assigns, officers, directors and employees (each, an “Indemnified Party”) against all liabilities, claims, damages, costs, expenses, or losses (“Losses”) associated with the Facility, excluding, however, (i) Losses to the extent resulting from the gross negligence or willful misconduct of the Indemnified Party or the Indemnified Party’s breach of contract under any Transaction Document or any document delivered pursuant to any of the Transaction Documents, (ii) recourse (except as provided in this Agreement) for uncollectable Receivables or (iii) Losses that are due to or relate to Taxes (which are addressed in Section 10.02). Without limiting the foregoing, the Seller shall indemnify the Indemnified Parties for all Losses resulting from:
(i) False or incorrect representations, warranties or certifications of any Xxxxxxxx Party in any Transaction Document or any document delivered pursuant to any of the Transaction Documents;
(ii) Failure by any Xxxxxxxx Party to comply with applicable law, rules or regulations related to the Receivables;
(iii) Failure to vest in the Administrative Agent (for the benefit of the Purchasers and the XX Xxxxx) a first priority perfected ownership or security interest in the Receivables, the Related Security and the Collections, free and clear of any Liens;
(iv) Failure to file, or delay in filing, any financing statements or similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the Receivables, the Related Security or the Collections;
(v) Any dispute, claim or defense of an Obligor (other than discharge in bankruptcy) to the payment of any Receivable including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid or binding obligation of such Obligor, or any other claim resulting from the sale of the goods or services related to such Receivable or the furnishing or failure to furnish such goods or services or relating to collection activities with respect to such Receivable or any Contract related thereto, or any adjustment, cash discount, warranty, rebate, return of product or cancellation with respect to such Receivable;
(vi) Failure by any Xxxxxxxx Party to perform any of their respective duties or other obligations or comply with any of their respective covenants under the Transaction Documents;
(vii) Any products liability, personal injury or damage suit, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Receivable;
(viii) Any third party investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby, or the use of proceeds of Purchases under this Agreement or the draw under any Letter of Credit, or in respect of any Receivable;
(ix) Commingling of Collections with any other funds of any Xxxxxxxx Party or any set-off against Collections by any credit card servicers;
(x) Third party claims arising from the Seller’s, any Originator’s or the Servicer’s administration of the Receivables;
(xi) The sale of any Receivable in violation of applicable Law;
(xii) Any setoff by any Obligor;
(xiii) Any Letter of Credit issued pursuant to this Agreement or the use of the proceeds thereof by the applicable beneficiary or any affiliate, agent, employee or assignee thereof;
(xiv) The failure of the Seller or any Originator to pay when due any sales, excise, business and occupation, property or other similar taxes payable in connection with the Receivables;
(xv) Any action or omission by any Xxxxxxxx Party which reduces or impairs the rights of the Administrative Agent, the Facility Agents, the Purchasers or the XX Xxxxx with respect to any Receivable and the Related Security and Collections with respect thereto or the value of any such Receivable and the Related Security and Collections with respect thereto;
(xvi) Any dispute, suit or claim arising out of any provision in any Contract restricting or prohibiting sale and assignment of the related Receivables;
(xvii) Overstatement of the balance of any Receivable due to provisions of the related Contract relating to retainage, data assumptions, cash on delivery sales, or bill and hold sales, or other similar provisions of comparable effect; and
(xviii) Any dispute, suit or claim arising out of the efforts to collect on a Reassigned Receivable. Except as set forth in Section 10.01(a)(xiv) above, all obligations of the Seller with respect to Taxes are addressed in Section 10.02.
Closing Deliveries by Seller At the Closing, Seller shall deliver to Buyer, in each case in form and substance reasonably satisfactory to Buyer:
(a) all such instruments of sale, assignment, conveyance and transfer, as the parties agree are customary and reasonably necessary to assign and transfer the Shares to Buyer;
(b) a certificate, dated the Closing Date, executed by Seller, as required by Section 7.01;
(c) a certificate, duly completed and executed by Seller pursuant to Treasury Regulations Section 1.1445-2(b)(2) certifying that Seller is not a “foreign person” within the meaning of Section 1445 of the Code, and a validly completed and duly executed IRS Form W-9 from each Person receiving funds pursuant to Section 2.02(b);
(d) a certificate of the Secretary of the Company, dated the Closing Date, as to (i) the good standing of the Company in its jurisdiction of organization; (ii) the completeness and lack of amendments to the Organizational Documents; and (iii) the effectiveness of any resolutions of such Company passed in connection with this Agreement and the transactions contemplated hereby;
(e) the written consents of the third Persons, as set forth on Section 3.02(e) of the Disclosure Schedule, with respect to the change of control of the Company that will occur upon the consummation of the transactions contemplated by this Agreement and/or any deemed assignment of any Contract that will result therefrom (and all such consents and waivers shall be in full force and effect);
(f) payoff letters for the Repaid Indebtedness to the effect that, upon receipt of payment under such payoff letters, the lender shall have been paid in full for such Repaid Indebtedness and any Liens relating thereto shall be released;
(g) resignations, effective as of the Closing Date, of the directors and officers of the Company, as requested by Buyer at least three (3) Business Days prior to the Closing;
(h) the organizational record books, minute books and company seal of Company;
(i) a release in the form of Exhibit A, effective as of the Closing Date, duly executed by Seller;
(j) a certificate, dated the Closing Date, executed by Seller, setting forth (i) the aggregate balances of cash and cash-equivalents of the Company as of the Closing after the Estimated Pre-Closing Tax Obligation has been determined (the “Retained Cash”), and (ii) the aggregate balance of the Repurchase Reserve; and
(k) all other documents required to be entered into by Seller pursuant to this Agreement or reasonably requested by Buyer to convey the Shares or to otherwise consummate the transactions contemplated by this Agreement.
Indemnification by Sellers Subject to the other terms and conditions of this ARTICLE 10 and the terms and conditions set forth in ARTICLE 13, Sellers, severally and not jointly (pro rata in accordance with the portion of the Purchase Price received by each Seller), shall indemnify, defend, reimburse and hold harmless Buyer, its Affiliates, successors and assigns and the respective officers, directors, employees, attorneys, agents and stockholders of the foregoing (the “Buyer Indemnified Parties”) from and against any and all Losses incurred or sustained by, or imposed upon, such Buyer Indemnified Party based upon, arising out of, with respect to, relating to or by reason of:
(a) any inaccuracy in or breach of any of the representations or warranties of Sellers contained in ARTICLE 2 hereunder or the Company in ARTICLE 3, provided that no Seller shall have any obligation hereunder with respect to any inaccuracy in or breach of any of the representations and warranties of any other Seller;
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Sellers pursuant to this Agreement;
(c) any Company Transaction Expenses or Indebtedness outstanding as of the Closing to the extent not paid or satisfied by the Company or Sellers at or prior to the Closing;
(d) any Taxes for the Pre-Closing Tax Period (including the pre-Closing portion of any Straddle Period) to the extent not included in the computation of Company Transaction Expenses or Closing Net Working Capital (collectively, “Pre-Closing Taxes”), to the extent that such Taxes have not been reimbursed under a claim made under the R&W Insurance Policy; or
(e) any of the matters set forth on Section 10.1(e) of the Buyer Disclosure Schedule. Any claims arising out of clauses (b), (c), (d), or (e) of this Section 10.1 are referred to herein as “Excluded Claims.”
Claims by Third Parties The obligations and liabilities of an indemnifying party under any provision of this Agreement with respect to claims relating to third parties shall be subject to the following terms and conditions:
(a) Whenever any indemnified party shall have received notice that a claim has been asserted or threatened against such indemnified party, which, if valid, would subject the indemnifying party to an indemnity obligation under this Agreement, the indemnified party shall promptly notify the indemnifying party of such claim in the manner described in Paragraph 22; provided, however, that the failure of the indemnified party to give timely notice hereunder shall not relieve the indemnifying party of its indemnification obligations under this Agreement unless, and only to the extent that, such failure caused the damages for which the indemnifying party is obligated to be greater than they would have been had the indemnified party given timely notice.
(b) The indemnifying party or its designee will have the right but not the obligation, to assume the defense of any claim described in Paragraph 6 or 7 above, provided, however, the indemnified party shall have the right at its option to defend and to compromise or settle such claim which compromise or settlement shall be made only with the written consent of the indemnifying party, such consent not be unreasonably withheld. If the indemnifying party fails to assume the defense of such claim within 15 days after receipt of notice of a claim pursuant to Paragraph 22, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such claim at any time prior to settlement, compromise or final determination thereof and provided, however, that the indemnified party shall not enter into any such compromise or settlement without the written consent of the indemnifying party. In the event the indemnified party assumes defense of the claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall not be liable for any settlement of any action effected without its consent, but if settled with the consent of the indemnifying party or if there be a final judgment beyond review or appeal, for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any loss or liability by reason of such settlement or judgment. Any party who does not undertake the defense of a claim may, at its own expense, retain such additional attorneys and other advisors as it shall deem necessary, which attorneys and advisors will be permitted by the party undertaking such defense, and its attorneys, to observe the defense of such claim.
By Sellers Sellers covenant and agree to defend, indemnify and hold harmless Purchaser, its Affiliates and the officers, directors, employees, agents, advisers and representatives of each such Person (collectively, the "Purchaser Indemnitees") from and against, and pay or reimburse the Purchaser Indemnitees for, any and all claims, liabilities, obligations, losses, fines, costs, royalties, proceedings, deficiencies or damages (whether absolute, accrued, conditional or otherwise and whether or not resulting from third party claims), including out-of-pocket expenses and reasonable attorneys' and accountants' fees incurred in the investigation or defense of any of the same or in asserting any of their respective rights hereunder (collectively, "Losses"), resulting from or arising out of:
(i) any inaccuracy of any representation or warranty made by any Seller herein, or in any certificate delivered by an officer of any Seller pursuant hereto (a "Seller Certificate") or in any Collateral Agreement or in connection herewith or therewith;
(ii) any failure of any Seller to perform any covenant or agreement hereunder or under any Collateral Agreement or fulfill any other obligation in respect hereof or of any Collateral Agreement;
(iii) any and all Retained Liabilities or Retained Assets;
(iv) any and all Taxes (other than payroll Taxes) of any Seller and all Affiliates thereof relating to or arising out of the Business accruing, or with respect to any event or time period occurring, at or prior to Closing; and
(v) any and all liabilities in respect of employees of Seller or its Affiliates or Plans except to the extent assumed by Purchaser pursuant to Section 4.3. Cap on Sellers' Indemnification Obligations. Sellers' obligation to indemnify Purchaser Indemnitees pursuant to this Agreement, any Seller Certificate or any Collateral Agreement for breaches or inaccuracies of representations or warranties, and for breaches or failures to perform covenants or agreements or to fulfill any other obligations set forth in this Agreement (except for (x) the Seller Surviving Covenants, and (y) solely to the extent expressly contemplated by this Section 8.9(a), the Environmental Covenants (as defined in this Section 8.9(a))), in any Seller Certificate or in any Collateral Agreement, shall not exceed the amount of funds held in the Escrow Account at the time such claims
Indemnity by Buyer Buyer shall release, indemnify and hold harmless Seller, its directors, officers, agents, and representatives against and from any and all loss, Claims, actions or suits, including costs and attorney’s fees resulting from, or arising out of or in any way connected with the Product delivered by Seller under this Agreement after the Delivery Point, including any loss, Claim, action or suit, for or on account of injury to, bodily or otherwise, or death of persons, or for damage to or destruction of property belonging to Buyer, Seller, or others, excepting only such loss, Claim, action or suit as may be caused solely by the willful misconduct or gross negligence of Seller, its Affiliates, or Seller’s and Affiliates’ respective agents, employees, directors or officers.
Deliveries by Buyer Prior to or on the Closing Date, Buyer shall deliver to Seller the following, in form and substance reasonably satisfactory to Seller and its counsel:
