Closing and Deliveries 10 4.1 Closing.......................................................................................10
Closing and Delivery The purchase price for the Purchased Units is payable by check or wire transfer payable to the Company or its designee in an amount equal to the applicable purchase price per unit multiplied by the number of Units being purchased by such Subscriber.
Closing Actions On the Closing Date, the following actions have to be taken by the Parties, either jointly or separately, and Parties shall procure that the Company provides the respective documents, as the case may be, which shall be taken simultaneously (Zug um Zug):
(a) delivery by Sellers to Purchaser of bank statements showing the Cash of the Company as of the Closing Date;
(b) delivery by Sellers of copies of resignation letters from the following persons or of a shareholders’ resolution removing the following persons from the supervisory board of the Company, effective prior to or at Closing:
(i) Dr. Nedim Cen as member of the supervisory board of the Company;
(ii) Xx. Xxxxxxx X. Feldt as member of the supervisory board of the Company;
(iii) Mr. Michael El-Hillow as member of the supervisory board of the Company;
(iv) Xx. Xxxxx Xxxxxxx as member of the supervisory board of the Company;
(v) Xx. Xxxxx Xxxxxx as member of the supervisory board of the Company; and
(vi) Mr. Xxxx Xxxxxxxx as member of the supervisory board of the Company;
(c) delivery by Sellers of a copy of the shareholders’ resolution of the Company regarding the discharge from liability (Entlastung) of the persons in Section 4.4(b) for the fiscal year 2009 and the period from 1 January 2010 until the effectiveness of their resignation or, as the case may be removal as supervisory board members;
(d) delivery by the Company of a confirmation by fax from the Company’s bank that the debt referred to in Section 3.2(b) has been settled by Seller 3;
(e) payment by Purchaser of the Purchase Price to the Sellers in cash;
(f) payment of the Purchaser’s Cash Contribution less an amount equal to the amount of the Bank Debt that remains outstanding upon Closing, but in any case payment of not less than the portion of Purchaser’s Cash Contribution as described in Section 4.2(a)(iii) (sub-sentence (iii)) to the Company’s Bank Account;
(g) [****] (the “Sellers’ Cash Contribution”)];
(h) payment by the Company in full of the Seller 3 Royalty Claims to the Seller 3 Bank Account;
(i) delivery by the Company to Sellers and Purchaser of a confirmation by fax from the Company’s bank evidencing that the payment set forth in Section 4.4(f) has been credited to the Company’s Bank Account;
(j) delivery by the Company to Sellers and Purchaser of a confirmation by fax from the Company’s bank evidencing that the Sellers’ Cash Contribution has been credited to the Company’s Bank Account;
(k) delivery by Seller 3 of a fax confirmation from its bank that a payment in the amount of the Seller 3 Royalty Claims has been credited to the Seller 3 Bank Account;
(l) at the request of Purchaser, either (i) execution by Sellers of an unconditional and irrevocable waiver of all their claims, including payment claims regarding the loan amount and any accrued interest, under the Shareholder Loans and any other claims of Sellers against the Company, but only if and to the extent as specified in Exhibit 4.4(l) (together the “Sellers’ Claims”), or (ii) sale, assignment and transfer of the Sellers’ Claims by Sellers to an Affiliate of Purchaser for a purchase price of [****];
(m) execution by Sellers and Purchaser of a share transfer agreement regarding the Sold Shares, substantially in the form as attached hereto as Exhibit 4.4(m) and transfer and delivery of Share Certificates by way of endorsement (Indossament) to Purchaser;
(n) notification by Purchaser to the Company of the change of ownership in the Sold Shares, and entering of Purchaser in the Company’s share register; and
(o) confirmation by the Parties in writing that the Closing Conditions have been fulfilled or waived, all actions to be taken on the Closing Date under this Section 4.4 have been taken or waived in accordance with this Agreement and that as a consequence thereof the Sold Shares have been transferred to Purchaser (the “Closing Confirmation”).
Closing Deliverables (a) At the Closing, the Company will deliver or cause to be delivered to OmniLit:
(i) a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled (the “Company Closing Certificate”);
(ii) evidence reasonably satisfactory to the OmniLit that the requirements set forth in Section 3.4 have been fulfilled;
(iii) the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 2.6), effective as of the Effective Time;
(iv) a certificate of the secretary of the Company certifying the resolutions of the board of directors of the Company approving and authorizing the execution, delivery and performance of this Agreement and its Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby (together with an incumbency and signature certificate regarding the officer(s) signing on behalf of the Company);
(v) the Registration Rights Agreement, duly executed by the Major Company Stockholders who have elected to execute the Registration Rights Agreement;
(vi) the Sponsor Support Agreement, duly executed by an officer of the Company; and
(vii) a Certificate of Good Standing for the Company from the Secretary of State of the State of Delaware;
(viii) a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the IRS prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).
(b) At the Closing, OmniLit will deliver or cause to be delivered:
(i) to the Exchange Agent, the number of shares of OmniLit Post-Merger Class A Common Stock equal to the portion of the Aggregate Merger Consideration to be paid to holders of Company Common Stock for further distribution to the Company’s stockholders pursuant to Section 3.2, provided, that, for the avoidance of doubt, such shares shall be delivered immediately following the effectiveness of the OmniLit Post-Merger Charter;
(ii) to the Company, a certificate signed by an officer of OmniLit, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled (the “OmniLit Closing Certificate”);
(iii) to the Company, the Registration Rights Agreement, duly executed by duly authorized representatives of OmniLit and the Sponsor;
(iv) the Sponsor Support Agreement, duly executed by the Sponsors (as defined therein) and an officer of OmniLit; and
(v) to the Company, the written resignations of all of the directors and officers of OxxxXxx and Mxxxxx Sub (other than those Persons identified as the initial directors and officers, respectively, of OmniLit after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, OmniLit shall pay or cause to be paid by wire transfer of immediately available funds, without duplication, (i) (A) the OmniLit Transaction Expenses as set forth on OmniLit Transaction Expenses Certificate, and (B) any amounts outstanding under any Working Capital Loans, and (ii) the Company Transaction Expenses as set forth on Company Transaction Expenses Certificate; provided, that any Company Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Tasks and Deliverables A description of and the schedule for each task and deliverable, illustrated by a Xxxxx chart. Start and completion dates for each task, milestone, and deliverable shall be indicated. Must include deliverables specified in SOW-RFP as well as other deliverables that may be proposed by Contractor.
Post-Closing Actions Each Borrower agrees that it will, or will cause its relevant Subsidiaries to, complete each of the actions described on Schedule 9.13 as soon as commercially reasonable and by no later than the date set forth in Schedule 9.13 with respect to such action or such later date as the Administrative Agent may reasonably agree.
Post-Closing Deliverables (a) Within ten (10) days of the Closing Date, Seller and/or Seller’s Affiliates shall give any notices required to be given under the Material Contracts in connection with the consummation of the Transaction and shall further provide to Purchaser at Closing with true and complete copies of such notices. From and following the date of this Agreement, Seller and the Company shall use commercially reasonable efforts to (i) obtain any consents or authorizations required under the terms of the Material Contracts in connection with the consummation of the Transaction and (ii) prepare the documents to be executed pursuant to Section 2.2(e) as required under the terms of the Material Contracts in connection with the consummation of the Transaction. If, as of Closing (i) any notice has not been given or any authorization or consent has not been obtained under the terms of the Contracts included in the Assets (including as may be required under the terms of the Assumed Contracts in connection with the consummation of the Transaction) or (ii) any conveyance or assignment documents required to vest title to all Owned Real Property and easements in the Company have not been executed prior to Closing, in each case other quitclaim deeds with respect to Owned Office Properties as specifically required to be delivered at Closing in accordance with Section 2.2(e), notwithstanding anything in this Agreement to the contrary, such failure shall not give rise to any right to indemnification under Article IX.
(b) Seller shall (i) for twelve (12) months following the Closing Date, use commercially reasonable efforts to, as and when requested by Purchaser, give any notice that has not been given or obtain any authorization or consent that has not been obtained prior to the Closing that is required under the terms of the Contracts included in the Assets (including as may be required under the terms of the Assumed Contracts in connection with the consummation of the Transaction) and (ii) as soon as practicable following Closing (but no more than 90 days following Closing), deliver to Purchaser an accurate list and description of all Owned Real Property and execute and deliver to Purchaser all real estate conveyance documents required to vest title to all Owned Real Property and easements in the Company (to the extent not previously delivered at Closing). Following Closing, until such required notices are given or such required consents are obtained or such documents are executed, Seller agrees to enter into a commercially reasonable alternative arrangement to provide (and cause its Affiliates to provide, as applicable), the Company and Purchaser’s Affiliates with the benefits (e.g., in respect of any applicable Sign Location Lease, the right to operate the Structures on the property covered thereby) to which such notice or consent relates, including by enforcing at the written request of Purchaser (and at Purchaser’s sole cost and expense) any of the rights under such Contract (including the right of termination); and to the extent the Company (or Purchaser’s Affiliate) receives such benefits (or Seller enforces any rights under such Contract at Purchaser’s written request), Purchaser shall be responsible for the performance of the Seller’s obligations thereunder, at Purchaser’s sole cost and expense, acting in good faith and in the ordinary course of business. If within the twelve (12) month period following the Closing Date (aa) either Party (or their Affiliates) receives written notice from a landowner or counterparty (or counsel for the landowner or counterparty) purporting to terminate a particular Sign Location Lease which is a Material Contract or a Bus Transit Contract, as a result of the failure to obtain a consent required by the terms of such lease or Bus Transit Contract, or (bb) any such landlord or counterparty files suit (or initiates arbitration, if applicable) against either Party (or their respective Affiliates) seeking termination of the applicable Sign Location Lease or Bus Transit Contract, as a result of the failure to obtain a consent required by the terms of such lease or Bus Transit Contract, or (cc) any such landowner or counterparty requires payment of a material sum or some other material concession from the Company in exchange for any such required consent (and in the case of a demand for a material sum of money, where Seller elects to not pay such amount upon request of the Company), then in each such instance, the Company or Purchaser may within ten days following the expiration of such twelve month period (or such later period as provided below) by written notice to Seller either (i) elect to relinquish all of its right, title and interest in and to such Sign Location Lease or Bus Transit Contract, as applicable (and any Assets solely related thereto), to Seller, in which case the Purchaser shall be entitled to a payment from Seller in an amount equal to that portion of the Purchase Price allocable to such item or asset, which shall be based on a multiple equal to the product of 7.1 times net revenues less site lease expense for calendar year 2014; or (ii) elect to retain such rights over the item or asset, in which case there would be no such payment to the Company or Purchaser, as applicable; provided, however, that (x) Purchaser shall upon request by Seller, assist and cooperate with Seller in effecting the commercially reasonable alternative arrangement referred to above and in obtaining the applicable required consent, and (y) before Purchaser shall have the right to exercise its rights under subpart (i) above, Seller shall have the right (at Seller’s sole cost) to defend any such action by a landlord or counterparty and/or to negotiate a settlement and/or cure any alleged breach of the applicable lease or Bus Transit Contract and so long as Seller is diligently doing so, Seller shall have until the expiration of the following periods to cure or settle such matter (i) if Purchaser is still permitted to operate at such location during the pendency of such matter, until such matter is finally adjudicated or (ii) if Purchaser is not permitted to operate at such location during the pendency of such matter and Seller elects not to replace the lost net cash flow at such location during the pendency of such matter, a two (2) month period from the date Purchaser is first not able to operate at such location (provided, further, that, in the case of both (i) and (ii) above, if Purchaser in good faith determines that the Company or Purchaser’s applicable Affiliate could reasonably be expected to be subject to liability to such landlord or counterparty by continuing to operate such asset, Purchaser may require that Seller confirm in writing to Purchaser Seller’s duty to defend and indemnify Purchaser with respect thereto, including but not limited to damages for trespass, where applicable). Purchaser acknowledges that failure to timely notify Seller of such an election in accordance with the foregoing shall be deemed an acceptance by Purchaser of such Sign Location Lease or Bus Transit Contract, as applicable and related Assets and a relinquishment of any right to payment from Seller. For the avoidance of doubt, any amounts that may become due to Purchaser (or the Company) under this paragraph shall not be subject to the limitations set forth in Section 9.2(c).
(c) As soon as practicable following the Closing (but no later than 90 days following Closing), Seller shall deliver to Purchaser Outdoor Advertising Permit transfer documents as are required to validly and fully transfer and assign all such Permits to the Company (or Purchaser’s designated Affiliate).
Pre-Closing Actions As promptly as practicable, each Warrantor shall: (a) use best efforts to take all actions required of such party and to do all other things reasonably necessary, proper or advisable to consummate the transactions contemplated under the Transaction Documents; (b) file or supply, or cause to be filed or supplied, all applications, notifications and information required to be filed or supplied by such Warrantor pursuant to Law in connection with the Transaction Documents and the issuance of the Subscription Shares pursuant hereto and the consummation of the other transactions contemplated under the Transaction Documents; (c) use reasonable best efforts to obtain, or cause to be obtained, all consents (including any consents required under any Contract) necessary to be obtained by such party in order to consummate the transactions contemplated pursuant to the Transaction Documents; and (d) coordinate and cooperate with the other Parties in exchanging such information and supplying such assistance as may be reasonably requested by the other Parties in connection with any filings and other actions to be made or taken in order to consummate the transactions contemplated pursuant to the Transaction Documents.
Closing; Delivery (a) The purchase and sale of the Series C-1 Preferred Stock by the Investors and the issuance of the Series C-2 Warrants shall take place at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxxx Xxxxxx, San Francisco, California 94105 at 10:00 a.m., on the date of this Agreement, or such other date, time or place as the Company and the Investors mutually agree upon, orally or in writing following satisfaction of the conditions in Section 4 (which time and place are designated as the “Closing”), upon the physical or electronic exchange among the parties and their counsel of all documents and deliverables required under this Agreement; provided, however, that if the Closing does not occur on or before November 17, 2011, this Agreement shall terminate in its entirety, provided further that in the event this Agreement terminates, the Prior Agreement shall be reinstated in its entirety and shall be in full force and effect.
(b) At the Closing, the Company will deliver to each Investor purchasing Series C-1 Preferred Stock a certificate registered in such Investor’s name representing the number of Series C-1 Preferred Stock that such Investor is purchasing against payment of the purchase price therefor, by (a) delivery of a bank cashier’s check payable to the Company, (b) wire transfer to the Company in accordance with the Company’s written instructions, (c) cancellation of indebtedness owed by the Company to the Investor, or (d) any combination of the foregoing or any other consideration agreed upon by the Company. In the event that payment by an Investor is made, in whole or in part, by cancellation of indebtedness, then such Investor shall surrender to the Company for cancellation at the Closing any evidence of indebtedness or shall execute an instrument of cancellation in form and substance acceptable to the Company. The shares of Series C-1 Preferred Stock issued to the Investors pursuant to this Agreement shall be hereinafter referred to as the “Stock.” The Stock, the Series C-2 Warrants, the Warrant Stock, and the Common Stock issuable upon conversion of the Stock shall be hereinafter referred to as the “Securities.”
Closing Deliveries (a) At the Closing, the Blackstone Entities shall deliver or cause to be delivered to the NBCU Entities:
(i) duly executed counterparts of the Partners’ Agreement, substantially in the form attached hereto as Exhibit A;
(ii) duly executed counterparts of the Loan Agreement, substantially in the forms attached hereto as Exhibits C-1;
(iii) the certificates contemplated by Section 5.2(a)(iii);
(iv) payment by wire transfer, to an account designated by NBC Universal in writing no less than three days prior to the Closing Date, of the Guarantee Fee; and
(v) all other documents, instruments and writings required to be delivered by the Blackstone Entities pursuant to this Agreement and such other documents, instruments and writings as counsel for the Blackstone Entities and the NBCU Entities mutually agree to be reasonably necessary to consummate the transactions described herein.
(b) At the Closing, the NBCU Entities shall deliver or cause to be delivered to the Blackstone Entities:
(i) duly executed counterparts of the Partners’ Agreement, substantially in the forms attached hereto as Exhibit A;
(ii) counterparts of the Loan Agreement, as duly executed by XX Xxxxxx, and the Guarantee Agreement, as duly executed by NBC Universal, substantially in the forms attached hereto as Exhibits C-1 and C-2;
(iii) the certificates contemplated by Section 5.3(a)(iii);
(iv) payment by wire transfer, to (A) accounts designated by and (B) in the proportion designated by, the Blackstone Entities in writing no less than three days prior to the Closing Date, of the Fee Loan; and
(v) all other documents, instruments and writings required to be delivered by the NBCU Entities pursuant to this Agreement and such other documents, instruments and writings as counsel for the Blackstone Entities and the NBCU Entities mutually agree to be reasonably necessary to consummate the transactions described herein.
