Closing Deliveries by Seller At the Closing, Seller will deliver, or cause to be delivered, to Purchaser the following:
(a) the officer’s certificate required to be delivered pursuant Section 8.1(a) and Section 8.1(b);
(b) the Instrument of Assignment, duly executed by Seller;
(c) original executed counterparts of the unanimous shareholder or other applicable equity holder resolutions of each Entity (which will at the Closing also be executed by the Purchaser), approving:
(i) the resignations, effective as of the Closing Date, of the directors (or equivalent) of each Entity, expressly releasing, effective as of the Closing Date, the respective Entity, the Seller and the Purchaser from any and all claims and actions arising out of their services as a director (other than claims for indemnity or insurance), and themselves obtaining a full release from the Entities and the Purchaser from any and all claims and actions (except for those resulting from fraud, bad faith and/or willful misconduct) resulting from the due performance of their respective duties as directors;
(ii) the appointment of new directors (or equivalent) of the respective Entity as determined by Purchaser; and
(iii) the revocation of all powers of attorney in existence as of the Closing (except for those identified by Purchaser in writing no later than five Business Days prior to the Closing Date) and the granting of powers of attorney to the Persons determined by Purchaser.
(d) executed resignations of the directors (or equivalent) and officers, solely in their capacity as directors (or equivalent) or officers, as applicable, of each Entity other than those directors (or equivalent) and officers specified by Purchaser to Seller no later than the second Business Day prior to the Closing as exempt from this requirement (the “Resigning Individuals”);
(e) the Transition Services Agreement, duly executed by the Company and the other parties thereto;
(f) the Amendment to Trademark Sublicense Agreement, duly executed by NII Holdings and the Company;
(g) the amendments and releases, duly executed by each applicable party, referred to in Section 3.5 or Section 7.8;
(h) customary pay-off letters duly executed by CDB and reasonably satisfactory to Purchaser (the “Pay-Off Letters”) confirming that, upon receipt by the party or parties identified therein of the Pay-Off Amount, the CDB Credit Facilities shall have been paid in full and all Encumbrances provided thereunder shall have been released;
(i) originals of the Corporate Records (which may be delivered at the Company’s principal executive offices) together with a certificate issued by each Entity’s and Company Parent’s secretary certifying that the Corporate Records of the applicable Entity or Company Parent comply in all material respects with applicable Laws;
(j) the original share certificates or evidence of other equity interests, as applicable (where required by applicable Law) of each applicable Entity reflecting the capital structure set forth in Section 5.5(a) of the Seller Disclosure Schedule;
(k) a certified copy of the Sale Order, as entered by the Bankruptcy Court;
(l) an executed agreement between Company Parent and Seller, in form and substance reasonably satisfactory to Purchaser, effecting the Seller Liability Assumption and Company Parent Novation (as defined in the Sale Order);
(m) evidence reasonably satisfactory to Purchaser that (i) the Uruguay Divestiture has been consummated and (ii) the requirements of Section 8.1(d) and Section 8.1(e) have been satisfied;
(n) an executed original termination letter of trust agreement number F115/2000 (the “Mifel Trust”) duly executed by Banca Mifel, S.A., in its capacity as trustee thereunder and by all the settlors/beneficiaries thereunder certifying that the Mifel Trust has been duly terminated releasing all parties thereunder from any and all liability in connection therewith;
(o) any releases reasonably requested by Purchaser pursuant to, and copies of customary corporate documents effecting the netting, contribution or distribution contemplated by, Section 3.5; and
(p) each of the Section 7.8 Terminations and, to the extent obtained as of the Closing Date, each of the Section 7.8 Instruments and Third Party Consents, in each case, executed and delivered by each party thereto.
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, or cause to be delivered, to Buyer, with respect to each Specified Business, such bills of sale, instruments of assumption and other instruments or documents, in form and substance reasonably acceptable to Seller and Buyer, as may be reasonably necessary to effect, in each case in accordance with the terms of this Agreement (x) the assumption by Buyer of the Assumed Liabilities Related to such Specified Business and (y) the conveyance, transfer and assignment to Buyer of the Transferred Assets Related to such Specified Business, including the following:
(a) a duly executed counterpart of one or more Bills of Sale;
(b) a duly executed counterpart of one or more Assignment and Assumption Agreements;
(c) a duly executed counterpart of one or more Transferred Investment Assignment Agreements;
(d) a duly executed counterpart of one or more Intellectual Property Assignment Agreements;
(e) a duly executed counterpart of one or more Lease Assignment Agreements;
(f) a duly executed counterpart of one or more Sublease Assignment Agreements;
(g) a duly executed counterpart of one or more Rights-of-Way Assignment Agreements;
(h) special warranty deeds (or local equivalent) in respect of the Transferred Owned Real Property Related to such Specified Business;
(i) duly executed certifications from Seller and each Subsidiary that in this Transaction will be a transferor described in Treasury Regulations Section 1.1445-1(g)(3) that Seller and such Subsidiaries are not foreign Persons within the meaning set forth in Treasury Regulation Section 1.1445-2(b)(2)(iii)(A); it being understood that, notwithstanding anything to the contrary contained herein, if Seller fails to provide Buyer with such certifications, Buyer shall be entitled to withhold a portion of the Purchase Price in accordance with Section 1445 of the Code and the applicable Treasury Regulations;
(j) the Books and Records Related to such Specified Business that are Transferred Assets (it being understood that Books and Records located on real property interests conveyed to Buyer at the Closing shall be deemed delivered pursuant to this Section 2.10(j));
(k) evidence of the obtaining of, or, with respect to Seller Required Approvals that only require notice or filing, the notice or filing with respect to, the Seller Required Approvals or any LFA Approvals, in each case, Related to such Specified Business;
(l) the certificate to be delivered pursuant to Section 6.2(d);
(m) a certified copy of the Confirmation Order (including any amendments thereto);
(n) duly executed counterparts of instruments providing Buyer the limited, irrevocable right, in the name, place and stead of Seller and any of its Affiliates, as attorney-in-fact of Seller and any of its Affiliates, to cash, deposit, endorse or negotiate checks received on or after the Closing Date made out to Seller or any of its Affiliates in payment for cable television, high speed Internet, telephony and related services and charges provided by the Specified Systems Related to such Specified Business, and evidence of written instructions to the lock-box service provider or similar agents of Seller and any of its Affiliates to promptly forward to Buyer upon receipt all such cash, deposits and checks representing accounts receivable of such Specified Systems;
(o) to the extent available using commercially reasonable efforts, (i) subject only to Permitted Encumbrances, such certificates and affidavits of Seller or its applicable Affiliate as may be reasonably requested by Buyer’s title insurance company necessary and satisfactory to Buyer in connection with the issuance of title insurance with respect to any Owned Real Property or Leased Real Property Related to such Specified Business and (ii) customary gap indemnities covering Seller’s acts for the period between Closing and the recording of the applicable deed or assignment of lease with respect to such Owned Real Property or Leased Real Property; provided, that, except with respect to the customary gap indemnities described in clause (ii) above, such certificates or affidavits shall be deemed not to have been reasonably requested if they would increase, in each case other than in a de minimis manner, the Liability of Seller or any of its Affiliates beyond the liability that would be incurred by Seller or its applicable Affiliates under a special warranty deed or would contain representations that are more extensive than those set forth in this Agreement;
(p) the Transferred Cash Related to such Specified Business in immediately available funds by wire transfer to an account which has been designated by Buyer at least two Business Days prior to the Closing Date (it being understood that Transferred Cash shall be deemed delivered if it is either (i) located on real property interests being conveyed to Buyer at Closing or (ii) held in accounts assigned to Buyer pursuant to duly executed instruments of assignment that are reasonably satisfactory to Buyer);
(q) stock certificates (or other comparable evidence of ownership, if issued) representing the Transferred Investments Related to such Specified Business, duly endorsed for transfer or accompanied by executed stock transfer powers or other appropriate instruments of assignment and transfer;
(r) a duly executed counterpart of the Escrow Agreement; and
(s) duly executed counterparts of such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Buyer and Seller, as may be reasonably required to give effect to this Agreement.
Closing Deliveries by Buyer Buyer shall have delivered or caused --------------------------- to be delivered to Sellers:
(i) the Purchase Price to Sellers by wire transfer in immediately available funds to the accounts designated by Sellers;
(ii) a certificate of an officer of Buyer substantially in the form of Exhibit A attached hereto to evidence compliance with Section 5.1 --------- ----------- hereof;
(iii) an Assignment and Assumption Agreement by and among Buyer and Sellers substantially in the form of Exhibit B attached hereto (the --------- "General Assignment"), duly executed by Buyer as of the Closing Date;
(iv) a License Agreement by and between Buyer and the Company for the licensing by Buyer to the Company of certain Purchased Assets necessary for the AOBR operations of the Company, substantially in the form of Exhibit C to be attached hereto (the "License --------- Agreement"), duly executed by Buyer;
(v) an Independent Contractor Agreement by and between Buyer and Xxxxxxx for the transition of the Purchased Assets from the Company to Buyer (the "Independent Contractor Agreement"), which Independent Contractor Agreement shall be executed by Buyer and Xxxxxxx by no later than December 15, 1998;
(1) certified copies of the Certificate of Incorporation and Bylaws of COMPS and (2) certificate of good standing for COMPS issued by the appropriate governmental office of its state of incorporation and each state in which it is qualified to do business;
(vii) such other documents as Sellers may reasonably request for the purpose of facilitating the consummation of the transactions contemplated herein.
Purchaser Closing Deliveries No later than one (1) Business Day prior to the Closing Date (except for the balance of the Purchase Price which is to be delivered at the time specified in Section 2.2.4), Purchaser shall deliver to the Escrow Agent (for disbursement to the applicable Seller upon the Closing) the following items with respect to each Property being conveyed at such Closing:
(a) A title affidavit (or at Purchaser’s option an indemnity) pertaining to Purchaser’s activity on the applicable Property prior to Closing, in the customary form reasonably acceptable to Purchaser, to enable Title Insurer to delete the standard exceptions to the title insurance policy set forth in this Agreement (other than matters constituting any Permitted Exceptions and matters which are to be completed or performed post-Closing) to be issued pursuant to the Title Commitment; provided that such affidavit does not subject Purchaser to any greater liability, or impose any additional obligations, other than as set forth in this Agreement;
(b) Any declaration or other statement which may be required to be submitted to the local assessor with respect to the terms of the sale of such Property;
(c) A closing statement executed by Purchaser;
(d) A counterpart of the General Assignment, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable;
(e) A counterpart of the Leases Assignment, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable;
(f) A counterpart of the Tenant Notices, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable, to be delivered to the Tenants by Purchaser promptly following Closing;
(g) Resolutions, certificates of good standing, and such other organizational documents as Title Insurer shall reasonably require evidencing Purchaser’s or Purchaser Designated Entities’, as applicable, authority to consummate this transaction; and
(h) If applicable and only with respect to the Runaway Bay I, the Xxxxxx’x Pointe, and Xxxx Bridge Crossing Properties, the Loan Documents to be executed by Purchaser or Purchaser’s Designated Entity, as applicable.
Seller Closing Deliveries No later than 1 Business Day prior to the Closing Date, Seller shall deliver to Escrow Agent, each of the following items:
5.2.1 Special Warranty Deed (the "Deed") in the form attached as Exhibit B to Purchaser, subject to the Permitted Exceptions.
5.2.2 A Xxxx of Sale in the form attached as Exhibit C.
5.2.3 Two (2) originals of a General Assignment in the form attached as Exhibit D (the "General Assignment").
5.2.4 Two (2) originals of an Assignment of Leases and Security Deposits in the form attached as Exhibit E (the "Leases Assignment").
5.2.5 A letter in the form attached hereto as Exhibit F prepared and addressed by Purchaser, and countersigned by Seller, to each of the vendors under the Terminated Contracts informing them of the termination of such Terminated Contract as of the Closing Date (subject to any delay in the effectiveness of such termination pursuant to the express terms of each applicable Terminated Contract) (the "Vendor Terminations").
5.2.6 Seller's closing statement.
5.2.7 A title affidavit or an indemnity form reasonably acceptable to Seller, which is sufficient to enable Title Insurer to delete the standard pre-printed exceptions to the title insurance policy to be issued pursuant to the Title Commitment.
5.2.8 A certification of Seller's non-foreign status pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended.
5.2.9 Resolutions, certificates of good standing, and such other organizational documents as Title Insurer shall reasonably require evidencing Seller's authority to consummate this transaction.
5.2.10 An updated Rent Roll effective as of a date no more than 3 Business Days prior to the Closing Date; provided, however, that the content of such updated Rent Roll shall in no event expand or modify the conditions to Purchaser's obligation to close as specified under Section 8.1.
Seller’s Closing Deliveries Seller shall have delivered to Purchaser the following at Closing:
(a) the Assignment, the Bill xx Sale and other instruments of transfer to effectively assign, transfer and convey good and marketable title to the Purchased Assets as Purchaser shall reasonably request, in form and substance reasonably satisfactory to Purchaser;
(b) copies of the Records which Purchaser may reasonably request;
(c) a certified copy of Resolutions of the Board of Directors of Seller authorizing the execution, delivery and performance of this Agreement;
(d) a certificate of good standing of Seller from the Secretary of State of Georgia;
(e) evidence satisfactory to Purchaser that all Liens described on Schedule 5.3(a) herein have been removed or otherwise addressed to Purchaser's satisfaction;
(f) a list of the Accounts Receivable from all Customers (Reports 18A and 19A) and a list of the Unearned Revenue (Report 17), each as of the last NRTC billing period ending prior to the Closing Date;
(g) a certificate signed by Seller's president, dated the Closing Date, to the effect that the conditions set forth in this Article VIII have been satisfied;
(h) an opinion of Jamex X. Xxxx, Xx., Xxq., counsel to Seller, in form and substance reasonably acceptable to Purchaser;
(i) a certificate signed by Seller's president, dated the Closing Date, regarding the transfer of Seller's account at Huntington Bank;
(j) a Noncompetition Agreement with Seller substantially in the form attached hereto as Schedule 8.9; and
(k) such other documents and instruments as may be reasonably requested and satisfactory to Purchaser and its counsel in connection with Seller's satisfaction of each of its obligations hereunder.
Buyer Closing Deliveries At the Closing, Buyer shall deliver or cause to be delivered the following:
Closing; Closing Date Closing" and "Closing Date" have the meanings set forth in Section 5.3.
Closing Deliveries of Buyer At the Closing, Buyer shall deliver to Seller: ---------------------------
(a) A certificate of Buyer, dated as of the Closing Date, to the effect that the representations and warranties of Buyer contained in this Agreement (and the Schedules to be provided for Closing) are true and correct in all material respects and that Buyer has complied with or performed in all material respects all terms, covenants and conditions to be complied with or performed by Buyer on or prior to the Closing Date;
(b) A certificate, dated as of the Closing Date, executed by the Secretary of Buyer, certifying the Articles of Incorporation, Bylaws, incumbency and signatures of officers of Buyer and copies of Buyer's directors' and shareholders' resolutions approving and authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;
(c) A certificate, dated as of the Closing Date, executed by the Secretary of Sub, certifying the Articles of Incorporation and articles of amendment, bylaws, incumbency and signatures of officers of Sub and copies of Sub's directors' and shareholders' resolutions approving and authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;
(d) Books and records of Buyer and Sub;
(e) Documentation satisfactory to Seller evidencing the fact that the signatories on all relevant bank accounts of Buyer have been changed to signatories designated by Seller.
(f) A corporate resolution that will irrevocably instruct Pacific Stock Transfer about the exchange ratio representing the Preferred Shares issued as partial consideration hereunder and instructions to issue share certificates to the Shareholders in the appropriate amounts, including evidence of the share conditions attributable to the Preferred Shares. No Preferred Shares shall be issued until the Buyer shall have received a certificate for required number of Seller's Shares.
(g) Share certificates in the appropriate amount of Exchangeable Shares issued to the Shareholders. No Exchangeable Shares shall be issued until the Buyer shall have received a certificate for required number of Seller's Shares.
(h) Support Agreement, duly executed by the parties thereto;
(i) Exchange Trust Agreement, duly executed by the parties thereto;
(j) The documentation required for the Amalgamation of Seller and Sub;
(k) Resignations of any directors and officers of Seller and Sub, except Xxxx Xxxxxxx, in favour of nominees of the Buyer effective as of the Closing, as well as evidence of compliance with any regulatory requirements;
(l) Resolution of the shareholders approving the name change;
(m) Employment agreement with each of Xxxxx Xxxxxxx and Xxxxxxx Xxxxxxxxx, and evidence of regulatory compliance with the S-8 registration as set forth in Section 2.5 of this this Agreement;
(n) Legal opinion of Buyer's counsel opining as to due execution, corporate authority, current shareholdings, proper share issuances and regulatory matters; and
(o) Such other documents, at the Closing or subsequently, as may be reasonably requested by Seller as necessary for the implementation and consummation of this Agreement and the transactions contemplated hereby.
