Deliveries at the Closing At the Closing, (i) Seller will deliver to Purchaser the various agreements, certificates, instruments, and documents referred to in Section 8.1 below; (ii) Purchaser will deliver to Seller the various certificates, instruments, and documents referred to in Section 8.2 below; (iii) Seller, and Intervener, where applicable, will execute, acknowledge (if appropriate), and/or deliver to Purchaser (A) a xxxx of sale substantially in the form attached hereto as Exhibit “A”, (B) a real estate limited warranty deed executed by 1245 Properties in substantially the form attached hereto as Exhibit “F” (C) an assignment of Intellectual Property rights in substantially the forms attached hereto as Exhibit “B”, (D) a counterpart of the shared services agreement in substantially the form attached hereto as Exhibit “C” (the “Shared Services Agreement”), (E) a Seller non-compete and non-solicitation agreement in substantially the form attached hereto as Exhibit “D”, (F) a counterpart to an assignment and assumption agreement in substantially the form attached hereto as Exhibit “E” (the “Assignment and Assumption”), (G) an assignment of each Real Property Lease in substantially the form of Exhibit “O” attached hereto, (H) to the extent required under Section 6.2(b), a counterpart to the management agreement in substantially the form attached hereto as Exhibit “R” and (I) such other instruments of sale, transfer, conveyance, and assignment as Purchaser and its counsel reasonably may request, including assignments of all domain names involved; (iv) Purchaser will execute, acknowledge (if appropriate), and deliver to Seller (A) a counterpart of the Assignment and Assumption, (B) a counterpart of the Shared Services Agreement, (C) to the extent required under Section 6.2(b), a counterpart to the management agreement in substantially the form attached hereto as Exhibit “R” and (D) such other instruments of assumption as Seller and its counsel reasonably may request; and (v) Purchaser will deliver to Seller the Purchase Price,
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.
Closing Deliveries by the Purchaser At the Closing, the Purchaser shall deliver to the Seller
(a) the Purchase Price by wire transfer in immediately available funds to a bank account in the United States to be designated by the Seller in a written notice to the Purchaser at least five (5) Business Days before the Closing;
(b) the certificate contemplated by Section 8.01(a); and
(c) such other documents and instruments reasonably requested by the Seller to consummate the transactions contemplated hereby.
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.
Seller’s Deliveries at Closing At the Closing and unless otherwise waived in writing by the Buyer, the Sellers shall deliver to the Buyer the following, each of which shall be in a form reasonably acceptable to the Buyer (collectively, "Sellers' Closing Documents"):
(a) The Bill of Sale, duly executed and notarized by XeQute;
(b) All Third Party Consents and the release of all Liens on the Assets by the Lien Holders, together with the Instruments of Assignment and Assumption, duly executed by XeQute;
(c) The Sellers' Officer's Certificates, duly executed on behalf of Vertex and XeQute;
(d) Certified copies of any resolutions required to duly authorize and approve the Contemplated Transaction and the execution, performance and delivery of this Agreement, Sellers' Closing Documents and of all of the other documents to be executed and performed by the Sellers in connection with the Contemplated Transaction;
(e) The duly executed opinion of the Sellers' counsel, dated as of the Closing Date and addressed to the Buyer ("Sellers' Opinion"), in form and substance as set forth in the form annexed to this Agreement as Exhibit C and subject to the standard exceptions set forth in Sellers' Opinion. In rendering Sellers' Opinion, the Sellers' counsel may rely upon certificates of governmental officials and may place reasonable reliance upon certificates of the Sellers; and
(f) Such other instrument and documents, as the Buyer and the Buyer's counsel reasonably deem necessary or desirable in order to consummate the Contemplated Transaction, including without limitation evidence of the Sellers having taken all steps required to be taken by them prior to or at Closing under Article VI and Article VII hereof, including evidence of having obtained directors and officers liability insurance with the coverage described therein and paid the premium for same at the Closing.
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.
Closing Deliveries by the Seller At the Closing, the Seller shall deliver or cause to be delivered to the Purchaser:
(a) the bring-down certificates referred to in Sections 3.5(a) and 3.5(b);
(b) a certificate signed by a senior officer of the Seller certifying (i) the articles and by-laws of the Seller, (ii) the resolution of the Seller's directors approving the subject matter of this Agreement and (iii) the signatures of the persons authorized to sign this Agreement and/or any of the documents contemplated herein on behalf of the Seller and certifying the genuineness of such signatures;
(c) a certificate of status (or equivalent) for the Seller issued within two (2) days prior to the Closing;
(d) all deeds, assignments, bills of sale and other conveyancing documents required to be executed and delivered by Seller or a Subsidiary of the Seller to transfer the various categories of Purchased Assets described in Section 2.1 and for the Purchaser to assume the Assumed Liabilities;
(e) a duly executed signature page to the Escrow Agreement;
(f) a duly executed signature page to the Non-Compete Agreement;
(g) a duly executed request form (kabunushi-meibo-meigi-kakikae-seikyusho) in the name of the Seller in order to register the Purchaser as the holder of the CCSC Shares on the shareholders book (kabunushi-meibo) of CCSC, a copy of the minutes of the shareholders book of CCSC showing that the Purchaser is the owner of the CCSC Shares as of the Closing Date duly certified by the representative director of CCSC and a copy of the minutes of the shareholders meeting of CCSC approving the transfer of the CCSC Shares from the Seller to the Purchaser duly certified by the representative director of CCSC;
(h) a duly executed signature page to the Transition Services Agreement;
(i) evidence of receipt of the Required Consents;
(j) possession of the Purchased Assets;
(k) a certificate duly executed by Seller, pursuant to treasury regulations section 1.1445-2(b), stating under penalties of perjury that Seller is not a foreign person within the meaning of Section 1445 of the Code;
(l) a properly executed IRS Form W-9 from Seller;
(m) evidence reasonably satisfactory to Purchaser that Seller has requested, to the extent available, a Tax clearance certificate, and to the extent not available, a certificate of good standing or certificate of no tax due, from the taxing authorities of Florida, Georgia, Illinois, Colorado, California, New Jersey and Pennsylvania; and
(n) such other stockholder approvals, Governmental Authority approvals, documents, instruments, certificates and other documents dated as of the Closing Date as are expressly required under the terms of this Agreement.
Closing Deliveries by the Company At the Closing, the Company shall deliver or cause to be delivered to the Purchaser:
(a) newly issued certificate(s) for 4,500,000 shares of the Series B Preferred Stock, issued to and registered in the name of the Purchaser and evidencing the Series B Preferred Stock being purchased hereunder;
(b) a receipt for the Purchase Price;
(c) a true and complete copy, certified by the Secretary of the Company, of the resolutions duly and validly adopted by the Board evidencing (i) its authorization of the execution and delivery of this Agreement and the consummation of the Transactions (including the entering into the Warrant Agreement and the Registration Rights Agreement) and the filing of the Certificate of Amendment with the Secretary of State of the State of Delaware and the issuance of the New Securities, and (ii) the Amended and Restated By-laws;
(d) a copy of (i) the Certificate of Incorporation, certified by the Secretary of State of the State of Delaware, as of a date not earlier than five Business Days prior to the Closing Date and accompanied by a certificate of the Secretary or Assistant Secretary or other authorized officer of the Company, dated as of the Closing Date, stating that no amendments, other 15 than the filing of the Certificate of Amendment, have been made to such Certificate of Incorporation since such date, and (ii) the By-laws, certified by the Secretary or Assistant Secretary of the Company;
(e) a good standing certificate for the Company from the Secretary of State of the State of Delaware dated as of a date not earlier than five Business Days prior to the Closing Date;
(f) a duly executed Warrant Agreement and a duly executed Warrant Certificate (as such term is defined in the Warrant Agreement), representing the Warrants and issued to the Purchaser;
(g) a duly executed Registration Rights Agreement;
(h) evidence of the termination of the Voting Agreement satisfactory to the Purchaser;
(i) executed Employment Agreements and Consulting Agreements;
(j) a duly executed amendment to the 2003 Stock Option Plan of the Company with respect to the Options Grant and evidence, satisfactory to the Purchaser, that the Options Grant has been made;
(k) duly executed Stock Option Agreements between the Company and Xxxxxx Xxxxxx, Xxxxxx Xxxxxx-Xxxxx, Xxxxxxx Xxxxxxx and Xx. Xxx Xxxxx Xxxxxxx;
(l) a legal opinion from the Company's U.S. counsel with respect to such matters as set forth in Exhibit G attached to this Agreement;
(m) a legal opinion from the Company's Russian counsel with respect to such matters as set forth in Exhibit H attached to this Agreement;
(n) duly executed resignations of Xxxxx Xxxxxxx, Xxxxxx XxXxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxxxx Vladislavlev and Xxxxxxx X. Xxxxx from the Board; and
(o) an officer's certificate of the Chief Executive Officer and Chief Financial Officer of the Company certifying the satisfaction of the conditions set forth in Sections 6.03(a) and (e) hereof.
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.