Delivery of Escrow Funds Upon confirmation by Escrow Agent that the following conditions have been satisfied, Escrow Agent shall disburse the Escrow Funds to Recipient in connection with the closing of the purchase of the Property or other interest therein:
(a) Escrow Agent has confirmed that Recipient has sufficient funds to complete the purchase of, or acquisition of other interest approved by the Director in and to, the Property (the “Closing”) and to pay all costs, fees and expenses to be paid by Recipient with respect thereto as disclosed on the settlement statement prepared by Escrow Agent and signed by Recipient and Seller (the “Settlement Statement”).
(b) Upon recording of the Conveyance Instrument (as defined in subsection (d) of this Section 2), (i) Recipient will hold marketable title to the Property or (ii) if Recipient is acquiring an interest in the Property other than fee simple, as approved by the Director, Seller holds marketable title to the Property and has granted a valid interest in the Property to Recipient pursuant to the Contract.
(c) If the Contract requires, or Recipient has requested and agreed to pay for, a title insurance policy with respect to the Property (the “Title Policy”), Escrow Agent, as title insurer or agent therefor, is prepared to issue the Title Policy to Recipient.
(d) Escrow Agent is prepared to record, on the date of Closing, (i) the deed, or other instrument appropriate for the interest in the Property to be conveyed pursuant to the Contract, from Seller to Recipient with respect to the Property (the “Conveyance Instrument”), and (ii) the deed restrictions approved by the Director with respect to the Property (the “Deed Restrictions”).
(e) If Escrow Agent is an agent of a title insurance company, Escrow Agent has caused an insured closing letter to be issued to OPWC by such title insurance company with respect to Escrow Agent’s acts in connection with the Closing and Escrow Agent’s performance of its obligations under this Agreement.
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.
By Sellers Sellers, jointly and severally, shall indemnify, save and hold harmless Buyer (before and after the Closing) and the Corporation (after the Closing only) from, against and in respect of the following (individually a "Loss" and collectively "Losses"):
(i) any and all loss, liability, deficiency or damage suffered or incurred by Buyer by reason of (A) any untrue representation or breach of warranty or (B) nonfulfillment of any covenant or agreement by Sellers or the Corporation in this Agreement or in any agreement, instrument or other writing delivered to Buyer by Sellers or the Corporation pursuant to or in connection with this Agreement;
(ii) any claim against the Corporation or Buyer for (x) a finder's fee, investment banker's fee, or brokerage or other commission or (y) for legal expenses, in each case by any Person for services alleged to have been rendered at the instance of the Corporation or Sellers with respect to this Agreement or the transaction contemplated by this Agreement;
(iii) any and all loss, liability, deficiency or damage suffered or incurred by Buyer or the Corporation relating to any claim, suit, litigation or proceeding with respect to events occurring prior to the Closing Date which is not fully reserved for on the Corporation's Financial Statements or Interim Financial Statements, except to the extent covered by insurance, including, but not limited to, any claim by any Person that any of the Corporation's operations failed to comply with any applicable Governmental Requirement;
(iv) any liabilities and obligations for Taxes which are or shall be incurred with respect to the operation of the Corporation on or prior to the Closing Date;
(v) any and all loss, liability, deficiency or damage suffered or incurred by Buyer or the Corporation in connection with any Employee Plan with respect to the operation of the Corporation on or prior to the Closing Date which is not fully reserved for on the Corporation's Financial Statements or Interim Financial Statements;
(vi) any and all loss, liability, deficiency or damage suffered or incurred by Buyer or the Corporation caused by or arising out of the generation, treatment, handling, storage or disposal of Hazardous Substances or noncompliance with any Environmental Laws prior to the Closing Date regardless of whether or not the matter or matters giving rise to any such Losses were disclosed to Buyer in Schedule 4.19 or known by Sellers at the date of this Agreement; and
(vii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, (including, but not limited to, legal fees and expenses) incident to any of the foregoing or incurred in enforcing this Agreement or any agreement provided for in this Agreement. With respect to any Losses covered by Sellers' indemnification obligations under Section 9.2(a)(i)(A), the Sellers shall have liability for such Losses only if the aggregate amount of any such Losses exceed Fifty Thousand Dollars ($50,000), in which case Sellers shall indemnify Buyer for all Losses (beginning with the first dollar thereof); provided, however, that such limitation shall not apply to any other Losses covered by Section 9.2(a) nor to any Losses incurred as a result of fraud.
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.
Seller Closing Deliverables Seller shall have delivered to Purchaser each of the certificates, instruments, agreements, documents and other items required to be delivered pursuant to Section 3.5 at or prior to the Closing Date.
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.
POSSESSION AND CLOSING Possession of the Property shall be delivered to Purchaser by Seller at the Closing, subject to the Permitted Exceptions and the rights of the Tenants under Tenant Leases. Purchaser shall make its own arrangements for the provision of public utilities to the Property and Seller shall terminate its contracts with such utility companies that provide services to the Property.
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.
Operations Prior to Closing (a) Seller agrees to operate the Property between the Execution Date and the Closing Date in the same general manner as Seller has operated the Property during the immediately preceding six (6) month period, paying all costs and expenses as they come due, and in any event prior to Closing, and maintaining all insurance coverage currently in force.
(b) Seller shall comply with all of the obligations of landlord under the Leases and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after the Closing.
(c) Seller shall notify Buyer promptly of Seller's receipt of any notice from any party alleging that Seller is in default of its obligations under any of the Leases or any Permit or agreement affecting the Real Property, or any portion or portions thereof.
(d) No contract for or on behalf of or affecting the Real Property shall be negotiated or entered into which cannot be terminated by Seller upon the Closing without the payment of a specific charge, cost, penalty or premium for such termination.
(e) Except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, Seller shall not enter into any new leases for any portion of the Real Property. Any new lease shall be on Buyer's customary form (which may vary to reflect customary negotiated revisions thereto), or such other form which is reasonably acceptable to Buyer. Further, except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, or as set forth above, Seller shall not amend, extend (except where required under the terms of the Lease in question), terminate (except by reason of a tenant's default), accept surrender of, or permit any assignments or subleases of, any of the Leases (except as may be required under such Lease), nor accept any rental more than one (1) month in advance (exclusive of any security deposit).
(f) Seller shall not make or permit to be made any capital improvements or additions to the Real Property, or any portion thereof, without the prior written consent of Buyer, except those made by Seller pursuant to the express requirements of this Agreement, those made by tenants pursuant to the right to do so under their Leases, or by Seller if required by applicable law or ordinance, or as required under any Lease.
(g) Seller shall timely xxxx all tenants for all rent billable under Leases, and use commercially reasonable efforts to collect any rent in arrears.
(h) Seller shall notify Buyer of any tax assessment disputes (pending or threatened) prior to Closing, and from and after the Due Diligence Expiration Date, Seller not agree to any changes in the real estate tax assessment, nor settle, withdraw or otherwise compromise any pending claims with respect to tax assessments relating to the current or any subsequent year, without Buyer's prior written consent, which shall not be unreasonably withheld, delayed or conditioned. If any proceedings shall result in any reduction of assessment and/or tax for the tax year in which the Closing occurs, it is agreed that the amount of tax savings or refund for such tax year, less the reasonable fees and disbursements in connection with such proceedings, shall be apportioned between the parties as of the date real estate taxes are apportioned under this Agreement. All refunds relating to any tax year prior to the Closing shall be the sole property of Seller, and all refunds relating to any year subsequent to the year in which Closing occurs shall be the sole property of Buyer. Each party agrees to promptly remit to the other any refund received by it which is the property of the other.
(i) Seller shall notify Buyer promptly of the occurrence of any of the following:
(i) Receipt of notice from any governmental or quasi-governmental agency or authority or insurance underwriter relating to the condition, use or occupancy of the Real Property, or any portion thereof;
(ii) Receipt of any notice of default from any tenant or from the holder of any lien or security interest in or encumbering the Real Property, or any portion thereof;
(iii) Notice of any actual or threatened litigation against Seller or affecting or relating to the Real Property, or any portion thereof which may materially and adversely affect the Real Property or Seller's ability to consummate the transactions contemplated by this Agreement; and
(iv) Vacancy of any demised Property by a tenant, other than in accordance with a scheduled lease termination.
Contributor’s Deliveries At the Closing, Contributor shall deliver the following to Acquirer in addition to all other items required to be delivered to Acquirer by Contributor:
