Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following: (a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either (i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or (ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof. (b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents. (c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that: (i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents; (ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not: (A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing; (B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
Appears in 3 contracts
Samples: Option Agreement (Tower Realty Trust Inc), Option Agreement (Tower Realty Trust Inc), Option Agreement (Tower Realty Trust Inc)
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C A attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
3 4 (i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
Appears in 2 contracts
Samples: Option Agreement (Tower Realty Trust Inc), Option Agreement (Tower Realty Trust Inc)
Documents to Be Delivered at the Closing. (a) At or prior to the Closing, the Grantor shallSellers, directly or through as applicable, shall deliver the attorney-in-fact appointed pursuant IFA Payment to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, IFA in accordance with Section 1.2(a) and shall deliver to the Escrow AgentPurchaser and REG, in addition to any other documents mentioned elsewhere hereinas applicable, the following:
(ai) An assignment The Xxxx of Sale in the Interests form attached hereto as Exhibit E executed by the Company;
(ii) The Assignment and Assumption Agreement in the "ASSIGNMENT"), which shall be form attached hereto as Exhibit F executed by the Company;
(iii) The Oil Feedstock Supply Agreement in the form attached hereto as Exhibit C attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested executed by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing DocumentsBunge;
(iiiv) The Services Agreement in the executionform attached hereto as Exhibit D executed by Bunge;
(v) The Addendum to the Amended and Restated Stockholder Agreement dated July 18, delivery and performance 2007 for the REG Common Stock in the form attached hereto as Exhibit H (the “Stockholder Agreement”) executed by the Grantor Sellers;
(vi) The Registration Rights Agreement in the form attached hereto as Exhibit I (the “Registration Rights Agreement”) executed by the Sellers;
(vii) Certified copies of this Agreement the resolutions duly adopted by the Board of Managers and members of the Closing Documents, Company authorizing the transfer of the Assets to Purchaser;
(viii) Certified copies of the resolutions duly adopted by the Board of Managers and members of BIG authorizing the transactions contemplated hereby and thereby, do not:by this Agreement;
(Aix) constitute a breach Any and all consents, filings, waivers, registrations, approvals or a violation of the Grantor's charter and/or bylawsauthorizations, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party with or by which it any Governmental Authority and all consents, waivers, approvals or its assets or properties are bound or affected, except authorizations of any other Person required for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with consummation of the Closing;
(Bxi) A statement of account of the Bank Balance owed by Company to Fifth Third Bank under the Construction Loan Agreement and a statement of the Assumed Liabilities as provided in Section 1.2(d);
(xii) The Escrow Agreement executed by the Company; and
(xiii) Such other customary documents as may be reasonably requested by the Purchaser related to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or transactions contemplated by which it or any of its assets or properties are bound or affected; orthis Agreement.
Appears in 1 contract
Documents to Be Delivered at the Closing. (a) At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and Seller shall deliver to Purchaser the Escrow Agentfollowing documents each fully executed and, in addition to any other documents mentioned elsewhere hereinif required, the followingacknowledged by Seller:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm a good and sufficient limited warranty deed (the accuracy of all representations "Deed") conveying good and warranties clear, record and marketable title to the satisfaction of all covenants contained in Article III hereof, orPremises to Purchaser subject only to the Permitted Title Exceptions;
(ii) if such reaffirmation canan assignment and assumption of permits (the "Blanket Assignment") assigning all permits, licenses and approvals with respect to Premises and to Purchaser;
(iii) a bill of sale conveying without representation, warranty or recourse all of the right, title and interest of Seller in and to the personal property used in connection with the Premises;
(iv) an affidavit and indemnity as to mechanics' liens and persons in possession in a customary form reasonably acceptable to Purchaser's title insurance company;
(v) an affidavit stating that Seller is not a foreign person or entity within the meaning of Section 1445 of the Internal Revenue Code, and complying with the Internal Revenue Service Regulations promulgated pursuant to said Section 1445;
(vi) a designation agreement designating the party responsible for any Form 1099 filings as may be maderequired by the Internal Revenue Service's regulations;
(vii) a closing statement;
(viii) an officer's certificate of Seller dated the Closing Date as to satisfaction of the conditions set forth in Section 12(b), identify those representationsattaching appropriate evidence of requisite corporate action with respect thereto, including, but not limited to, votes of the governing bodies of Seller;
(ix) to the extent they are then in Seller's possession and have not been delivered to Purchaser: (A) any plans and specifications for the Premises; (B) all unexpired warranties and/or covenants contained and guarantees which Seller has received in Article III hereof which connection with any work or services performed with respect to, or equipment installed in, the Grantor can no longer make Premises; (C) all keys for the Premises; (D) originals of all contracts and all correspondence relating thereto and to the operation and maintenance of the Property; and (e) all other books, records, files, plans and other written information including computerized records relating to the development, construction, maintenance, use, operation, title or comply with, represent value of all or any portion of the Property owned by Seller in the possession or control of Seller but specifically excluding any Confidential Property Information;
(x) Four originals of the Lease and Guaranty;
(xi) Intentionally Deleted;
(1) written confirmation that the Grantor Broker has used reasonable efforts been paid in full all amounts then due in connection with the transactions contemplated by this Agreement; and (2) such other instruments, certificates and documents as are reasonably required in order to take such actions as would permit fully effectuate the Grantor to make such terms of this Agreement; and
(xiii) a certificate of an executive officer of Seller dated the Closing Date certifying that the representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants Seller contained in Article III hereof.this Agreement are true and correct on and as of the Closing Date as if made on the Closing Date and attaching appropriate evidence of requisite corporate action with respect thereto, including, but not limited to, votes/resolutions or consents of governing bodies of Seller;
(b) If requested At the Closing, Purchaser shall deliver to Seller the following documents each fully executed by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect thatPurchaser:
(i) the Grantor is a corporationBlanket Assignment assuming the permits, limited partnership, general partnership, limited liability company or trust duly organized, validly existing licenses and in good standing under approvals with respect to the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement Premises and the Closing DocumentsImprovements;
(ii) a designation agreement designating the execution, delivery and performance party responsible for any Form 1099 filings as may be required by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the GrantorInternal Revenue Service's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closingregulations;
(Biii) a closing statement;
(iv) a manager's certificate of Purchaser dated the Closing Date certifying that the representations and warranties of Purchaser contained in this Agreement are true and correct on and as of the Closing Date as if made on the Closing Date and attaching appropriate evidence of requisite corporate action with respect thereto, including, but not limited to, votes/resolutions or consents of governing bodies of Purchaser;
(v) such other instruments, certificates and documents as are reasonably required in order to fully effectuate the knowledge terms of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affectedthis Agreement; orand
(vi) Lease as provided for in Section 27.
Appears in 1 contract
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C E attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
Appears in 1 contract
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENTAssignment"), which shall be in the form attached hereto as Exhibit C attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
Appears in 1 contract
Documents to Be Delivered at the Closing. (a) At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and Seller shall deliver to Purchaser the Escrow Agentfollowing documents each fully executed and, in addition to any other documents mentioned elsewhere hereinif required, the followingacknowledged by Seller:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm a good and sufficient quitclaim deed (the accuracy of all representations "Deed") conveying good and warranties clear, record and marketable title to the satisfaction of all covenants contained in Article III hereof, orPremises to Purchaser subject only to the Permitted Title Exceptions;
(ii) if such reaffirmation canan assignment and assumption of permits (the "Blanket Assignment") assigning all permits, licenses and approvals with respect to Premises and to Purchaser;
(iii) a bill of sale conveying without representation, warranty or recourse all of the right, title and interest of Seller in and to the personal property used in connection with the Premises;
(iv) an affidavit and indemnity as to mechanics' liens and persons in possession in a customary form reasonably acceptable to Purchaser's title insurance company;
(v) an affidavit stating that Seller is not a foreign person or entity within the meaning of Section 1445 of the Internal Revenue Code, and complying with the Internal Revenue Service Regulations promulgated pursuant to said Section 1445;
(vi) a designation agreement designating the party responsible for any Form 1099 filings as may be maderequired by the Internal Revenue Service's regulations;
(vii) a closing statement;
(viii) an officer's certificate of Seller dated the Closing Date as to satisfaction of the conditions set forth in Section 12(b), identify those representationsattaching appropriate evidence of requisite corporate action with respect thereto, including, but not limited to, votes of the governing bodies of Seller;
(ix) to the extent they are then in Seller's possession and have not been delivered to Purchaser: (A) any plans and specifications for the Premises; (B) all unexpired warranties and/or covenants contained and guarantees which Seller has received in Article III hereof which connection with any work or services performed with respect to, or equipment installed in, the Grantor can no longer make Premises; (C) all keys for the Premises; (D) originals of all contracts and all correspondence relating thereto and to the operation and maintenance of the Property; and (e) all other books, records, files, plans and other written information including computerized records relating to the development, construction, maintenance, use, operation, title or comply with, represent value of all or any portion of the Property owned by Seller in the possession or control of Seller but specifically excluding any Confidential Property Information;
(x) Four originals of the Lease;
(xi) Intentionally Deleted;
(1) written confirmation that the Grantor Broker has used reasonable efforts been paid in full all amounts then due in connection with the transactions contemplated by this Agreement; and (2) such other instruments, certificates and documents as are reasonably required in order to take such actions as would permit fully effectuate the Grantor to make such terms of this Agreement; and
(xiii) a certificate of an executive officer of Seller dated the Closing Date certifying that the representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants Seller contained in Article III hereof.this Agreement are true and correct on and as of the Closing Date as if made on the Closing Date and attaching appropriate evidence of requisite corporate action with respect thereto, including, but not limited to, votes/resolutions or consents of governing bodies of Seller;
(b) If requested At the Closing, Purchaser shall deliver to Seller the following documents each fully executed by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect thatPurchaser:
(i) the Grantor is a corporationBlanket Assignment assuming the permits, limited partnership, general partnership, limited liability company or trust duly organized, validly existing licenses and in good standing under approvals with respect to the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement Premises and the Closing DocumentsImprovements;
(ii) a designation agreement designating the execution, delivery and performance party responsible for any Form 1099 filings as may be required by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the GrantorInternal Revenue Service's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closingregulations;
(Biii) a closing statement;
(iv) a manager's certificate of Purchaser dated the Closing Date certifying that the representations and warranties of Purchaser contained in this Agreement are true and correct on and as of the Closing Date as if made on the Closing Date and attaching appropriate evidence of requisite corporate action with respect thereto, including, but not limited to, votes/resolutions or consents of governing bodies of Purchaser;
(v) such other instruments, certificates and documents as are reasonably required in order to fully effectuate the knowledge terms of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affectedthis Agreement;
(vi) Lease as provided for in Section 27; orand
(vii) The Note and Pledge as provided for in Section 2(b) above.
Appears in 1 contract
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C E attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
(C) to the knowledge of such counsel, result in the creation of any lien, charge or encumbrance upon any of the Grantor's assets or properties, except for Permitted Pledges (as defined in Section 3.1(a)); and
(iii) all applicable corporate, partnership, limited liability company or trust action necessary for the Grantor to execute and deliver this Agreement and the Closing Documents and to perform the transactions contemplated hereby and thereby has been taken and that the same have been validly executed and delivered and are the valid and binding obligations of the Grantor enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights and remedies generally.
(d) An affidavit establishing an exemption from the withholding requirements of the Foreign Investment in Real Property Tax Act ("FIRPTA"), as amended, provided, however, that if the Grantor fails to provide such an affidavit, the Operating Partnership shall be entitled to withhold from the Acquisition Consideration and pay to the Internal Revenue Service the sums required to be withheld pursuant to FIRPTA (and the amount so withheld shall be paid by the Operating Partnership to the Internal Revenue Service, in order for the Operating Partnership to comply with the provisions of Section 1445 of the Internal Revenue Code of 1986 or successor similar legislation, as the same may be amended hereafter).
Appears in 1 contract
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; or
(C) to the knowledge of such counsel, result in the creation of any lien, charge or encumbrance upon any of the Grantor's assets or properties, except for Permitted Pledges (as defined in Section 3.1(a)); and
(iii) all applicable corporate, partnership, limited liability company or trust action necessary for the Grantor to execute and deliver this Agreement and the Closing Documents and to perform the transactions contemplated hereby and thereby has been taken and that the same have been validly executed and delivered and are the valid and binding obligations of the Grantor enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights and remedies generally.
(d) An affidavit establishing an exemption from the withholding requirements of the Foreign Investment in Real Property Tax Act ("FIRPTA"), as amended, provided, however, that if the Grantor fails to provide such an affidavit, the Operating Partnership shall be entitled to withhold from the Acquisition Consideration and pay to the Internal Revenue Service the sums required to be withheld pursuant to FIRPTA (and the amount so withheld shall be paid by the Operating Partnership to the Internal Revenue Service, in order for the Operating Partnership to comply with the provisions of Section 1445 of the Internal Revenue Code of 1986 or successor similar legislation, as the same may be amended hereafter).
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Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor Grantors shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C attached hereto E and shall contain a warranty of title that the Grantor owns Grantors own the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor Grantors can no longer make or comply with, represent that the Grantor has Grantors have used reasonable efforts to take such actions as would permit the Grantor Grantors to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the a Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the said Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the a Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; orthe
Appears in 1 contract
Documents to Be Delivered at the Closing. At or prior to the Closing, the Grantor shall, directly or through the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment of the Interests (the "ASSIGNMENT"), which shall be in the form attached hereto as Exhibit C A attached hereto and shall contain a warranty of title that the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i) reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts efforts, which shall not require Grantor to commence litigation, to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereof.
(b) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents.
(c) If requested by the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement and the Closing Documents;
(ii) the execution, delivery and performance by the Grantor of this Agreement and the Closing Documents, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach or a violation of the Grantor's charter and/or bylaws, partnership agreement, operating agreement and articles of organization or declaration of trust, as applicable, or, to the knowledge of such counsel, any indenture, deed of trust, mortgage, loan or credit agreement or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closing;
(B) to the knowledge of such counsel, constitute a violation or any order, judgment or decree to which the Grantor is a party or by which it or any of its assets or properties are bound or affected; orwhich
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Documents to Be Delivered at the Closing. 4.1. Documents To Be Delivered to the Buyer by the Company and the ------------------------------------------------------------- Sellers. At or prior to the Closing, the Grantor shall, directly or through Company and the attorney-in-fact appointed pursuant to Article V hereof, execute, acknowledge where deemed necessary or desirable by the Operating Partnership, and Sellers will -------- deliver to the Escrow Agent, in addition to any other documents mentioned elsewhere herein, the followingBuyer:
(a) An assignment Against receipt of the Interests payment of the Closing Payment Amount, (i) the "ASSIGNMENT")Founders will deliver and cause to be delivered to the Buyer certificates or assignments for 100% of the Units and (ii) NAV will deliver to the Buyer certificates or assignments for the Warrant and the Convertible Debenture, all in accordance with the requirements of Section 2.1 hereof, which certificates or assignments will be duly endorsed in blank or accompanied by unit or other transfer powers duly executed in blank, in proper form for transfer;
(b) Against receipt from the Buyer of payment of the principal amount and accrued interest thereunder, NAV will deliver to the Buyer the Amortizing Debenture as provided in Section 2.1 hereof, which shall be marked "paid in full" and otherwise in proper form for cancellation;
(c) A Unit Holders Representative Agreement duly executed by each of the Minority Unit Holders;
(d) A certificate, in form and substance reasonably acceptable to the Buyer, executed by the President of the Company, and attested to by the Secretary of the Company, dated the Closing Date, and certifying that: (i) attached thereto is a true and complete copy of the Charter Documents of the Company and the Subsidiary, as in effect on the Closing Date; (ii) attached thereto is a true and complete copy of resolutions duly adopted by the Board of Managers of the Company and the Board of Directors of the Subsidiary authorizing the execution, delivery, and performance of this Agreement; and (iii) such resolutions have not been modified, rescinded, or amended and are in full force and effect;
(e) A certificate, in form and substance reasonably acceptable to the Buyer, executed by the President of the Company and the Subsidiary, dated the Closing Date, certifying as to the accuracy of the representations and warranties of the Company and the Subsidiary at and as of the Closing and the performance by the Company and the Subsidiary of their respective covenants and agreements to be performed prior to the Closing Date;
(f) A certificate, in form and substance reasonably acceptable to the Buyer, executed by each of the Founders, by the Minority Unit Holders or on behalf of them by the Minority Unit Holders Representative, and by the general partner of NAV, dated the Closing Date, certifying as to the accuracy of their respective representations and warranties at and as of the Closing and the performance of their respective agreements to be performed prior to the Closing Date;
(g) Resignations of all of managers, directors and officers of the Company provided, however, that such resignation shall not terminate the existing employment agreement with Xxxxx Xxxxx;
(h) All contracts, books, records, and other data of the Company and the Subsidiary relating to their operations, including the Company's minute and unit books and the Subsidiary's minute and stock record books;
(i) An Employment Agreement substantially in the form attached hereto as Exhibit C D executed by Xxxxxx (the "Employment Contract"); ---------
(j) A Non-Solicitation and Non-Competition Agreement substantially in the form attached hereto and shall contain a warranty of title that as Exhibit E (the Grantor owns the Interests free and clear of all Encumbrances (as defined in Section 3.1(a)), and shall either
(i"Non-Competition Agreement") reaffirm the accuracy of all representations and warranties and the satisfaction of all covenants contained in Article III hereof, or
(ii) if such reaffirmation cannot be made, identify those representations, warranties and/or covenants contained in Article III hereof which the Grantor can no longer make or comply with, represent that the Grantor has used reasonable efforts to take such actions as would permit the Grantor to make such representations and warranties and/or to comply with such covenants, and reaffirm the accuracy of all other representations and warranties and the satisfaction of all other covenants contained in Article III hereofexecuted --------- by Xxxxx.
(bk) If requested by A certificate of good standing of the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, a certified copy of all necessary or appropriate corporate resolutions or partnership, limited liability company or trust actions authorizing the execution, delivery and performance by the Grantor of this Agreement Company and the Closing Documents.
(c) If requested by Subsidiary from the Operating Partnership in the case where the Grantor is a corporation, partnership, limited liability company or trust, an opinion from counsel for the Grantor in form and content reasonably acceptable to the Operating Partnership substantially to the effect that:
(i) the Grantor is a corporation, limited partnership, general partnership, limited liability company or trust duly organized, validly existing and in good standing under the laws Secretary of State of the state of its organization and had and has all applicable power and authority to execute, deliver and perform this Agreement of the Company and the Subsidiary, and a certificate from the Secretary of each jurisdiction in which the Company and the Subsidiary owns or leases real property or otherwise does business evidencing the authorization of the Company and the Subsidiary to conduct business as a foreign entity in such State, dated not earlier than ten (10) days prior to the Closing DocumentsDate;
(iil) Executed agreements in form and substance satisfactory to the executionBuyer and the holders of all unexercised Company options, delivery and performance signed by the Grantor holders of this Agreement and the Closing Documentsall unexercised Company options, and the transactions contemplated hereby and thereby, do not:
(A) constitute a breach rights or a violation other interests to purchase or otherwise acquire units of the Grantor's charter and/or bylawsCompany terminating such options, partnership agreementrights or other interests, operating agreement and articles of organization or declaration of trust, as applicable, or, other evidence satisfactory to the knowledge Buyer of the exercise of such counseloptions, any indenture, deed of trust, mortgage, loan or credit agreement rights or other material agreement or instrument to which the Grantor is a party or by which it or its assets or properties are bound or affected, except for such breach or violation as the Operating Partnership has represented and warranted will be waived or cured, or discharged or repaid prior to or contemporaneously with the Closinginterests;
(Bm) The Escrow Agreement executed by the Sellers;
(n) The opinion of counsel for the Company and the Subsidiary in substantially the form attached hereto as Exhibit F-1; -----------
(o) The opinion of counsel for NAV in substantially the form attached hereto as Exhibit F-2;
(p) The list of employees and employee remuneration referred to in Section 5.25 of this Agreement;
(q) The description of material claims experience of the Company and the Subsidiary as provided in Section 7.8 of this Agreement;
(r) An estoppel certificate from the Company's and the Subsidiary's current landlords with respect to property leased in Massachusetts in the form approved by the Buyer's counsel (it being understood and agreed that the Company and Subsidiary shall be required to use reasonable efforts to obtain an estoppel certificate with respect to the knowledge of such counsel, constitute a violation or any order, judgment or decree lease for New Hampshire;
(s) Counsel shall have an agreement executed by Xxxxxx in form and substance satisfactory to which the Grantor is a party or Buyer by which it Xxxxxx terminates all existing employment agreements and arrangements between Xxxxxx and the Company and between Xxxxxx and the Subsidiary; and
(t) Such other certificates and documents as the Buyer or any of its assets or properties are bound or affected; orcounsel may reasonably request.
Appears in 1 contract
Samples: Unit Purchase Agreement (Choice One Communications Inc)