Pre-Closing Actions As promptly as practicable, each Warrantor shall: (a) use best efforts to take all actions required of such party and to do all other things reasonably necessary, proper or advisable to consummate the transactions contemplated under the Transaction Documents; (b) file or supply, or cause to be filed or supplied, all applications, notifications and information required to be filed or supplied by such Warrantor pursuant to Law in connection with the Transaction Documents and the issuance of the Subscription Shares pursuant hereto and the consummation of the other transactions contemplated under the Transaction Documents; (c) use reasonable best efforts to obtain, or cause to be obtained, all consents (including any consents required under any Contract) necessary to be obtained by such party in order to consummate the transactions contemplated pursuant to the Transaction Documents; and (d) coordinate and cooperate with the other Parties in exchanging such information and supplying such assistance as may be reasonably requested by the other Parties in connection with any filings and other actions to be made or taken in order to consummate the transactions contemplated pursuant to the Transaction Documents.
Closing Actions On the Closing Date, the following actions have to be taken by the Parties, either jointly or separately, and Parties shall procure that the Company provides the respective documents, as the case may be, which shall be taken simultaneously (Zug um Zug):
(a) delivery by Sellers to Purchaser of bank statements showing the Cash of the Company as of the Closing Date;
(b) delivery by Sellers of copies of resignation letters from the following persons or of a shareholders’ resolution removing the following persons from the supervisory board of the Company, effective prior to or at Closing:
(i) Dr. Nedim Cen as member of the supervisory board of the Company;
(ii) Xx. Xxxxxxx X. Feldt as member of the supervisory board of the Company;
(iii) Mr. Michael El-Hillow as member of the supervisory board of the Company;
(iv) Xx. Xxxxx Xxxxxxx as member of the supervisory board of the Company;
(v) Xx. Xxxxx Xxxxxx as member of the supervisory board of the Company; and
(vi) Mr. Xxxx Xxxxxxxx as member of the supervisory board of the Company;
(c) delivery by Sellers of a copy of the shareholders’ resolution of the Company regarding the discharge from liability (Entlastung) of the persons in Section 4.4(b) for the fiscal year 2009 and the period from 1 January 2010 until the effectiveness of their resignation or, as the case may be removal as supervisory board members;
(d) delivery by the Company of a confirmation by fax from the Company’s bank that the debt referred to in Section 3.2(b) has been settled by Seller 3;
(e) payment by Purchaser of the Purchase Price to the Sellers in cash;
(f) payment of the Purchaser’s Cash Contribution less an amount equal to the amount of the Bank Debt that remains outstanding upon Closing, but in any case payment of not less than the portion of Purchaser’s Cash Contribution as described in Section 4.2(a)(iii) (sub-sentence (iii)) to the Company’s Bank Account;
(g) [****] (the “Sellers’ Cash Contribution”)];
(h) payment by the Company in full of the Seller 3 Royalty Claims to the Seller 3 Bank Account;
(i) delivery by the Company to Sellers and Purchaser of a confirmation by fax from the Company’s bank evidencing that the payment set forth in Section 4.4(f) has been credited to the Company’s Bank Account;
(j) delivery by the Company to Sellers and Purchaser of a confirmation by fax from the Company’s bank evidencing that the Sellers’ Cash Contribution has been credited to the Company’s Bank Account;
(k) delivery by Seller 3 of a fax confirmation from its bank that a payment in the amount of the Seller 3 Royalty Claims has been credited to the Seller 3 Bank Account;
(l) at the request of Purchaser, either (i) execution by Sellers of an unconditional and irrevocable waiver of all their claims, including payment claims regarding the loan amount and any accrued interest, under the Shareholder Loans and any other claims of Sellers against the Company, but only if and to the extent as specified in Exhibit 4.4(l) (together the “Sellers’ Claims”), or (ii) sale, assignment and transfer of the Sellers’ Claims by Sellers to an Affiliate of Purchaser for a purchase price of [****];
(m) execution by Sellers and Purchaser of a share transfer agreement regarding the Sold Shares, substantially in the form as attached hereto as Exhibit 4.4(m) and transfer and delivery of Share Certificates by way of endorsement (Indossament) to Purchaser;
(n) notification by Purchaser to the Company of the change of ownership in the Sold Shares, and entering of Purchaser in the Company’s share register; and
(o) confirmation by the Parties in writing that the Closing Conditions have been fulfilled or waived, all actions to be taken on the Closing Date under this Section 4.4 have been taken or waived in accordance with this Agreement and that as a consequence thereof the Sold Shares have been transferred to Purchaser (the “Closing Confirmation”).
Post-Closing Actions Each Borrower agrees that it will, or will cause its relevant Subsidiaries to, complete each of the actions described on Schedule 9.13 as soon as commercially reasonable and by no later than the date set forth in Schedule 9.13 with respect to such action or such later date as the Administrative Agent may reasonably agree.
Pre-Closing Transactions Prior to the purchase of the Initial Securities on the Closing Date, the Pre-Closing Transactions shall have been duly consummated at the respective times and on the terms contemplated by this Agreement, the General Disclosure Package and the Prospectus and the Representatives shall have received such evidence that the Pre-Closing Transactions have been consummated as the Representatives may reasonably request.
Closing Transactions On the terms and subject to the conditions set forth in this Agreement, the following transactions shall occur in the order set forth in this Section 2.1:
Pre-Closing Tax Returns From and after the Closing, Peabody shall prepare or cause to be prepared all Tax returns required to be filed by the Peabody Transferred Subsidiaries or, other than Tax returns related to Income Taxes, with respect to the Peabody Contributed Assets for any Pre-Closing Tax Period (the “Peabody Prepared Returns”), and Arch shall prepare or cause to be prepared all Tax returns required to be filed by the Arch Transferred Subsidiaries or, other than Tax returns related to Income Taxes, with respect to the Arch Contributed Assets for any Pre-Closing Tax Period (the “Arch Prepared Returns”). Except as otherwise required by applicable Law, each of Peabody and Arch shall prepare such Tax returns in accordance with past practice. Peabody and Arch shall each deliver to the JV Company all Peabody Prepared Returns and Arch Prepared Returns, together with all supporting documentation, no later than ten days prior to the due date for filing such Tax return, and, if any Peabody Prepared Return or any Arch Prepared Return would reasonably be expected to result in or otherwise affect material Taxes of any JV Entity in any Post-Closing Taxable Period, Peabody or Arch, as the case may be, shall also deliver such Tax return, together with all supporting documentation to Arch or Peabody, as the case may be, no later than ten days prior to the due date for filing such Tax return, for review and reasonable comment by the JV Company and Arch or Peabody, as the case may be, and the party filing such Tax return shall incorporate any reasonable comments received no later than five days prior to the due date for filing such Tax return. Peabody and Arch shall use commercially reasonable efforts to determine which of Peabody, Arch or the JV Company shall file such Tax return. If after complying with the immediately preceding sentence in good faith, Peabody and Arch are unable to agree on which of Peabody, Arch or the JV Company is responsible for filing such Tax return, then the JV Company shall be responsible for filing such Tax return. If the JV Company files any Tax return pursuant to this Section 6.21(a)(i) and if such Tax return shows Taxes as due and owing, Peabody or Arch, as applicable, shall pay the amount of Contributor Taxes with respect to such Tax return to the JV Company no later than the due date for filing such Tax return and the JV Company shall remit such Taxes to the applicable Governmental Authority. If either Peabody or Arch files any Tax return pursuant to this Section 6.21(a)(i), such Tax return shows Taxes as due and owing, and such Taxes were specifically included in Peabody Net Working Capital or Arch Net Working Capital, as the case may be, as finally determined pursuant to Section 3.5(c), then the JV Company shall pay the amount of such identified Taxes to Peabody or Arch no later than the due date for filing such Tax return and Peabody or Arch, as the case may be, shall remit such Taxes to the applicable Governmental Authority.
Closing and Closing Documents 7 4.1 Closing...................................................................................... 7 4.2 Seller's Deliveries.......................................................................... 7 4.3 Purchaser's Deliveries....................................................................... 8 4.4 Fees and Expenses; Closing Costs............................................................. 8 4.5 Adjustments.................................................................................. 8 ARTICLE V Miscellaneous......................................................................................... 9
Closing and Closing Deliveries 27 8.1 Closing...............................................................................27 8.2
Pre-Closing Promptly upon the execution of this Agreement, Seller shall notify the Manufacturer regarding the transactions contemplated by this Agreement. Buyer (or its affiliate) shall promptly apply to the Manufacturer for the issuance of a contractual right to operate an automobile dealership upon the Premises. The Parties shall use commercially reasonable best efforts to obtain Manufacturer approval as soon as possible. Seller shall promptly provide the requisite information, documents and access necessary to prepare for Closing and ensure a seamless operational transfer of the Assets. Effective as of the Closing, Seller shall terminate its Dealer Sales and Service Agreements with the Manufacturer relative to the Dealership location and execute and deliver all of the Manufacturer’s customary documents and promptly remove Manufacturer’s intellectual property from all publicly visible Excluded Assets in every form and medium (i.e., retained internet sites, signs, etc.). Seller shall fully cooperate with Buyer, and take all reasonable steps to assist Buyer, in Buyer’s efforts to obtain its own similar Dealer Sales and Service Agreements with the Manufacturer. All actions to be taken at the Closing pursuant to this Agreement will be deemed to have occurred simultaneously, and no action, document or transaction will be deemed to have been taken, delivered or effected, until all such actions, documents and transactions have been taken, delivered or effected. Promptly after the Closing, Seller shall transfer to Buyer certificates of title or origin for all vehicles and all of its registration lists, owner follow-up lists and service files on hand as of the Closing, provided that such lists and files relate to the Assets. If Seller presents assets for purchase post-Closing that would have otherwise been Assets, then such assets may be purchased at a mutually agreed to price or otherwise retained by Seller. Buyer is not required to submit an offer. This does not apply to in-transit vehicles from the Manufacturer. Buyer shall retain and safeguard the pre-Closing customer paper deal jackets retained by Buyer in accordance with law, and, until Buyer destroys such records in accordance with company policy in effect from time to time, Seller shall have reasonable access to Seller’s pre-Closing customer records (e.g., paper deal jackets) and any records related to Assigned Contracts after the Closing for any legitimate purpose, such as (by way of example and not by limitation) for resolving customer inquiries.
Buyer Closing Deliveries Buyer shall deliver the following documents to the Escrow Agent on or before the date which is (i) one (1) Business Day prior to the Closing Date if the Loan Assumption is to occur at the Closing with respect to all Assets, or (ii) two (2) Business Days prior to the Closing Date if the Loan Assumption is not to occur at the Closing with respect to any Asset (i.e., there will be no Loan Assumption at all):
(a) With respect to the Assets:
(i) an assignment and assumption of Crown Ridge Seller’s interest in the Crown Ridge Space Leases (the “Crown Ridge Assignment of Leases”) duly executed by Buyer in substantially the form of Exhibit A attached hereto;
(ii) an assignment and assumption of Canyon Springs Seller’s interest in the Canyon Springs Space Leases (the “Canyon Springs Assignment of Leases”) duly executed by Buyer in substantially the form of Exhibit A attached hereto;
(iii) an assignment and assumption of Cascades I Seller’s interest in the Cascades I Space Leases (the “Cascades I Assignment of Leases”) duly executed by Buyer in substantially the form of Exhibit A attached hereto;
(iv) an assignment and assumption of Cascades II Seller’s interest in the Cascades II Space Leases (the “Cascades II Assignment of Leases”) duly executed by Buyer in substantially the form of Exhibit A attached hereto;
(v) an assignment and assumption of Cibolo Canyon Seller’s interest in the Cibolo Canyon Space Leases (the “Cibolo Canyon Assignment of Leases”) duly executed by Buyer in substantially the form of Exhibit A attached hereto;
(vi) an assignment and assumption of the Crown Ridge Contracts (the “Crown Ridge Assignment of Contracts”) duly executed by Buyer in substantially the form of Exhibit B attached hereto;
(vii) an assignment and assumption of the Canyon Springs Contracts (the “Canyon Springs Assignment of Contracts”) duly executed by Buyer in substantially the form of Exhibit B attached hereto;
(viii) an assignment and assumption of the Cascades I Contracts (the “Cascades I Assignment of Contracts”) duly executed by Buyer in substantially the form of Exhibit B attached hereto;
(ix) an assignment and assumption of the Cascades II Contracts (the “Cascades II Assignment of Contracts”) duly executed by Buyer in substantially the form of Exhibit B attached hereto;
(x) an assignment and assumption of the Cibolo Canyon Contracts (the “Cibolo Canyon Assignment of Contracts”) duly executed by Buyer in substantially the form of Exhibit B attached hereto;
(xi) notice letters to the tenants at the Real Property (the “Tenant Notices”) duly executed by Buyer, in substantially the form of Exhibit C attached hereto. Buyer shall promptly deliver the same to all tenants following the Closing and shall provide Sellers with confirmation of such delivery upon Sellers’ request;
(xii) an assignment of all licenses, certificates of occupancy, permits, approvals, authorizations, guaranties, warranties and intangibles with respect to the Crown Ridge Real Property to the extent assignable (but excluding any Excluded Assets) (a “Crown Ridge Assignment of Licenses, Permits, Warranties and General Intangibles”) duly executed by Buyer in substantially the form of Exhibit D attached hereto;
(xiii) an assignment of all licenses, certificates of occupancy, permits, approvals, authorizations, guaranties, warranties and intangibles with respect to the Canyon Springs Real Property to the extent assignable (but excluding any Excluded Assets) (a “Canyon Springs Assignment of Licenses, Permits, Warranties and General Intangibles”) duly executed by Buyer in substantially the form of Exhibit D attached hereto;
(xiv) an assignment of all licenses, certificates of occupancy, permits, approvals, authorizations, guaranties, warranties and intangibles with respect to the Cascades I Real Property to the extent assignable (but excluding any Excluded Assets) (a “Cascades I Assignment of Licenses, Permits, Warranties and General Intangibles”) duly executed by Buyer in substantially the form of Exhibit D attached hereto;
(xv) an assignment of all licenses, certificates of occupancy, permits, approvals, authorizations, guaranties, warranties and intangibles with respect to the Cascades II Real Property to the extent assignable (but excluding any Excluded Assets) (a “Cascades II Assignment of Licenses, Permits, Warranties and General Intangibles”) duly executed by Buyer in substantially the form of Exhibit D attached hereto;
(xvi) an assignment of all licenses, certificates of occupancy, permits, approvals, authorizations, guaranties, warranties and intangibles with respect to the Cibolo Canyon Real Property to the extent assignable (but excluding any Excluded Assets) (a “Cibolo Canyon Assignment of Licenses, Permits, Warranties and General Intangibles”) duly executed by Buyer in substantially the form of Exhibit D attached hereto;
(xvii) all documents relating to each applicable Loan Assumption and required by Existing Lender to effectuate each applicable Loan Assumption (the “Loan Assumption Documents”), which are consistent with the provisions of this Agreement and do not impose any obligation or liability on Buyer that is not expressly contemplated by this Agreement or the applicable Existing Loan Documents, duly executed by Buyer, provided that the delivery in this subsection shall not apply to a particular Loan Assumption if the Lender Consent is not received on or prior to the Closing Date or in the event Buyer elects, in its sole discretion, to forgo the particular Loan Assumption by delivery of a Loan Assumption Rejection Notice in accordance with Section 2.3(d)(ii) or by the delivery of the New Financing Notice referenced in Section 2.3(f);
(xviii) a change in responsibility form for the Exxxxxx Aquifer Protection Plan duly executed by Buyer in substantially the form of Exhibit I attached hereto (a “Change in Responsibility Form”) with respect to the Canyon Springs Asset, which Change in Responsibility Form Buyer shall deliver to the following address promptly following the Closing: Exxxxxx Aquifer Protection Plan, Attn: Mx. Xxxx Xxxxxxxxxxx, 10000 Xxxxxx Xxxx, San Antonio TX 78223;
(xix) a Change in Responsibility Form with respect to the Cibolo Canyon Asset duly executed by Buyer, which Change in Responsibility Form Buyer shall deliver to the following address promptly following the Closing: Exxxxxx Aquifer Protection Plan, Attn: Mx. Xxxx Xxxxxxxxxxx, 10000 Xxxxxx Xxxx, San Antonio TX 78223;
(xx) an Assignment and Amendment Agreement in substantially the form of Exhibit K attached hereto (a “Cascades Assignment and Amendment Agreement”) for the Contract for Marketing of Services for Cascades I with respect to the Cascades I Asset duly executed by Buyer; provided, however, as between Seller and Buyer, Buyer is only assuming the obligations under such Contract for Marketing of Services that arise from and after the Closing;
(xxi) a Cascades Assignment and Amendment Agreement for the Contract for Marketing of Services for Cascades II Seniors with respect to the Cascades II Asset duly executed by Buyer; and
(xxii) a Cascades Assignment and Amendment Agreement for the Contract for Marketing of Services for Cascades II Duplexes with respect to the Cascades II Asset duly executed by Buyer.
(b) With respect to the transactions contemplated hereunder:
(i) all transfer tax returns to the extent required by law and the regulations issued pursuant thereto in connection with the payment of all state or local real property transfer taxes that are payable or arise as a result of the consummation of the transactions contemplated by this Agreement, in each case, as prepared by Sellers and Buyer and duly executed by Buyer; and
(ii) a separate buyer’s closing statement for each Asset, consistent with the terms of this Agreement (the “Buyer Closing Statement”).
