Second Closing The obligation of the Company to issue, sell and deliver the Series B Preferred Shares at the Second Closing is subject to the fulfillment to the reasonable satisfaction of the Company at or prior to the Second Closing of the following conditions:
(a) The Second Closing Investors shall have delivered the Second Purchase Price in accordance with Section 2.4(b);
(b) Each Second Closing Investor shall have delivered its executed counterpart signature page to this Agreement;
(c) The Amended and Restated Shareholders Agreement, duly executed by the New Series B Investors and the holders of at least a majority of the outstanding shares of Common Stock on a fully-diluted basis, including a majority of the Series A Preferred Stock voting as a separate class and on a fully-diluted and as converted basis;
(d) The First Amendment to Registration Rights Agreement, duly executed by a majority of the holders of Registrable Securities (as defined the Original Registration Rights Agreement);
(e) Each of the representations and warranties of the Investors contained in Article VIII shall be true, correct and complete in all material respects on and as of the Second Closing Date as though then made, except for such representations and warranties which expressly speak as of a certain date, which representations and warranties shall be true, correct and complete in all material respects as of the date specified.
(f) Section 7.4(a) of the Series A Preferred Stock Purchase Agreement shall be amended to read in its entirety as follows:
(a) (i) As of the First Closing, the authorized capital stock of the Company consisted solely of (1) ten million (10,000,000) shares of Common Stock, of which 1,696,284 shares were issued and outstanding; and (2) three million (3,000,000) shares of preferred stock, $.0001 par value per share, of which 2,250,000 shares had been designated as Series A Preferred Stock and 962,101 shares were issued and outstanding. The Company had reserved for issuance (x) sufficient shares of Common Stock for issuance upon conversion or redemption of all outstanding or authorized Series A Preferred Shares and (y) 2,100,000 shares of Common Stock upon exercise of options pursuant to its 2004 Stock Option Incentive Plan. Immediately after the First Closing, the capitalization of the Company was as set forth in the Capitalization Schedule attached to Schedule 7.4, which Capitalization Schedule and Schedule 7.4 (A) reflected the capitalization of the Company both on an actual shares outstanding basis and on a fully diluted basis assuming conversion of all convertible securities and the exercise of all outstanding options and warrants and all options reserved for future grant under any stock option plans and (B) set forth (I) each outstanding option, warrant or other right to purchase shares of capital stock of the Company or any of its Subsidiaries and (II) for each such option, warrant or right, the holder thereof, the date of grant, the exercise price and the number of shares subject thereto.
Closing; Closing Date Closing" and "Closing Date" have the meanings set forth in Section 5.3.
Third Closing At any time sixty one (61) to ninety (90) days following the Second Closing Date, subject to the mutual agreement of the Buyer and the Company, for the “Third Closing Date” and subject to satisfaction of the conditions set forth in Sections 7 and 8, (A) the Company shall deliver to the Buyer the following: (i) the Third Debenture; (ii) an amendment to the Transfer Agent Instruction Letter instructing the Transfer Agent to reserve that number of shares of Common Stock as is required under Section 4(g) hereof, if necessary; and (iii) an officer’s certificate of the Company confirming, as of the Third Closing Date, the accuracy of the Company’s representations and warranties contained herein and updating Schedules 3(b), 3(c) and 3(k) as of the Third Closing Date, and (B) the Buyer shall deliver to the Company the Third Purchase Price.
Seller’s Closing Documents At the Closing, Seller shall deliver to Purchaser the following, in form and substance reasonably acceptable to Purchaser:
(a) A special warranty deed executed by Seller (the “Deed”), in a form customary for the jurisdiction where the Property is located and otherwise satisfactory to Seller, Purchaser and Title Insurer, free and clear of all liens, encumbrances, security interests, options and adverse claims of any kind or character except the Permitted Encumbrances and the encumbrance of the Assumed Loan.
(b) A Xxxx of Sale, executed by Seller (the “Xxxx of Sale”) in the form attached hereto as Exhibit O, transferring, conveying and assigning and warranting to Purchaser, the Personal Property, free and clear of all liens, encumbrances, security interests, options and adverse claims of any kind or character other than the Permitted Encumbrances and the encumbrance of the Assumed Loan, together with the original certificates of title thereto, if any.
(c) An assignment (the “Contract Assignment”) in the form attached hereto as Exhibit P, executed by Seller, to Purchaser, of (i) those of the Contracts which Purchaser has elected in writing to assume (the “Assigned Contracts”) with the agreement of Seller to indemnify, protect, defend and hold Purchaser harmless from and against any and all claims, damages, losses, costs and expenses (including attorneys’ fees) arising in connection with the Assigned Contracts and related to the period prior to the Closing and a comparable indemnity from Purchaser relating to the period following the Closing, (ii) any and all guarantees and warranties used or made in connection with the operation, construction, improvement, alteration or repair of the Property, and (iii) all right, title and interest of Seller and its agents in and to the Intangible Personal Property (including the Governmental Approvals to the extent assignable).
(d) An assignment of lessor’s interest in the Leases (the “Lease Assignment”) in the form attached hereto as Exhibit Q executed by Seller, to Purchaser, together with an agreement by Seller to indemnify, protect, defend and hold Purchaser harmless from and against any and all claims, damages, losses, costs and expenses (including attorneys’ fees) arising in connection with the Leases relating to the period prior to the Closing and a comparable indemnity from Purchaser relating to the period following the Closing.
(e) To the extent not previously delivered to Purchaser, originals of the Leases, the Contracts which have not been terminated pursuant to Section 9(c), certificate(s) of occupancy and other instruments evidencing the Governmental Approvals in Seller’s possession or, if such originals are not available, copies certified by Seller to be true, correct and complete copies of such originals.
(f) Any keys in the possession of Seller to all locks located in the Property.
(g) Letters executed by Seller and Seller’s management agent, if any, addressed to all Tenants, in form of Exhibit R attached hereto, notifying and directing payment of all rent and other sums due from Tenants from and after the date of the Closing to be made at Purchaser’s direction.
(h) Reasonable proof of the due authorization, execution and delivery by Seller of this Agreement and the documents delivered by Seller pursuant hereto.
(i) A Rent Roll, prepared not more than one (1) business day prior to Closing, certified by Seller to be true and correct.
(j) An affidavit from Seller in the form attached hereto as Exhibit L certifying that such Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code.
Seller’s Closing Obligations On the Closing Date, Seller, at its sole cost and expense, will deliver to Purchaser the following items:
(a) A special warranty deed (the “Deed”), duly executed and acknowledged by Seller, conveying to Purchaser the Real Property and the Improvements, subject only to the Permitted Exceptions;
(b) A xxxx of sale in the form attached hereto as Exhibit C (the “Xxxx of Sale”), duly executed by Seller, assigning and conveying to Purchaser, without representation or warranty, title to the Personal Property;
(c) A counterpart original of an assignment and assumption of Seller’s interest, as lessor, in the Leases and Security Deposits in the form attached hereto as Exhibit B (the “Assignment of Leases”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title and interest, as lessor, in the Leases and Security Deposits;
(d) A counterpart original of an assignment and assumption of Seller’s interest in the Service Contracts (other than any Service Contracts as to which Purchaser has notified Seller prior to the expiration of the Evaluation Period that Purchaser elects not to assume at Closing) and the Licenses and Permits in the form attached hereto as Exhibit A (the “Assignment”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title, and interest, if any, in such Service Contracts and the Licenses and Permits;
(e) The Tenant Notice Letters, duly executed by Seller, with respect to the Tenants;
(f) Evidence reasonably satisfactory to Purchaser and the Title Company that the person executing the documents delivered by Seller pursuant to this Section 10.3 on behalf of Seller has full right, power, and authority to do so;
(g) A certificate in the form attached hereto as Exhibit I (“Certificate as to Foreign Status”) certifying that Seller is not a “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended;
(h) All original Leases, to the extent in Seller’s possession, the original Major Tenant Estoppels and any other estoppels as described in Section 7.2, SNDAs as described in Section 7.3 and all original Licenses and Permits and Service Contracts in Seller’s possession bearing on the Property;
(i) A certificate, dated as of the Closing Date, stating that the representations and warranties of Seller contained in Section 8.1 are true and correct in all material respects as of the Closing Date (with appropriate modifications to reflect any changes therein that are not prohibited by this Agreement, including but not limited to updates to the Lease Schedule, Schedule of Service Contracts and Arrearage Schedule as set forth in Section 9.1(b));
(j) An Affidavit of Title in form and substance reasonably satisfactory to the Title Company; and
(k) A counterpart original of an operating agreement in the form of Exhibit L attached to this Agreement, duly executed by Seller or an affiliate of Seller (the “Operating Agreement”).
Subsequent Closing The sale, contribution and transfer of the Drag-Along Shares by the Drag-Along Sellers to Purchaser (the "Subsequent Closing") shall take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx, 00 xxx xx Xxxxxxxx Xxxxx-Xxxxxx, 00000 Xxxxx, at 10:00 a.m. and at the offices of Lexence N.V., Xxxxx Van Anrooystraat, 1076 AD Amsterdam; The Netherlands, as soon as possible after the Initial Closing. In view of the Subsequent Closing, Purchaser undertakes to implement the drag-along provided in the Former Shareholders Agreement.
(a) At the Subsequent Closing, each of the Drag-Along Sellers shall deliver to Purchaser:
(i) a joinder to this Agreement as a Drag-Along Seller;
(ii) a transfer order (ordre de mouvement) for the transfer to Purchaser of the Shares duly executed by such Drag-Along Seller in favor of Purchaser;
(iii) a copy of a confirmation letter from such Drag-Along Seller, sent by facsimile to the Notary, that (i) the Drag-Along Shares of such Drag-Along Seller have been transferred and (ii) the Deed of Issuance may be executed;
(iv) a power of attorney in favor of Purchaser authorizing Purchaser to terminate the Former Shareholders' Agreement and all ancillary agreements relating thereto as of the Subsequent Closing Date;
(v) the New Shareholders' Agreement from each of the Drag-Along Sellers; and
(vi) all other previously undelivered documents required to be delivered by each of the Drag-Along Sellers, to Purchaser at or prior to the Subsequent Closing in connection with the Transactions.
(b) At the Subsequent Closing, Purchaser shall deliver to each of the Drag-Along Sellers:
(i) the Per Share Amount due to the Drag-Along Sellers in respect of the Drag-Along Shares;
Purchaser’s Closing Documents Purchaser shall obtain or execute and ----------------------------- deliver to Seller at Closing the following documents, all of which shall be duly executed and acknowledged where required and shall survive the Closing:
Purchaser Closing Deliveries No later than one (1) Business Day prior to the Closing Date (except for the balance of the Purchase Price which is to be delivered at the time specified in Section 2.2.4), Purchaser shall deliver to the Escrow Agent (for disbursement to the applicable Seller upon the Closing) the following items with respect to each Property being conveyed at such Closing:
(a) A title affidavit (or at Purchaser’s option an indemnity) pertaining to Purchaser’s activity on the applicable Property prior to Closing, in the customary form reasonably acceptable to Purchaser, to enable Title Insurer to delete the standard exceptions to the title insurance policy set forth in this Agreement (other than matters constituting any Permitted Exceptions and matters which are to be completed or performed post-Closing) to be issued pursuant to the Title Commitment; provided that such affidavit does not subject Purchaser to any greater liability, or impose any additional obligations, other than as set forth in this Agreement;
(b) Any declaration or other statement which may be required to be submitted to the local assessor with respect to the terms of the sale of such Property;
(c) A closing statement executed by Purchaser;
(d) A counterpart of the General Assignment, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable;
(e) A counterpart of the Leases Assignment, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable;
(f) A counterpart of the Tenant Notices, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable, to be delivered to the Tenants by Purchaser promptly following Closing;
(g) Resolutions, certificates of good standing, and such other organizational documents as Title Insurer shall reasonably require evidencing Purchaser’s or Purchaser Designated Entities’, as applicable, authority to consummate this transaction; and
(h) If applicable and only with respect to the Runaway Bay I, the Xxxxxx’x Pointe, and Xxxx Bridge Crossing Properties, the Loan Documents to be executed by Purchaser or Purchaser’s Designated Entity, as applicable.
Seller’s Closing Deliveries At least one (1) business day prior to the Closing, Seller shall deliver or cause to be delivered to Escrow Agent the following:
(a) A deed executed by Seller, in the form of Exhibit E (the “Deed”).
(b) A Xxxx of Sale executed by Seller, in the form of Exhibit F attached hereto (the “Xxxx of Sale”).
(c) A certification from the Seller as required by the Foreign Investors Real Property Tax Act, as amended, that Seller is not a “foreign person” (the “Certificate of Non-Foreign Status”).
(d) A customary affidavit sufficient for the Title Company to issue the Approved Title Policy and to delete any exceptions for parties in possession (other than tenants under the Leases) and mechanics’ or materialmen’s therefrom (the “Title Affidavit”).
(e) A General Assignment executed by Seller, in the form of Exhibit H attached hereto assigning to Purchaser all of Seller’s interest under the service contracts to be assigned to Purchaser at Closing (the “General Assignment”).
(f) An Assignment of Leases executed by Seller, in the form of Exhibit I attached hereto, assigning to Purchaser all of Seller’s interest under the Leases to be assigned to Purchaser at Closing (the “Assignment of Leases”).
(g) A closing statement reflecting the Purchase Price and all adjustments, prorations, credits, costs and expenses set forth herein (the “Closing Statement”) approved by Seller.
(h) A notice in the form attached hereto as Exhibit K (the “Tenant Notice”), executed by Seller which Purchaser shall send to each tenant under each of the Leases promptly after the Closing.
(i) A Seller’s residency certification/exemption, if required by applicable law.
(j) A closing instruction letter from Seller to the Escrow Agent.
(k) Any other funds, documents, instruments or agreements (signed by Seller and acknowledged, if appropriate) reasonably necessary to effectuate the transaction contemplated by this Agreement.
(l) A certificate executed by Seller certifying to Purchaser that Seller has no actual knowledge of any breach by Seller of any of the representations and warranties made by Seller in this Agreement or, if applicable, disclosing any such breach.
Seller Closing Deliveries Seller shall deliver the following documents to the Escrow Agent on or before the Closing Date:
(a) With respect to the Asset:
(i) the Deed duly executed by Seller;
(ii) the Assignment of Leases duly executed by Seller;
(iii) a xxxx of sale duly executed by Seller in substantially the form of Exhibit F attached hereto, relating to all fixtures, chattels, equipment and articles of Personal Property owned by Seller which are currently located upon or attached to the Property and used solely in connection with the operation of the Property (but not including items owned or leased by tenants, the Property Manager, or which are leased by Seller or any Excluded Assets);
(iv) the Assignment of Contracts duly executed by Seller;
(v) the Tenant Notices duly executed by Seller;
(vi) notice letters to the vendors under the Assumed Contracts duly executed by Seller;
(vii) an affidavit that Seller is not a “foreign person” within the meaning of the Foreign Investment in Real Property Tax Act of 1980, as amended, in substantially the form of Exhibit G attached hereto;
(viii) the Assignment of Licenses, Permits, Warranties and General Intangibles duly executed by Seller; and
(ix) to the extent in Seller’s possession, copies of the Space Leases which delivery may be satisfied by delivery of the on-site property management office at the Property.
(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 Seller and Buyer and duly executed by Seller; and
(ii) a Closing Statement duly executed by Seller.
