Seller Deliveries At the Closing, subject to the terms and conditions of this Agreement, Seller shall deliver, or cause to be delivered, to the Acquiror Parties:
(a) a counterpart of an assignment substantially in the form attached hereto as Exhibit B (the “Assignment of Interests”), evidencing the conveyance, assignment, transfer and delivery to ETP LLC of the Subject Interests, duly executed by Seller;
(b) a counterpart of a registration rights agreement, substantially in the form attached hereto as Exhibit C (the “Registration Rights Agreement”), duly executed by Seller;
(c) a certificate duly executed by the Secretary or an Assistant Secretary of Seller, dated as of the Closing Date, in customary form, attesting to the resolutions of the board of managers of Seller authorizing the execution and delivery of the Transaction Documents to which Seller is a party and the consummation of the transactions contemplated hereby and thereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of the Closing Date;
(d) a certificate duly executed by an executive officer of Seller, dated as of the Closing Date, in customary form, to the effect that each of the conditions specified in Section 7.2(a) and (b), have been satisfied in all respects;
(e) a certificate dated as of a recent date of the Secretary of State of the State of Delaware with respect to the valid existence and good standing in the State of Delaware of Seller;
(f) a certificate, duly executed and acknowledged by Seller dated as of the Closing Date, in accordance with Treasury Regulation Section 1.1445-2(b)(2), certifying that Seller is not a “foreign person” within the meaning of Section 1445 of the Code; and
(g) duly executed letters of resignation or evidence of removal, effective as of the Closing, of the Resigning Directors and Officers as are required to be delivered pursuant to Section 6.6.
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”).
Seller’s Deliveries At Closing, Seller shall execute and/or deliver to Purchaser the following items (referred to collectively herein as the “Seller’s Closing Items”):
(a) a limited warranty deed conveying to Purchaser good and insurable fee simple title to the Property, free and clear of all liens, encumbrances, restrictions, and easements, except for the Permitted Title Exceptions (the “Deed”);
(b) a quitclaim deed conveying the Property to Purchaser as described on the Survey, if required by Section 7.5 above;
(c) the Project Agreements;
(d) an owner’s affidavit in the form required by Title Company and such other documentation as may be required by Title Company to issue a standard 2006 ALTA Owner’s Policy with respect to the Property (hereinafter referred to as the “Title Policy”) free and clear of all liens, encumbrances, restrictions, and easements whatsoever except for the Permitted Title Exceptions and the “standard printed” survey exception;
(e) such documents, certificates and affidavits reasonably requested by Purchaser Or Title Company to evidence Seller’s authority to enter into this Agreement, perform its obligations hereunder and consummate the sale and purchase transaction contemplated hereby;
(f) a certificate and affidavit signed on behalf of Seller certifying that Seller is not a “foreign corporation”, “foreign partnership”, “foreign trust”, “foreign estate” or “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1954, as amended;
(g) a certificate in favor of Purchaser, its successors, assigns and lenders, certifying that all of the representations and warranties in Article 4 above are true and correct in all material respects as of the date of Closing;
(h) a closing statement, itemizing and approving all receipts and disbursements made in connection with Closing;
(i) a general assignment conveying to Purchaser, without representation or warranty and to the extent assignable, Seller’s rights with respect to any and all tangible and intangible rights, privileges and appurtenances pertaining to the Property, except for the Permitted Title Exceptions; and
(j) any and all other documents or items reasonably necessary or appropriate to complete the Closing, including, but not limited to, any transfer tax forms, affidavits, or broker lien waivers required by applicable law, rule, regulation or otherwise required by the Title Company for the removal of any and all “standard exceptions” on Purchaser’s Title Policy. All of the Seller’s Closing Items shall be in a commercially reasonable form customarily utilized in the jurisdiction where the Property is located in transactions similar to the one contemplated hereby.
Post-Closing Obligations (a) Within ninety (90) days after the Original Restatement Closing Date (or such later date as shall be acceptable to the Agent in its sole discretion), confirmation, together with relevant supporting documents, that the Quoted Eurobond Listing has taken place;
(b) The Credit Parties shall, (i) in a manner satisfactory to the Agent, cooperate with and assist the Agent, the Lenders and their respective attorneys, officers, employees, representatives, consultants and agents (collectively, the “Reviewing Parties” and each, a “Reviewing Party”) in connection with any Reviewing Party’s regulatory review and due diligence of the Credit Parties’ Program in each state or foreign jurisdiction in which any Credit Party originates or purchases Consumer Loans and/or Credit Card Receivables (including participation interests therein), (ii) review and consider in good faith any issues raised by, or comments, recommendations or guidance from, any Reviewing Party with respect to any such lending program (such issues, comments, recommendations and guidance, collectively, the “Diligence Issues”) and (iii) within 90 days (or such longer period as may be agreed to by the Agent in its sole discretion) of any Credit Party’s receipt of written notice of any Diligence Issues from a Reviewing Party, resolve or address any such Diligence Issues, in each case, in a manner satisfactory to the Agent;
(c) The Credit Parties shall deliver, or cause to be delivered to the Agent, within sixty (60) days after the Fifth Restatement Closing Date (or such later date as shall be acceptable [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED to the Agent in its sole discretion), deposit account control agreements executed by the applicable Credit Party and each depository institution for which such Credit Party maintains deposit and other accounts, each in form and substance reasonably satisfactory to the Agent in its sole discretion, covering all deposit accounts and other accounts maintained at such depository institution that are not currently subject to deposit account control agreements in favor of the Agent;
(d) The Credit Parties shall deliver, or cause to be delivered to the Agent, within thirty (30) days after the Fifth Restatement Closing Date (or such later date as shall be acceptable to the Agent in its sole discretion), Intellectual Property Security Agreements executed by the applicable Credit Party covering all federally-registered Intellectual Property Rights that are not currently subject to an Intellectual Property Security Agreement in favor of the Agent;
(e) The Credit Parties shall deliver, or cause to be delivered to the Agent, prior to purchasing any Consumer Loans (or participation interests in Consumer Loans) pursuant to any Bank Transaction Documents (or such later date as shall be acceptable to the Agent in its sole discretion), a revised form of Consumer Loan Agreement to be used under such Bank Transaction Documents which provides that (i) all obligations thereunder are “registered obligations” and all instruments issued thereunder (if any) shall be at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related Treasury regulations promulgated thereunder and (ii) the first page thereof shall have the following legend: “THIS AGREEMENT SHALL NOT CONSTITUTE A “NEGOTIABLE INSTRUMENT””, which form shall be reasonably satisfactory to the Agent and its counsel; and
(f) The Credit Parties shall deliver, or cause to be delivered to the Agent, within thirty (30) days after the Fifth Restatement Closing Date (or such later date as shall be acceptable to the Agent in its sole discretion), updated insurance certificates and updated insurance endorsements with respect to the applicable Credit Parties, in each case, in form and substance reasonably satisfactory to Agent and evidencing the insurance policies and endorsements thereto required to be maintained in accordance with Section 8.11.
Conditions to Obligations of Buyer and Seller The obligations of Buyer and Seller to complete the transactions contemplated by this Agreement are subject to the satisfaction at or prior to the Closing of the following conditions:
Closing Obligations At Closing, the following events shall occur, each being a condition precedent to the others and each being deemed to have occurred simultaneously with the others:
(a) Seller shall execute, acknowledge and deliver to Buyer
(i) an Assignment, Bxxx of Sale and Conveyance of the Assets, effective as of the Effective Time to Buyer (in sufficient counterparts to facilitate filing and recording) substantially in the form of Exhibit C conveying the Assets; and
(ii) such other assignments, bills of sale, or deeds necessary to transfer the Assets to Buyer, including without limitation any conveyances on official forms and related documentation necessary to transfer the Assets to Buyer in accordance with requirements of governmental regulations (collectively, the “Conveyances”);
(b) Buyer shall deliver to Seller the cash portion of the Purchase Price in immediately available funds, less the amount of the Deposit and any additional deposit paid to Seller pursuant to Section 10.1, and the Purchase Price Units;
(c) Seller shall deliver to Buyer possession of the Assets;
(d) Seller and Buyer shall execute and deliver letters in lieu directing all purchasers of production to pay Buyer the proceeds attributable to production from the Assets from and after the Effective Time;
(e) Buyer shall deliver to Seller evidence of appropriate federal, state and local bonds relating to ownership of the Assets after the Closing and certificates of insurance evidencing that Buyer has obtained appropriate insurance covering the Assets;
(f) Seller shall deliver to Buyer certificates substantiating non-foreign status in accordance with Treasury Regulations under Section 1445 of the Code, in the form of Exhibit D (“FIRPTA Certificate”);
(g) Buyer shall prepare and Seller shall execute and deliver to Buyer all forms necessary for Buyer to assume operations on the Assets as agreed to by the Parties; and
(h) Seller shall deliver to Buyer the certificates for all of the GMO Stock and all of the MV Stock properly executed for assignment to Buyer.
Seller Deliverables At the Closing, Seller shall deliver, or cause to be delivered (each, a “Seller Deliverable”, and, collectively, the “Seller Deliverables”):
i. to PropCo Purchaser, all agreements, documents, instruments, certificates and other deliverables required to be delivered by the Selling Entities or Real Estate Sellers, as applicable, at or prior to the Closing pursuant to Section 5(a) of the Real Estate Purchase Agreement, in each case, duly executed by the applicable Selling Entities or Real Estate Sellers;
ii. to OpCo Purchaser, an IRS Form W-9 duly executed by each applicable Selling Entity (or, with respect to each Selling Entity that is a disregarded entity for U.S. federal income tax purposes, the regarded owner of such Selling Entity for U.S. federal income tax purposes);
iii. to OpCo Purchaser, stock or other applicable ownership certificates representing all of the outstanding OpCo Acquired Interests; iv. to OpCo Purchaser, the Intellectual Property License, duly executed by the applicable Selling Entities;
v. to OpCo Purchaser, the Transition Services Agreement, duly executed by the applicable Selling Entities, if applicable;
vi. to OpCo Purchaser, control of all keys, codes, combinations, and/or passwords to the machinery, equipment, trucks and automobiles at, on or in the Premises, to the extent in the possession of the applicable Selling Entities;
vii. to OpCo Purchaser, written resignations, effective as of the Closing Date, of all directors and members of the board of directors, board of managers or similar governing body, and officers of each OpCo Acquired Company;
viii. to OpCo Purchaser, the Seller Financing Loan Agreement, duly executed by Seller; ix. to each of OpCo Purchaser and PropCo Purchaser, the Contingent Lease Support Agreement, duly executed by Seller; x. to OpCo Purchaser, an aggregate amount of cash equal to the Reserve Amount (as defined in the Contingent Lease Support Agreement);
xi. to the Title Company, title affidavits in the forms attached hereto as Exhibit I, as well as any other affidavit, indemnity, certificate or instrument reasonably required by the Title Company in order to effectuate the issuance of the Title Policy subject only to Permitted Liens; and xii. to each of OpCo Purchaser and PropCo Purchaser, as applicable, each of the other Ancillary Agreements, duly and validly executed by the parties thereto other than OpCo Purchaser or PropCo Purchaser.
Buyer’s Closing Obligations At the Closing, Buyer shall:
Seller’s Deliveries at Closing At the Closing and unless otherwise waived in writing by the Buyer, the Sellers shall deliver to the Buyer the following, each of which shall be in a form reasonably acceptable to the Buyer (collectively, "Sellers' Closing Documents"):
(a) The Bill of Sale, duly executed and notarized by XeQute;
(b) All Third Party Consents and the release of all Liens on the Assets by the Lien Holders, together with the Instruments of Assignment and Assumption, duly executed by XeQute;
(c) The Sellers' Officer's Certificates, duly executed on behalf of Vertex and XeQute;
(d) Certified copies of any resolutions required to duly authorize and approve the Contemplated Transaction and the execution, performance and delivery of this Agreement, Sellers' Closing Documents and of all of the other documents to be executed and performed by the Sellers in connection with the Contemplated Transaction;
(e) The duly executed opinion of the Sellers' counsel, dated as of the Closing Date and addressed to the Buyer ("Sellers' Opinion"), in form and substance as set forth in the form annexed to this Agreement as Exhibit C and subject to the standard exceptions set forth in Sellers' Opinion. In rendering Sellers' Opinion, the Sellers' counsel may rely upon certificates of governmental officials and may place reasonable reliance upon certificates of the Sellers; and
(f) Such other instrument and documents, as the Buyer and the Buyer's counsel reasonably deem necessary or desirable in order to consummate the Contemplated Transaction, including without limitation evidence of the Sellers having taken all steps required to be taken by them prior to or at Closing under Article VI and Article VII hereof, including evidence of having obtained directors and officers liability insurance with the coverage described therein and paid the premium for same at the Closing.
Certain Post-Closing Obligations As promptly as practicable, and in any event within the time periods after the Effective Date specified in Schedule 5.14 or such later date as the Administrative Agent reasonably agrees to in writing, including to reasonably accommodate circumstances unforeseen on the Effective Date, Holdings, the Parent Borrower and each other Loan Party shall deliver the documents or take the actions specified on Schedule 5.14 that would have been required to be delivered or taken on the Effective Date but for the proviso to Section 4.01(f), in each case except to the extent otherwise agreed by the Administrative Agent pursuant to its authority as set forth in the definition of the term “Collateral and Guarantee Requirement”.
