Seller’s Certificate Purchaser shall have received a certificate from Seller, dated as of the Closing Date, reasonably satisfactory in form and substance to Purchaser and its counsel, certifying as to the matters specified in Section 10.1 and Section 10.2 hereof. The matters set forth in such certificate shall constitute representations and warranties of Seller hereunder.
Buyer’s Certificate Buyer shall deliver to Seller at the Closing, a certificate in the form of Exhibit C attached hereto and incorporated herein by this reference.
Selling Stockholders’ Certificate On each of the First Closing Date and the Second Closing Date, as the case may be, the Representatives shall received a written certificate executed by the Attorney-in-Fact of each Selling Stockholder, dated as of such Closing Date, to the effect that:
(i) the representations, warranties and covenants of such Selling Stockholder set forth in Section 1(B) of this Agreement are true and correct with the same force and effect as though expressly made by such Selling Stockholder on and as of such Closing Date; and
(ii) such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date.
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.
Purchaser’s Closing Deliveries Purchaser shall obtain or execute and deliver to Seller at Closing the following documents, all of which shall be duly executed, acknowledged and notarized where required:
Closing Deliveries of Seller At the Closing, Seller shall deliver to Purchaser:
(a) Xxxx of Sale. A xxxx of sale, substantially in the form attached hereto as Exhibit C (the “Xxxx of Sale”), duly executed by Seller; and
Buyer’s Closing Deliveries At the Closing, Buyer shall deliver or cause to be delivered the following:
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.
Closing Deliveries of Buyer At Closing, unless otherwise waived by Seller, Buyer will deliver to Seller the following:
(a) A duly executed counterpart of the Escrow Agreement;
(b) Evidence to Seller’s reasonable satisfaction that the Escrow Fund has been deposited with the Escrow Agent.
(c) an assumption agreement, duly executed by Buyer, pursuant to which Buyer assumes the Assumed Liabilities;
(d) A counterpart to the Lease Termination Agreement duly executed by Landlord under which Landlord agrees to terminate, effective as of December 1, 2008, the Lease Agreement in connection with the consummation of the transactions contemplated by this Agreement;
(e) A counterpart to the Xxxxxxx Termination Agreement duly executed by Owner under which Owner agrees to terminate, effective as of December 1, 2008, the Xxxxxxx Employment Agreement, in connection with the consummation of the transactions contemplated by this Agreement;
(f) A counterpart to the English Termination Agreement duly executed by Xxxxxx English under which Xxxxxx English agrees to terminate, effective as of December 1, 2008, the English Employment Agreement in connection with the consummation of the transactions contemplated by this Agreement;
(g) A counterpart to the Repurchase Termination Agreement duly executed by Owner under which Owner agrees to terminate, effective as of December 1, 2008, the Repurchase Agreement in connection with the consummation of the transactions contemplated by this Agreement;
(h) A counterpart to the Guarantee Termination Agreement duly executed by Owner under which Owner agrees to terminate, effective as of December 1, 2008, the Guarantee Agreement in connection with the consummation of the transactions contemplated by this Agreement;
(i) Copies of resolutions duly adopted by the managing member(s) of Buyer, authorizing and approving the consummation of the transactions contemplated hereby and the execution and delivery of this Agreement and the other documents described herein, each certified as true, complete and in full force and effect as of Closing by a duly authorized officer of Buyer; and
(j) An executed copy of the Promissory Note;
(k) An executed copy of a security agreement by the Buyer in favor of the Seller, substantially in the form attached hereto as “Exhibit C” (the “Security Agreement”); and
(l) An executed copy of the Transition Services Agreement (as defined below); and
(m) Such other instruments and documents as Seller may reasonably request.
Officer’s Certificate as Evidence Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee, and such Officer’s Certificate, in the absence of gross negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.
