The Buyer a. is not an employee benefit or other plan subject to the prohibited transaction provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code") (a "Plan"), or any other person (including an investment manager, a named fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of or purchasing any Certificate with "plan assets" of any Plan; or
The Sellers Section 9.01
Buyer Buyer represents and warrants to Seller as follows:
At Closing Buyer shall deliver to Seller the following:
Seller and Buyer shall work together and cooperate in order to obtain and cause to be delivered to Buyer (for Buyer's use for purposes of obtaining title insurance and confirmatory due diligence in respect of Seller's representations set forth in Section 4.4) and Seller as promptly as practicable following execution of this Agreement, copies of commitments to issue owner's or leasehold title insurance policies ("Title Commitments") for each Site as to ----------------- which Seller has an insurable real property interest ("Insurable Sites") in --------------- accordance with the letter agreement among the Title Company, Seller and Buyer. The costs of obtaining the Title Commitments and title insurance policies pursuant to the Title Commitments (the "Title Policies") (at the rate of $1,100 -------------- per Site up to a maximum of $2,132,900 in the aggregate, which includes "breakage" and "cancellation" fees associated therewith) and fees of the Title Company for attendance at the Closings shall, subject to the last sentence of this Section 6.12(a), be shared equally by Buyer and Seller, and at the Initial Closing, Buyer shall reimburse Seller for Buyer's portion of such costs (to the extent that Buyer's portion of such costs was initially borne by Seller). Except as provided in Section 3.2, any title insurance premiums or costs relating to the Title Policies (other than fees of the Title Company for attendance at the Closings) which are in excess of the $1,100 per Site average or in excess of $2,132,900 in the aggregate shall be paid by Buyer. If, at any proposed Closing (other than the Final Closing) relating to any Insurable Site for which a Title Commitment shall have been issued, Buyer shall be unable to obtain a Title Policy insuring its interest in such Site notwithstanding Buyer's having exercised its commercially reasonable efforts to do so, then, provided that Buyer shall continue to exercise commercially reasonable efforts to obtain such Title Policy, Buyer shall have the right to defer the transfer and assignment of such Site to the next Closing hereunder; provided, however, that, -------- ------- notwithstanding the foregoing, (x) provided that Seller has reasonably cooperated with Buyer in selecting the Sites to be transferred and assigned to Buyer at the Initial Closing, in no event shall Buyer have the right to defer the transfer and assignment of any Site if the effect of such deferral would be that fewer than 350 Sites would be transferred and assigned at the Initial Closing, and (y) Buyer's ability to obtain Title Policies for any or all of the Sites in and of itself shall not be a closing condition hereunder, and any Sites the transfer and assignment of which shall have been deferred pursuant to this sentence shall be transferred and assigned at the next Closing following the date on which Buyer is able to obtain Title Insurance therefor (Buyer hereby agreeing to continue to exercise commercially reasonable efforts to do so) or, if Buyer shall have continued to be unable to obtain Title Insurance therefor, at the Final Closing, regardless of the state of title therefor, subject to the other conditions of this Agreement. Buyer acknowledges and agrees that, unless the conditions set forth in Article VIII shall fail to be satisfied, Buyer shall be obligated to purchase all of the Sites (other than Excluded Sites and Strategic Sites) regardless of the state (or absence) of title thereto, the title defects or other Liens applicable thereto, or the inability to obtain a Title Commitment or Title Policy therefor. Any amounts incurred by Seller pursuant to this Section 6.12 shall be applied toward the Cap described in Section 10.3. Seller's obligations pursuant to the second and third sentences of this Section 6.12(a) shall be determined as if all Excluded Sites and all Strategic Sites were Sites.
SELLERS Fenway Panther Holdings, LLC By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: Asst. Treasurer Address: 000 X. 00xx Xxxxxx Xxx Xxxx, XX 00000 Facsimile: 000-000-0000 Telephone: 000-000-0000 Attention: Xxxxxx X. Xxxxxx Signature Page(s) to Stock Purchase Agreement Antares Capital Corporation By: /s/ Xxxxxxxx Xxxxxxxxxxxx Name: Xxxxxxxx Xxxxxxxxxxxx Title: Duly Authorized Signatory Address: 000 X. Xxxxxx Chicago, IL 60661 Facsimile: 000-000-0000 Telephone: 000-000-0000 Attention: Xxxxxxxx Xxxxxxxxxxxx Signature Page(s) to Stock Purchase Agreement /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Address: 0000 XX 000xx Xxxxxxxxx, XX 00000 Facsimile: 000-000-0000 Telephone: 000-000-0000 Attention: Xxxxxx Xxxxx /s/ Xxxxxxx X. Xxxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxxx Address: 00000 Xxxxxxx Xxxxx Xxxxx, Ohio 40139 Facsimile: Telephone: 000-000-0000 Attention: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Address: Facsimile: Telephone: Attention: CMFG Life Insurance Company f/k/a CUNA Mutual Insurance Society, successor by merger to CUNA Mutual Life Insurance Company By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Sr. Managing Director, Investments Address: Members Capital Advisors, Inc. 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxx, XX 00000 Facsimile: (000) 000-0000 Telephone: (000) 000-0000 Attention: Private Placements CUMIS Insurance Society, Inc. By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Sr. Managing Director, Investments Address: Members Capital Advisors, Inc. 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxx, XX 00000 Facsimile: (000) 000-0000 Telephone: (000) 000-0000 Attention: Private Placements Fast Cat Enterprises, LLC By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: Manager Address: 0000 Xxxxxxx Xxxx Medina, OH 44256 Facsimile: Telephone: (000) 000-0000 Attention: /s/ Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx Address: 00000 Xxxxx Xxxxxxxx Xxxx Xxxx Xxxx, XX 00000 Facsimile: Telephone: Attention: MEMBERS Life Insurance Company By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Sr. Managing Director, Investments Address: Members Capital Advisors, Inc. 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxx, XX 00000 Facsimile: (000) 000-0000 Telephone: (000) 000-0000 Attention: Private Placements /s/ Xxxxxx Xxxx Name: Xxxxxx Xxxx Address: 00000 Xxxxxxxxx Xxxx. Xxxxx 000 Xxxxxxxx, XX 00000 Facsimile: 000-000-0000 Telephone: 000-000-0000 Attention: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Address: 0000 Xxxxxxx Xxx Pleasanton, CA 94566 Facsimile: 000-000-0000 Telephone: 000-000-0000 Attention: Xxxxxx Xxxxxx
Prior to Closing Seller shall deliver to Buyer a list of employees of the Stations that Seller does not intend to retain after Closing. Buyer may interview and elect to hire such listed employees, but not any other employees of Seller. Buyer is obligated to hire only those employees that are under employment contracts (and assume Seller's obligations and liabilities under such employment contracts) which are included in the Station Contracts. With respect to employees hired by Buyer ("Transferred Employees"), to the extent permitted by law, Seller shall provide Buyer access to its personnel records and such other information as Buyer may reasonably request prior to Closing. With respect to such hired employees, Seller shall be responsible for the payment of all compensation and accrued employee benefits payable by it until Closing and thereafter Buyer shall be responsible for all such obligations payable by it. Buyer shall cause all employees it hires to be eligible to participate in its "employee welfare benefit plans" and "employee pension benefit plans" (as defined in Section 3(1) and 3(2) of ERISA, respectively) in which similarly situated employees are generally eligible to participate; provided, however, that all such employees and their spouses and dependents shall be eligible for coverage immediately after Closing (and shall not be excluded from coverage on account of any pre-existing condition) to the extent provided under such plans. For purposes of any length of service requirements, waiting periods, vesting periods or differential benefits based on length of service in any such plan for which such employees may be eligible after Closing, Buyer shall ensure that service with Seller shall be deemed to have been service with the Buyer. In addition, Buyer shall ensure that each such employee receives credit under any welfare benefit plan of Buyer for any deductibles or co-payments paid by such employees and dependents for the current plan year under a plan maintained by Seller. Notwithstanding any other provision contained herein, Buyer shall grant credit to each such employee for all unused sick leave accrued as of Closing as an employee of Seller. Notwithstanding any other provision contained herein, Buyer shall assume and discharge Seller's liabilities for the payment of all unused vacation leave accrued by such employees as of Closing.
Sellers’ Representative By execution of this Agreement, the Sellers hereby irrevocably and unconditionally appoint Nephron Pharmaceuticals Corporation as the Sellers’ Representative of all Sellers, as the attorney-in-fact for and on behalf of each such Seller, and irrevocably agree that the taking by the Sellers’ Representative of any and all actions and the making of any decisions required or permitted to be taken by it or by a Seller under this Agreement or any Transaction Documents to which the Sellers are a party are hereby authorized and approved in all respects, including without limitation the exercise of the power to (i) receive from Buyer and disburse to Sellers any payments constituting any part of the Purchase Price and receive and disburse from and to any Party or any Third Party which may be contemplated to be made under the Transaction Documents, (ii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts with respect to any indemnification claims or disputes, (iii) resolve any indemnification claims or disputes, and (iv) take all actions necessary in the judgment of the Sellers’ Representative for the accomplishment of the other terms, conditions and limitations of this Agreement and the Transaction Documents. The Sellers’ Representative has authority and power to act on behalf of the Sellers with respect to this Agreement and the other Transaction Documents and the disposition, settlement or other handling of all indemnification claims, rights or obligations arising from and taken pursuant to this Agreement and the other Transaction Documents. The Sellers irrevocably agree to be bound by all and any such actions taken by the Sellers’ Representative in connection with this Agreement and the other Transaction Documents to which the Sellers are a party, and Sellers and Buyer shall only be required to acknowledge or act upon written communication signed by the Sellers’ Representative. Each Seller agrees that he, she or it has not, and will not, threaten or commence or join any legal action, which term includes, without limitation, any demand for arbitration proceedings and any complaint to any foreign, federal, state or local agency, court or other tribunal, to assert any claim against the Sellers’ Representative or its advisors for acting in such capacity with respect to this Agreement or the other Transaction Documents. If any Seller commences or joins any such prohibited legal action against the Sellers’ Representative, such Seller agrees to promptly indemnify Sellers’ Representative and advisers of Sellers’ THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [***] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. Representative for all losses, liabilities, reasonable costs or expenses, including without limitation all reasonable fees, disbursements and other charges of attorneys incurred by Sellers’ Representative and/or its advisers in defending such action as well as any monetary judgment obtained against the Sellers’ Representative in such action. The Sellers’ Representative may resign at any time upon 30 days written notice to the Sellers. THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [***] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Purchaser Purchaser was formed solely for the purpose of engaging in the Transactions and activities incidental thereto and has not engaged in any business activities or conducted any operations other than in connection with the Transactions and those incident to its formation. Either Parent or a wholly owned subsidiary of Parent owns beneficially and of record all of the outstanding capital stock of Purchaser.
Prior to the Closing Buyer shall, and shall cause its Affiliates and its and their employees, agents, accountants, legal counsel and other representatives and advisers to, hold in strict confidence all, and not divulge or disclose any, information of any kind concerning the Company and its business; provided, however, that the foregoing obligation of confidence shall not apply to (i) information that is or becomes generally available to the public other than as a result of a disclosure by Buyer or its Affiliates or any of its or their employees, agents, accountants, legal counsel or other representatives or advisers, (ii) information that is or becomes available to Buyer or its Affiliates or any of its or their employees, agents, accountants, legal counsel or other representatives or advisers on a nonconfidential basis prior to its disclosure by Buyer or its Affiliates or any of its or their employees, agents, accountants, legal counsel or other representatives or advisers and (iii) information that is required to be disclosed by Buyer or its Affiliates or any of its or their employees, agents, accountants, legal counsel or other representatives or advisers as a result of any applicable law, rule or regulation of any Governmental Authority; and provided further that Buyer promptly shall notify the Company of any disclosure pursuant to clause (iii) of this Section 9.2(a); and, provided, further, that the foregoing obligation of confidence shall not apply to the furnishing of information by Buyer in bona fide discussions or negotiations with prospective lenders.
