Company Deliveries The Company shall deliver to Buyer at or prior to the Closing, each of the following:
(i) a certificate, dated as of the Closing Date and executed on behalf of the Company by its Chief Executive Officer, to the effect that each of the conditions set forth in Section 6.10(b), 7.3(a) and Sections 7.3(c) through 7.3(i) inclusive has been satisfied;
(ii) a certificate, dated as of the Closing Date and executed on behalf of the Company by its Secretary, certifying the Company’s (A) articles, (B) bylaws, (C) board resolutions approving the Share Purchase and adopting this Agreement, and (D) other matters in Buyer’s reasonable discretion;
(iii) a written opinion from Company Counsel, covering the matters set forth on Exhibit A, dated as of the Closing Date and addressed to Buyer;
(iv) the General Escrow Agreement and the Separate Escrow Agreement, each dated as of the Closing Date and executed by the Closing Company Shareholders and the Shareholders’ Agent;
(v) the Employment Documentation, as provided by Buyer, executed by as many of the individuals set forth in Schedule 7.3(f) as is possible, consistent with Section 6.10(a);
(vi) evidence satisfactory to Buyer of (A) the resignation and release of each of the directors and each of the officers of the Company and of each Subsidiary in office immediately prior to the Closing as directors and/or officers, as applicable, of the Company and of each such Subsidiary, effective no later than immediately prior to the Closing, and (B) if requested by Buyer, the appointment of new officers and directors of the Company and of each Subsidiary which appointments are to become effective at the Closing;
(vii) the Consulting Agreement duly executed by the Designated Contractor;
(viii) unless otherwise requested by Buyer in writing no less than three Business Days prior to the Closing Date, (A) a true, correct and complete copy of resolutions adopted by the Company Board, certified by the Secretary of the Company, authorizing the termination of each or all of the Company Employee Plans that are “employee benefit plans” subject to ERISA, including the Company’s 401(k) Plan (the “401(k) Plan”), and (B) an amendment to the 401(k) Plan, executed by the Company, that is sufficient to assure compliance with all applicable requirements of the Code and regulations thereunder so that the Tax-qualified status of the 401(k) Plan shall be maintained at the time of its termination, with such amendment and termination to be effective on the date immediately preceding the Closing Date and contingent upon the Closing;
(ix) a certificate from the Ministry of Government Services (Ontario), and each other state, province or other jurisdiction in which the Company or any Subsidiary is qualified to do business as a domestic or foreign corporation dated within three days prior to the Closing Date certifying that the Company or such Subsidiary is in good standing;
(x) evidence satisfactory to Buyer of (A) the novation or consent to assignment of any Person whose novation or consent to assignment, as the case may be, may be required in connection with the Share Purchase or any other transaction contemplated by this Agreement under the contracts listed or described in Schedule 1.5(b)(x)-1 hereto, (B) the termination of each of the contracts of the Company listed or described in Schedule 1.5(b)(x)-2 hereto, and (C) the amendment of each of the contracts of the Company listed or described in Schedule 1.5(b)(x)-3 hereto in the manner described on such Schedule with respect to each such contract;
(xi) the Spreadsheet completed to include all of the information specified in Section 6.8 in a form reasonably acceptable to Buyer and a certificate executed by the Chief Executive Officer of the Company, dated as of the Closing Date, certifying that such Spreadsheet is true, correct and complete;
(xii) the Transaction Expenses Certificate, which certificate shall be accompanied by such supporting documentation, information and calculations as are reasonably necessary for Buyer to verify and determine the amount of Transaction Expenses;
(xiii) the Company Net Debt Balance Certificate, which certificate shall be accompanied by such supporting documentation, information and calculations as are reasonably necessary for Buyer to verify and determine the Company Net Debt Balance; and
(xiv) complete and correct copies of all executed stock option grants and agreements relating to the New Company Options, in the form provided by the Buyer.
Company Deliverables The Company shall have delivered the Company Deliverables in accordance with Section 2.2(a).
Purchaser Deliveries At the Closing, Purchaser shall deliver to Seller:
(a) The Assignment and Assumption Agreement;
(b) Purchaser’s acceptance of its appointment as successor trustee or custodian, as applicable, of the XXX and Xxxxx Accounts included in the Deposits and assumption of the fiduciary obligations of the trustee or custodian with respect thereto, as contemplated by Section 2.4;
(c) The Branch Lease Assignments and such other instruments and documents as any landlord under a Branch Lease may reasonably require as necessary or desirable for providing for the assumption by Purchaser of a Branch Lease, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(d) The Tenant Assignments and such other instruments and documents as any subtenant under a Tenant Lease may reasonably require as necessary or desirable for providing for the assumption by Purchaser of a Tenant Lease, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(e) The Equipment Lease Assignments and such other instruments and documents as any lessor under an Equipment Lease may reasonably require as necessary or desirable for providing for the assumption by Purchaser of an Equipment Lease, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(f) The Assumed Contract Assignments and such other instruments and documents as any party under an Assumed Contract may reasonably require as necessary or desirable for providing for the assumption by Purchaser of an Assumed Contract, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(g) The Loan Documents Assignment and such other instruments and documents as Seller may reasonably require as necessary or desirable for providing for the assumption by Purchaser of the Loan Documents, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date; and
(h) The certificate required to be delivered by Purchaser pursuant to Section 9.2(e).
Seller Deliveries At the Closing, Seller shall deliver to Purchaser:
(a) Massachusetts Quitclaim Deeds in substantially the form of Schedule 3.5(a), pursuant to which the Owned Real Property shall be transferred to Purchaser “AS IS”, “WHERE IS” and with all faults provided, however, that Purchaser receives a clean fee title policy upon closing;
(b) A xxxx of sale in substantially the form of Schedule 3.5(b), pursuant to which the Personal Property shall be transferred to Purchaser “AS IS”, “WHERE IS” and with all faults;
(c) An assignment and assumption agreement in substantially the form of Schedule 3.5(c) (except as otherwise required by local state law), with respect to (i) the Liabilities, (ii) the Loans and (iii) the Reimbursement Obligations (the “Assignment and Assumption Agreement”);
(d) Lease assignment and assumption agreements, in recordable form, in substantially the form of Schedule 3.5(d), with respect to each of the Branch Leases and the ATM Lease (the “Lease Assignments”);
(e) An Officer’s Certificate in substantially the form of Schedule 3.5(e);
(f) The Memorandum of Understanding;
(g) The Draft Closing Statement;
(h) Seller’s resignation as trustee or custodian, as applicable, with respect to each XXX or Xxxxx Account included in the Deposits and designation of Purchaser as successor trustee or custodian with respect thereto, as contemplated by Section 2.4; and
(i) Such other documents as the parties determine are reasonably necessary to consummate the P&A Transaction as contemplated hereby.
Buyer Deliveries At the Closing the Buyer shall deliver to the Company the Purchase Price.
Closing Deliveries (a) At the Closing, Compost shall deliver to the Purchaser:
(i) certificates representing the Company Common Stock, duly endorsed for transfer to the Purchaser or accompanied by duly executed assignment documents, which shall transfer to the Purchaser good and valid title to the Company Common Stock, free and clear of all liens, claims, restrictions and encumbrances of any nature whatsoever;
(ii) evidence of all consents, waivers and/or approvals in form reasonably acceptable to the Purchaser with respect to the transactions contemplated in this Agreement as further described on Schedule 5.3;
(iii) Limited Release of Claims Agreements executed by Compost, Wasteco Ventures Limited, a British Virgin Islands corporation ("Wasteco"), Wafra Acquisition Fund 7, L.P., executing such Limited Release solely to evidence its lack of objection to the execution of such document by Wasteco ("Wafra"), Xxx Xxxxxxxxx ("Waxenbaum"), Xxxxx Xxxxx ("Xxxxx") and Xxxxxx X. Xxxxx ("Xxxxx") releasing the Company in the forms attached hereto as Exhibits C-1 through C-5;
(iv) all corporate, accounting, business and tax records of the Company;
(v) a legal opinion from Xxxxxxxxx Traurig, counsel to Compost, in a form attached hereto as Exhibit D.
(vi) Employment and Covenant Not to Compete Agreements between the Purchaser and each of Xxxxxx X. Xxxxx and Xxx Xxxxxxxxx, attached as Exhibit E hereto; and
(vii) new real property lease with respect to the office property owned by an affiliate of Xxxxx, and located at 000 Xxxxxx Xxxx, Denville, New Jersey 07834, in the form attached hereto as Exhibit F;
(viii) Covenant Not to Compete Agreement between Compost and the Purchaser, in the form attached hereto as Exhibit G.
(ix) Certificate of Incumbency of Compost;
(x) Good Standing Certificate of the Company;
(xi) Good Standing Certificate of Compost; and
(xii) Earnout Agreement between Compost and the Purchaser in the form attached hereto as Exhibit H (the "Earnout Agreement").
(b) At the Closing, the Purchaser shall deliver the following to Compost:
(i) $37,500,000 as adjusted by the Estimated Adjustment Amount set forth in Section 3.3;
(ii) Employment and Covenant Not to Compete Agreements between the Purchaser and each of Xxxxxx X. Xxxxx and Xxx Xxxxxxxxx, attached as Exhibit E;
(iii) Earnout Agreement, attached as Exhibit H;
(A) The Purchaser shall either provide documents confirming the removal of Compost from any and all personal guaranties and/or surety obligations listed on Schedule 3.4(b)(iv) or, alternatively, the Purchaser may provide an unsecured indemnity to Compost with respect to the Compost guaranties and surety obligations reasonably satisfactory to Compost and the Purchaser, and (B) the Purchaser shall either provide documents confirming the removal of Xxxxx from any and all personal guaranties and/or surety obligations listed on Schedule 3.4(b)(iv) or provide Xxxxx with a financial guaranty bond enforceable in the State of New Jersey from AIG or National Union (or another insurer acceptable to Xxxxx in his sole discretion) (the "Insurer") providing for payment directly to Safeco Insurance Company of the full amount of any such guaranty or surety obligation within 15 days after Xxxxx provides written notice to such Insurer that a formal demand has been made against Xxxxx. The bond may provide that if the Insurer deems the claim unjustified, the Insurer may defend against such claim in the name and place of Xxxxx and shall indemnify and hold him harmless from any cost, expense (including but not limited to legal fees) or liability that may arise out of the failure to pay and any delay in payment;
(v) a legal opinion of Xxxxx Liddell & Xxxx LLP, counsel to the Purchaser, in a form attached hereto as Exhibit I;
(vi) Good Standing Certificate of Purchaser; and
(vii) Incumbency Certificate of Purchaser ARTICLE IV
Post-Closing Deliveries (a) The Borrower hereby agrees to deliver, or cause to be delivered, to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, the items described on Schedule 5.15 hereof on or before the dates specified with respect to such items, or such later dates as may be agreed to by, or as may be waived by, the Administrative Agent in its sole discretion.
(b) All representations and warranties contained in this Agreement and the other Loan Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described above within the time periods required above and in Schedule 5.15, rather than as elsewhere provided in the Loan Documents); provided that (x) to the extent any representation and warranty would not be true because the foregoing actions were not taken on the Closing Date or, following the Closing Date, prior to the date by which such action is required to be taken by Section 5.15(a), the respective representation and warranty shall be required to be true and correct in all material respects at the time the respective action is taken (or was required to be taken) in accordance with the foregoing provisions of this Section 5.15 (and Schedule 5.15) and (y) all representations and warranties relating to the assets set forth on Schedule 5.15 pursuant to the Security Documents shall be required to be true in all material respects immediately after the actions required to be taken under this Section 5.15 (and Schedule 5.15) have been taken (or were required to be taken), except to the extent any such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.
Seller’s Closing Deliveries Seller shall have delivered to Purchaser the following at Closing:
(a) the Assignment, the Bill xx Sale and other instruments of transfer to effectively assign, transfer and convey good and marketable title to the Purchased Assets as Purchaser shall reasonably request, in form and substance reasonably satisfactory to Purchaser;
(b) copies of the Records which Purchaser may reasonably request;
(c) a certified copy of Resolutions of the Board of Directors of Seller authorizing the execution, delivery and performance of this Agreement;
(d) a certificate of good standing of Seller from the Secretary of State of Georgia;
(e) evidence satisfactory to Purchaser that all Liens described on Schedule 5.3(a) herein have been removed or otherwise addressed to Purchaser's satisfaction;
(f) a list of the Accounts Receivable from all Customers (Reports 18A and 19A) and a list of the Unearned Revenue (Report 17), each as of the last NRTC billing period ending prior to the Closing Date;
(g) a certificate signed by Seller's president, dated the Closing Date, to the effect that the conditions set forth in this Article VIII have been satisfied;
(h) an opinion of Jamex X. Xxxx, Xx., Xxq., counsel to Seller, in form and substance reasonably acceptable to Purchaser;
(i) a certificate signed by Seller's president, dated the Closing Date, regarding the transfer of Seller's account at Huntington Bank;
(j) a Noncompetition Agreement with Seller substantially in the form attached hereto as Schedule 8.9; and
(k) such other documents and instruments as may be reasonably requested and satisfactory to Purchaser and its counsel in connection with Seller's satisfaction of each of its obligations hereunder.
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.
Purchaser Deliverables The Purchaser shall have delivered its Purchaser Deliverables in accordance with Section 2.2(b).
