The Company’s Deliveries. At the Closing, the Company will deliver, or cause to be delivered, to each Purchaser:
(a) A certificate representing the Purchased Securities of such Purchaser;
(b) A cross-receipt executed by the Company certifying that it has received a wire transfer as of the Closing Date in an amount equal to the Purchase Price of such Purchaser;
(c) An Opinion of Vxxxxx & Exxxxx L.L.P., as counsel to the Company, addressed to each of the Purchasers, substantially in the form attached hereto as Exhibit B;
(d) An opinion of Mxxxxxx XxXxxx, as in-house counsel for the Company, addressed to each of the Purchasers, substantially in the form attached hereto as Exhibit C;
(e) A copy of the Shareholders Agreement, in the form attached hereto as Exhibit D (the “Ares Shareholders Agreement”), dated as of the Closing Date and executed by the Company;
(f) A copy of the Registration Rights Agreement, in the form attached hereto as Exhibit A, dated as of the Closing Date and executed by the Company;
(g) An executed consent of Banc of America Securities LLC pursuant to the Purchase Agreement, dated December 15, 2005;
(h) A certificate of Secretary of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Purchasers, certifying as to (i) the certificate of incorporation of the Company; (ii) the by-laws of the Company; (iii) the resolutions of the board of directors of the Company authorizing the execution and performance of this Agreement and the Registration Rights Agreement; (iv) validly adopted and effective resolutions of the board of directors of the Company increasing the number of directors of the Company by one and appointing an individual designated in writing by Ares at least two days prior to the Closing Date to serve as a director of the Company for a term running at least until the annual meeting of stockholders to be held during 2008; and (v) incumbency and signatures of the officers of the Company executing this Agreement, the Registration Rights Agreement and any related certificates; and
(i) A certificate of the Chief Executive Officer and Chief Financial Officer, dated as of the Closing Date, in form and substance reasonably satisfactory to the Purchasers, certifying to such matters as reasonably requested by the Purchasers.
The Company’s Deliveries. Subject to fulfillment or waiver of the conditions set forth in Section 9, concurrently with the Merger Filing the Company shall deliver (or cause to be delivered), if and to the extent not previously delivered, all of the following to Parent:
4.6.1 a copy of the Articles of Incorporation of the Company, certified as of a recent date by the Secretary of State of the State of Minnesota;
4.6.2 a certificate of good standing of the Company issued as of a recent date by the Minnesota Secretary of State;
4.6.3 a certificate of the Secretary or an Assistant Secretary of the Company, dated the Closing Date, in form and substance reasonably satisfactory to Parent, to the effect that (i) the Articles of Incorporation of the Company have not been amended or modified since the date of certification of the Secretary of State of the State of Minnesota referred to in Section 4.6.1; (ii) the Bylaws, as attached thereto, have not been amended or modified as of the Closing Date; (iii) the resolutions of the Board of Directors of the Company authorizing the execution and performance of this Agreement and the transactions contemplated herein and the resolutions of the Company’s shareholders adopting this Agreement, as attached thereto, are in full force and *** Certain confidential information in this document has been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. effect and have not been superseded, amended or modified as of the Closing Date; and (iv) the incumbency and signatures of the officers of the Company executing this Agreement and any Company Ancillary Agreement are as set forth on the certificate;
4.6.4 an opinion of counsel to the Company, dated the Closing Date, in a form to be attached hereto as Exhibit I;
4.6.5 all consents, waivers or approvals, if any, obtained by the Company with respect to the consummation of the Contemplated Transactions (as defined in Section 5.4.2 below);
4.6.6 the certificate contemplated by Section 8.1, duly executed by the CEO or President of the Company;
4.6.7 the Employment Agreements, duly executed by ***;
4.6.8 the Non-Competition Agreements, duly executed by ***;
4.6.9 the Voting Agreements and Irrevocable Proxies executed by ***;
4.6.10 the Paying Agent Agreement duly executed by an executive officer of the Company;
4.6.11 the Escrow Agreement duly executed by an executive officer of the Company; and
4.6.12 such other documents as reasonably requested by the Parent.
The Company’s Deliveries. The Company shall deliver or cause to be delivered the following documents to Sub at the Closing:
(i) The original, signed Leases (or copies thereof certified by the Stockholder if originals are not available) as well as the Company's tenant lease files, and a rent roll and delinquency report for the current month ("Rent Roll") certified by the Stockholder as being true and complete in all material respects, to Stockholders knowledge.
(ii) A certification duly executed by the Stockholder in the form attached hereto as Exhibit R-D, stating that the Company is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended.
(iii) Originals (or certified copies thereof if originals are not available) of the Contracts.
(iv) Originals of all books and records in the Company's possession pertaining to the operation and management of the Property; provided, however, that the Stockholder may keep copies of all such books and records.
(v) Estoppel certificates from tenants of the Property occupying eighty percent (80%) of the rentable square footage of the Property, dated no earlier than twenty (20) days prior to the Closing Date ("Tenant Estoppels") in the form attached hereto as Exhibit R-E (provided that if any Lease specifies the form of estoppel certificate which the tenant thereunder is obligated to deliver, such form may be delivered in lieu of the form attached hereto as Exhibit R-E).
(vi) Evidence reasonably satisfactory to Sub and Title Company that all real estate taxes, sewer and water rates and charges, special assessments and betterments, and any utility charges the non-payment of which could result in a lien upon the Property, either have been paid or are included in the Closing Statement for purposes of apportionment.
(vii) Any and all keys, and lock and safe combinations respecting the Improvements.
(viii) If the Contracts listed in Exhibit R-C include any Contract for the construction of tenant improvements, evidence of payment by the Company of all amounts incurred thereunder through the Closing Date.
(ix) Such other instruments as the Parent or the Sub may reasonably request.
The Company’s Deliveries. Subject to fulfillment or waiver of the conditions set forth in Article X, at the Closing the Company shall deliver to Parent all of the following:
(a) a copy of the Restated Articles of Incorporation of the Company, as amended (the “Company Charter”), certified as of a recent date by the Secretary of State of the State of Indiana;
(b) a certificate of existence of the Company, issued as of a recent date by the Secretary of State of the State of Indiana;
(c) a certificate of the Secretary or Assistant Secretary of the Company, dated the Closing Date, in form and substance reasonably satisfactory to Parent, as to: (i) no amendments to the Company Charter since a specified date; (ii) the Company’s Bylaws; (iii) the resolutions of the Board of Directors of the Company authorizing the execution and performance of this Agreement and the transactions contemplated hereby; (iv) the resolutions of the Shareholders approving the Merger and this Agreement in accordance with Chapter 40 Section 3 of the IBCL; and (v) the incumbency and signatures of the officers of the Company executing this Agreement and any Company Ancillary Agreement;
(d) the certificates contemplated by Sections 9.1(a), 9.2, 9.6(a), 9.6(b) and 9.7, each duly executed by the Chief Executive Officer and Chief Financial Officer of the Company;
(e) the certificate contemplated by Section 9.1(a), duly executed by the Representative;
(f) the certificates contemplated by Section 9.1(b), duly executed by each Supporting Shareholder;
(g) evidence reasonably satisfactory to Parent regarding the termination of any and all notes issued by Fifth Third Bank, Kentucky, Inc. in favor of the Company and the release of any security interest in any assets or property of the Company held by Fifth Third Bank Kentucky, Inc. in connection therewith;
(h) all consents, waivers or approvals obtained by the Company with respect to the consummation of the transactions contemplated by this Agreement;
(i) duly executed resignations, effective as of the Effective Time, of each of the directors of the Company;
(j) evidence reasonably satisfactory to Parent regarding the termination of the agreements set forth on Schedule 4.5(j);
(k) evidence reasonably satisfactory to Parent regarding the termination or expiration of, and the waiver of and release of any and all claims to any and all severance rights under, the agreements set forth on Schedule 4.5(k);
(l) Stock Sale Forbearance Agreements, dated the Closing Date, substantially in...
The Company’s Deliveries. At or before the Effective Date, the Company shall deliver to each Withdrawing Member the following:
(i) the Withdrawal Amendment, duly executed by the Company and the Remaining Members; and
(ii) the CRA duly executed by the Remaining Members.
The Company’s Deliveries. At the Closing, and at the Company's sole cost and expense, the Company shall deliver the following to the Holder:
The Company’s Deliveries. Subject to the fulfillment or waiver of the conditions set forth in Section 4.1, the Company shall deliver to the Principal Stockholder the Xxxxxxx Redemption Amount by wire transfer of immediately available funds.
The Company’s Deliveries. At the Closing, the Company shall deliver, or shall cause to be delivered to Seller a copy of the resolutions of the Board of Directors of the Company (and each committee thereof, if any) authorizing the execution, delivery and performance by the Company of this Agreement and the other agreements and instruments referred to herein, certified as of the Closing by the Secretary or an Assistant Secretary of the Company.
The Company’s Deliveries. At the Closing, the Company shall deliver, or shall cause to be delivered to Seller the items described below: (a) the Closing Payment; (b) the Note; (c) the Letter of Credit; and (d) a copy of the resolutions of the Board of Directors of the Company and each committee thereof authorizing the execution, delivery and performance by the Company of this Agreement and the other agreements and instruments referred to herein, certified as of the Closing by the Secretary or an Assistant Secretary of the Company. 5. INDEMNIFICATION 5.1
The Company’s Deliveries. Subject to fulfillment or waiver of the conditions set forth in Section 9, concurrently with the Merger Filing the Company shall deliver (or cause to be delivered), if and to the extent not previously delivered, all of the following to Parent:
4.8.1 a copy of the Articles of Incorporation of the Company, certified as of a recent date by the Secretary of State of the State of California;
4.8.2 a certificate of good standing of the Company, issued as of a recent date by the Secretary of State of the State of California;
4.8.3 a certificate of the Secretary or an Assistant Secretary of the Company, dated the Closing Date, in form and substance reasonably satisfactory to Parent, to the effect that (i) the Articles of Incorporation of the Company has not been amended or modified since the date of certification of the California Secretary of State referred to in Section 4.8.1; (ii) the Bylaws, as attached thereto, have not been amended or modified as of the Closing Date; (iii) the resolutions of the Board of Directors of the Company authorizing the execution and performance of this Agreement and the transactions contemplated herein and the resolutions of the Stockholders adopting this Agreement, as attached thereto, are in full force and effect and have not been superseded, amended or modified as of the Closing Date; and (iv) the incumbency and signatures of the officers of the Company executing this Agreement and any Company Ancillary Agreement are as set forth on the certificate;
