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.
Buyer Closing Deliveries Buyer shall deliver the following documents to the Escrow Agent on or before the date which is (i) one (1) Business Day prior to the Closing Date if the Loan Assumption is to occur at the Closing with respect to all Assets, or (ii) two (2) Business Days prior to the Closing Date if the Loan Assumption is not to occur at the Closing with respect to any Asset (i.e., there will be no Loan Assumption at all):
(a) With respect to the Assets:
(i) an assignment and assumption of Crown Ridge Seller’s interest in the Crown Ridge Space Leases (the “Crown Ridge Assignment of Leases”) duly executed by Buyer in substantially the form of Exhibit A attached hereto;
(ii) an assignment and assumption of Canyon Springs Seller’s interest in the Canyon Springs Space Leases (the “Canyon Springs Assignment of Leases”) duly executed by Buyer in substantially the form of Exhibit A attached hereto;
(iii) an assignment and assumption of Cascades I Seller’s interest in the Cascades I Space Leases (the “Cascades I Assignment of Leases”) duly executed by Buyer in substantially the form of Exhibit A attached hereto;
(iv) an assignment and assumption of Cascades II Seller’s interest in the Cascades II Space Leases (the “Cascades II Assignment of Leases”) duly executed by Buyer in substantially the form of Exhibit A attached hereto;
(v) an assignment and assumption of Cibolo Canyon Seller’s interest in the Cibolo Canyon Space Leases (the “Cibolo Canyon Assignment of Leases”) duly executed by Buyer in substantially the form of Exhibit A attached hereto;
(vi) an assignment and assumption of the Crown Ridge Contracts (the “Crown Ridge Assignment of Contracts”) duly executed by Buyer in substantially the form of Exhibit B attached hereto;
(vii) an assignment and assumption of the Canyon Springs Contracts (the “Canyon Springs Assignment of Contracts”) duly executed by Buyer in substantially the form of Exhibit B attached hereto;
(viii) an assignment and assumption of the Cascades I Contracts (the “Cascades I Assignment of Contracts”) duly executed by Buyer in substantially the form of Exhibit B attached hereto;
(ix) an assignment and assumption of the Cascades II Contracts (the “Cascades II Assignment of Contracts”) duly executed by Buyer in substantially the form of Exhibit B attached hereto;
(x) an assignment and assumption of the Cibolo Canyon Contracts (the “Cibolo Canyon Assignment of Contracts”) duly executed by Buyer in substantially the form of Exhibit B attached hereto;
(xi) notice letters to the tenants at the Real Property (the “Tenant Notices”) duly executed by Buyer, in substantially the form of Exhibit C attached hereto. Buyer shall promptly deliver the same to all tenants following the Closing and shall provide Sellers with confirmation of such delivery upon Sellers’ request;
(xii) an assignment of all licenses, certificates of occupancy, permits, approvals, authorizations, guaranties, warranties and intangibles with respect to the Crown Ridge Real Property to the extent assignable (but excluding any Excluded Assets) (a “Crown Ridge Assignment of Licenses, Permits, Warranties and General Intangibles”) duly executed by Buyer in substantially the form of Exhibit D attached hereto;
(xiii) an assignment of all licenses, certificates of occupancy, permits, approvals, authorizations, guaranties, warranties and intangibles with respect to the Canyon Springs Real Property to the extent assignable (but excluding any Excluded Assets) (a “Canyon Springs Assignment of Licenses, Permits, Warranties and General Intangibles”) duly executed by Buyer in substantially the form of Exhibit D attached hereto;
(xiv) an assignment of all licenses, certificates of occupancy, permits, approvals, authorizations, guaranties, warranties and intangibles with respect to the Cascades I Real Property to the extent assignable (but excluding any Excluded Assets) (a “Cascades I Assignment of Licenses, Permits, Warranties and General Intangibles”) duly executed by Buyer in substantially the form of Exhibit D attached hereto;
(xv) an assignment of all licenses, certificates of occupancy, permits, approvals, authorizations, guaranties, warranties and intangibles with respect to the Cascades II Real Property to the extent assignable (but excluding any Excluded Assets) (a “Cascades II Assignment of Licenses, Permits, Warranties and General Intangibles”) duly executed by Buyer in substantially the form of Exhibit D attached hereto;
(xvi) an assignment of all licenses, certificates of occupancy, permits, approvals, authorizations, guaranties, warranties and intangibles with respect to the Cibolo Canyon Real Property to the extent assignable (but excluding any Excluded Assets) (a “Cibolo Canyon Assignment of Licenses, Permits, Warranties and General Intangibles”) duly executed by Buyer in substantially the form of Exhibit D attached hereto;
(xvii) all documents relating to each applicable Loan Assumption and required by Existing Lender to effectuate each applicable Loan Assumption (the “Loan Assumption Documents”), which are consistent with the provisions of this Agreement and do not impose any obligation or liability on Buyer that is not expressly contemplated by this Agreement or the applicable Existing Loan Documents, duly executed by Buyer, provided that the delivery in this subsection shall not apply to a particular Loan Assumption if the Lender Consent is not received on or prior to the Closing Date or in the event Buyer elects, in its sole discretion, to forgo the particular Loan Assumption by delivery of a Loan Assumption Rejection Notice in accordance with Section 2.3(d)(ii) or by the delivery of the New Financing Notice referenced in Section 2.3(f);
(xviii) a change in responsibility form for the Exxxxxx Aquifer Protection Plan duly executed by Buyer in substantially the form of Exhibit I attached hereto (a “Change in Responsibility Form”) with respect to the Canyon Springs Asset, which Change in Responsibility Form Buyer shall deliver to the following address promptly following the Closing: Exxxxxx Aquifer Protection Plan, Attn: Mx. Xxxx Xxxxxxxxxxx, 10000 Xxxxxx Xxxx, San Antonio TX 78223;
(xix) a Change in Responsibility Form with respect to the Cibolo Canyon Asset duly executed by Buyer, which Change in Responsibility Form Buyer shall deliver to the following address promptly following the Closing: Exxxxxx Aquifer Protection Plan, Attn: Mx. Xxxx Xxxxxxxxxxx, 10000 Xxxxxx Xxxx, San Antonio TX 78223;
(xx) an Assignment and Amendment Agreement in substantially the form of Exhibit K attached hereto (a “Cascades Assignment and Amendment Agreement”) for the Contract for Marketing of Services for Cascades I with respect to the Cascades I Asset duly executed by Buyer; provided, however, as between Seller and Buyer, Buyer is only assuming the obligations under such Contract for Marketing of Services that arise from and after the Closing;
(xxi) a Cascades Assignment and Amendment Agreement for the Contract for Marketing of Services for Cascades II Seniors with respect to the Cascades II Asset duly executed by Buyer; and
(xxii) a Cascades Assignment and Amendment Agreement for the Contract for Marketing of Services for Cascades II Duplexes with respect to the Cascades II Asset duly executed by Buyer.
(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 Sellers and Buyer and duly executed by Buyer; and
(ii) a separate buyer’s closing statement for each Asset, consistent with the terms of this Agreement (the “Buyer Closing Statement”).
Closing Deliveries of Purchaser At the Closing, Purchaser shall deliver to Seller:
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.
Buyer’s Deliveries at Closing At the Closing, Buyer shall deliver the following to the Seller:
Deliveries at Closing Buyers’ Parent shall have delivered or caused to be delivered to Sellers’ Representative the following documents, each properly executed and dated as of the Closing Date, and in form and substance reasonably acceptable to Sellers’ Representative:
(a) the Tredegar Brasil Deliverables set forth in Section 2 of Exhibit D;
(b) the Tredegar India Interests Purchase Agreement and the documents and instruments set forth in Section 2.4 thereunder that are required to be delivered at Closing in order to effect the purchase and sale of the Tredegar India Interests and the transfer of legal ownership of the Nominee Interest as contemplated thereby;
(c) a certificate of an authorized officer of Buyers’ Parent certifying as to the satisfaction of the closing conditions set forth in Sections 9.1 and 9.2;
(d) a certificate of the secretary or other authorized officer of Buyers’ Parent certifying as to: (i) the accuracy and completeness of attached copies of the Organizational Documents of each Buyer certified by the applicable Governmental Authority as of a recent date, and (ii) the resolutions of the equityholders of Buyers, if required, and the board of directors or the board of managers, as applicable, of Buyers authorizing and approving the execution and delivery of this Agreement by Buyer and all other agreements contemplated hereby, the performance of Buyers’ obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby;
(e) instruments necessary to effect the replacement, effective as of Closing, of the directors, managers and officers, as applicable, of the Target Companies and Target Subsidiaries set forth on Annex 8.5(h), including, as required by applicable Law, resolutions of the governing bodies of a Target Company or any Target Subsidiary and amendments to applicable Organizational Documents;
(f) the Escrow Agreement; and
(g) the Transition Services Agreement.
Post-Closing Deliverables (a) Within ten (10) days of the Closing Date, Seller and/or Seller’s Affiliates shall give any notices required to be given under the Material Contracts in connection with the consummation of the Transaction and shall further provide to Purchaser at Closing with true and complete copies of such notices. From and following the date of this Agreement, Seller and the Company shall use commercially reasonable efforts to (i) obtain any consents or authorizations required under the terms of the Material Contracts in connection with the consummation of the Transaction and (ii) prepare the documents to be executed pursuant to Section 2.2(e) as required under the terms of the Material Contracts in connection with the consummation of the Transaction. If, as of Closing (i) any notice has not been given or any authorization or consent has not been obtained under the terms of the Contracts included in the Assets (including as may be required under the terms of the Assumed Contracts in connection with the consummation of the Transaction) or (ii) any conveyance or assignment documents required to vest title to all Owned Real Property and easements in the Company have not been executed prior to Closing, in each case other quitclaim deeds with respect to Owned Office Properties as specifically required to be delivered at Closing in accordance with Section 2.2(e), notwithstanding anything in this Agreement to the contrary, such failure shall not give rise to any right to indemnification under Article IX.
(b) Seller shall (i) for twelve (12) months following the Closing Date, use commercially reasonable efforts to, as and when requested by Purchaser, give any notice that has not been given or obtain any authorization or consent that has not been obtained prior to the Closing that is required under the terms of the Contracts included in the Assets (including as may be required under the terms of the Assumed Contracts in connection with the consummation of the Transaction) and (ii) as soon as practicable following Closing (but no more than 90 days following Closing), deliver to Purchaser an accurate list and description of all Owned Real Property and execute and deliver to Purchaser all real estate conveyance documents required to vest title to all Owned Real Property and easements in the Company (to the extent not previously delivered at Closing). Following Closing, until such required notices are given or such required consents are obtained or such documents are executed, Seller agrees to enter into a commercially reasonable alternative arrangement to provide (and cause its Affiliates to provide, as applicable), the Company and Purchaser’s Affiliates with the benefits (e.g., in respect of any applicable Sign Location Lease, the right to operate the Structures on the property covered thereby) to which such notice or consent relates, including by enforcing at the written request of Purchaser (and at Purchaser’s sole cost and expense) any of the rights under such Contract (including the right of termination); and to the extent the Company (or Purchaser’s Affiliate) receives such benefits (or Seller enforces any rights under such Contract at Purchaser’s written request), Purchaser shall be responsible for the performance of the Seller’s obligations thereunder, at Purchaser’s sole cost and expense, acting in good faith and in the ordinary course of business. If within the twelve (12) month period following the Closing Date (aa) either Party (or their Affiliates) receives written notice from a landowner or counterparty (or counsel for the landowner or counterparty) purporting to terminate a particular Sign Location Lease which is a Material Contract or a Bus Transit Contract, as a result of the failure to obtain a consent required by the terms of such lease or Bus Transit Contract, or (bb) any such landlord or counterparty files suit (or initiates arbitration, if applicable) against either Party (or their respective Affiliates) seeking termination of the applicable Sign Location Lease or Bus Transit Contract, as a result of the failure to obtain a consent required by the terms of such lease or Bus Transit Contract, or (cc) any such landowner or counterparty requires payment of a material sum or some other material concession from the Company in exchange for any such required consent (and in the case of a demand for a material sum of money, where Seller elects to not pay such amount upon request of the Company), then in each such instance, the Company or Purchaser may within ten days following the expiration of such twelve month period (or such later period as provided below) by written notice to Seller either (i) elect to relinquish all of its right, title and interest in and to such Sign Location Lease or Bus Transit Contract, as applicable (and any Assets solely related thereto), to Seller, in which case the Purchaser shall be entitled to a payment from Seller in an amount equal to that portion of the Purchase Price allocable to such item or asset, which shall be based on a multiple equal to the product of 7.1 times net revenues less site lease expense for calendar year 2014; or (ii) elect to retain such rights over the item or asset, in which case there would be no such payment to the Company or Purchaser, as applicable; provided, however, that (x) Purchaser shall upon request by Seller, assist and cooperate with Seller in effecting the commercially reasonable alternative arrangement referred to above and in obtaining the applicable required consent, and (y) before Purchaser shall have the right to exercise its rights under subpart (i) above, Seller shall have the right (at Seller’s sole cost) to defend any such action by a landlord or counterparty and/or to negotiate a settlement and/or cure any alleged breach of the applicable lease or Bus Transit Contract and so long as Seller is diligently doing so, Seller shall have until the expiration of the following periods to cure or settle such matter (i) if Purchaser is still permitted to operate at such location during the pendency of such matter, until such matter is finally adjudicated or (ii) if Purchaser is not permitted to operate at such location during the pendency of such matter and Seller elects not to replace the lost net cash flow at such location during the pendency of such matter, a two (2) month period from the date Purchaser is first not able to operate at such location (provided, further, that, in the case of both (i) and (ii) above, if Purchaser in good faith determines that the Company or Purchaser’s applicable Affiliate could reasonably be expected to be subject to liability to such landlord or counterparty by continuing to operate such asset, Purchaser may require that Seller confirm in writing to Purchaser Seller’s duty to defend and indemnify Purchaser with respect thereto, including but not limited to damages for trespass, where applicable). Purchaser acknowledges that failure to timely notify Seller of such an election in accordance with the foregoing shall be deemed an acceptance by Purchaser of such Sign Location Lease or Bus Transit Contract, as applicable and related Assets and a relinquishment of any right to payment from Seller. For the avoidance of doubt, any amounts that may become due to Purchaser (or the Company) under this paragraph shall not be subject to the limitations set forth in Section 9.2(c).
(c) As soon as practicable following the Closing (but no later than 90 days following Closing), Seller shall deliver to Purchaser Outdoor Advertising Permit transfer documents as are required to validly and fully transfer and assign all such Permits to the Company (or Purchaser’s designated Affiliate).
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.
Deliveries at the Closing At the Closing: -------------------------
(a) Seller and/or Parent shall deliver or cause to be delivered to Buyer the following:
(i) a good and sufficient xxxx of sale for the Assets, selling, delivering, transferring and assigning to Buyer all of Seller's and Affiliate's right, title and interest in and to the Assets, free and clear of any and all Liens other than Permitted Liens, in substantially the form attached hereto as Exhibit A (the "Xxxx of Sale"), together with such assignments and --------- ------------ other documentation reasonably requested by, and in form and substance reasonably satisfactory to, Buyer to validly vest Buyer with all of Seller's and Affiliate's right, title and interest in or to the Assets, free and clear of all Liens other than Permitted Liens;
(ii) consents, in substantially the form attached hereto as Exhibit B-1, to the assignment of the contracts listed on Schedules 2.30 and ----------- -------------- 2.31 of the Seller Disclosure Schedule; ----
(iii) copies, certified by an authorized officer of Seller, of minutes or resolutions of the board of directors and Parent, as sole stockholder, which shall not have been rescinded or modified, unconditionally authorizing the execution of this Agreement and the performance of the transactions contemplated hereby;
(iv) copies, certified by an authorized officer of Parent, of minutes or resolutions of the board of directors, which shall not have been rescinded or modified, unconditionally authorizing the execution of this Agreement and the performance of the transactions contemplated hereby;
(v) the Escrow Agreement, in substantially the form attached hereto as Exhibit D (the "Escrow Agreement"), executed by each of --------- ---------------- Seller and Parent;
(vi) documents in form and substance reasonably satisfactory to Buyer and its counsel evidencing that the approvals and consents specified in Sections 6.1(c) and 6.3(c) hereof have been obtained and are in full force and effect; and
(vii) all other documents and instruments required hereunder to be delivered by Seller to Buyer at the Closing;
(b) Buyer shall deliver or cause to be delivered to Seller the following:
(i) an instrument of assumption of liabilities, in substantially the form attached hereto as Exhibit C, by which Buyer shall assume --------- the Assumed Liabilities as of the Closing, together with such other documentation reasonably requested by Seller to cause Buyer to assume the Assumed Liabilities;
(ii) the Escrow Agreement executed by Buyer; and
(iii) all other documents and instruments required hereunder to be delivered by Buyer to Seller at the Closing;
(c) Buyer shall deposit the Escrow Amount with the Escrow Agent in accordance with Article VIII and the Escrow Agreement. ------------
Payment at Closing The Borrower shall have paid (A) to the Administrative Agent, the Arranger and the Lenders the fees set forth or referenced in Section 5.3 and any other accrued and unpaid fees or commissions due hereunder, (B) all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent accrued and unpaid prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent) and (C) to any other Person such amount as may be due thereto in connection with the transactions contemplated hereby, including all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of any of the Loan Documents.
