EX-10.1CONTRIBUTION AND UNIT HOLDERS AGREEMENTContribution Agreement |
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EXHIBIT 10.1
CONTRIBUTION AND UNIT HOLDERS AGREEMENT
DATED AS OF MARCH 29, 2005
AMONG
NATIONAL CINEMA NETWORK, INC.,
REGAL CINEMEDIA CORPORATION
AND
NATIONAL CINEMEDIA, LLC
TABLE OF CONTENTS
i
SCHEDULES
EXHIBITS
ii
CONTRIBUTION AND
This Contribution and Unit Holders Agreement, dated as of March 29, 2005, is by and among National Cinema Network, Inc., a Delaware corporation (“ NCN ”), Regal CineMedia Corporation, a Virginia corporation (“ Regal ,” and with NCN, each a “ Party ” and collectively, the “ Parties ”), and National CineMedia, LLC, a Delaware limited liability company (the “ Company ”).
RECITALS
WHEREAS, the Parties desire to establish a joint venture in the form of the Company for the Joint Venture Purposes (as defined herein);
WHEREAS, the AMC Founding Member, and the Regal Founding Member will be the founding members of the Company (the “ Founding Members ,” which term, as used herein, shall include each of such member’s Permitted Transferees, if applicable);
WHEREAS, subject to the terms and conditions of this Agreement, NCN and Regal desire to contribute certain assets identified herein to the Company in consideration for the receipt of certain Units (as defined herein) by the Founding Members; and
WHEREAS, the Parties hereto desire to set forth certain agreements with respect to, among other things, the business, formation and operations of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
DEFINITIONS
For purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1:
1.1 Defined Terms . As used in this Agreement:
“ Action ” shall have the meaning set forth in Section 4.1(h) of this Agreement.
“ Affiliate ” shall mean with respect to any Person, any Person that directly or indirectly, through one or more intermediaries Controls, is Controlled by or is under common Control with such Person. Notwithstanding the foregoing, (i) no Member shall be deemed an Affiliate of the Company, (ii) the Company shall not be deemed an Affiliate of any Member, (iii) no stockholder of REG, or any of such stockholder’s Affiliates (other than REG and its Subsidiaries) shall be deemed an Affiliate of any Member or the Company, and (iv) no stockholder
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of Marquee Holdings, or any of such stockholder’s Affiliates (other than Marquee Holdings and its Subsidiaries) shall be deemed an Affiliate of any Member or the Company.
“ Aggregate Severance Amount ” shall have the meaning set forth in Section 5.1(e) of this Agreement.
“ Agreement ” shall mean this Contribution and Unit Holders Agreement, as the same may be amended, supplemented or otherwise modified from time to time.
“ AMC Founding Member ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ Assumed Liabilities ” shall have the meaning set forth in Section 2.7 of this Agreement.
“ Assumption Agreement ” shall have the meaning set forth in Section 2.7 of this Agreement and shall be entered into of even date herewith by and among the Parties.
“ Board ” shall mean the Board of Directors of the Company.
“ Budget ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ Business Day ” shall mean a day other than a Saturday, Sunday, federal or State of New York holiday or other day on which commercial banks in New York, New York are authorized or required by law to close.
“ Business Plan ” shall mean the detailed three year business plan for the Company, set forth in Exhibit B .
“ Certificate of Formation ” shall have the meaning set forth in Section 2.1 of this Agreement and shall be in substantially in the form of Exhibit A attached hereto.
“ Class A Units ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ Closing ” shall have the meaning set forth in Section 3.1 of this Agreement.
“ Closing Date ” shall have the meaning set forth in Section 3.1 of this Agreement.
“ Company ” shall have the meaning set forth in the Preamble of this Agreement.
“ Company Operating Agreement ” shall mean the Limited Liability Company Operating Agreement of the Company of even date herewith entered into by and between the Members of the Company.
“ Company Reimbursement Amount ” shall have the meaning set forth in Section 5.1(e) of this Agreement.
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“ Company Reimbursement Percentage ” shall have the meaning set forth in Section 5.1(e) of this Agreement.
“ Confidential Information ” shall have the meaning set forth in Section 9.11(a) of this Agreement.
“ Contributed Assets ” shall have the meaning set forth in Section 2.5(a) of this Agreement.
“ Contributed IP ” shall have the meaning set forth in Section 4.1(f) of this Agreement.
“ Control ” (including the terms “ Controlled by ” and “ under common Control with ”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise.
“ Equity Interests ” shall mean, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of capital stock, partnership interests (whether general or limited), limited liability company interests or equivalent ownership interests in or issued by, or interests, participations or other equivalents to share in the revenues or earnings of (except as provided in any service agreement that includes a revenue sharing component entered into in the ordinary course of business) such Person or securities convertible into, or exchangeable or exercisable for, such shares, interests, participations or other equivalents and options, warrants or other rights to acquire such shares, interests, participations or other equivalents; provided that discounts and rebates granted in the ordinary course of business shall not in any event constitute an Equity Interest.
“ Exchange Act ” shall mean the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.
“ Exhibitor Services Agreements ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ Founding Members ” shall have the meaning set forth in the Recitals to this Agreement.
“ Founding Member Representation Letter ” shall have the meaning set forth in Section 4.1(i) of this Agreement.
“ Governmental Approvals ” shall have the meaning set forth in Section 4.1(c) of this Agreement.
“ Governmental Authority ” shall mean any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
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“ Governmental Event ” shall have the meaning set forth in Section 8.1(a) of this Agreement.
“ Group ” shall have the meaning set forth in Section 13(d)(3) of the Exchange Act.
“ HSR Act ” shall have the meaning set forth in Section 4.1(c) of this Agreement.
“ Intellectual Property ” shall mean all U.S., state and foreign intellectual property rights, including but not limited to all (i) (a) patents, inventions, discoveries, processes and designs; (b) copyrights and works of authorship in any media; (c) trademarks, service marks, trade names, trade dress and other source indicators, and the goodwill of the business symbolized thereby; (d) software; and (e) trade secrets and other confidential or proprietary documents, ideas, plans and information; (ii) registrations, applications and recordings related thereto; (iii) rights to obtain renewals, extensions, continuations or similar legal protections related thereto; and (iv) rights to bring an action at law or in equity for the past, present or future infringement or other impairment thereof; provided , however , the foregoing shall not include Original Technology (as defined in the Software License Agreement).
“ Joint Venture Agreements ” shall mean, collectively, this Agreement, the Company Operating Agreement, the Exhibitor Services Agreements, the Founding Member Representation Letter, the Transition Services Agreement, and the Software License Agreement.
“ Joint Venture Purposes ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ Marquee Holdings ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ Material Adverse Effect ” shall have the meaning set forth in Section 4.1(a) of this Agreement.
“ Members ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ NASDAQ ” shall mean the Nasdaq Stock Market of the Nasdaq National Market.
“ NCN ” shall have the meaning set forth in the Preamble of this Agreement.
“ NCN Assumed Liabilities ” shall have the meaning set forth in Section 2.4(a) of this Agreement.
“ NCN Contributed Assets ” shall have the meaning set forth in Section 2.4(a) of this Agreement.
“ NCN Contribution ” shall have the meaning set forth in Section 2.4(b) of this Agreement.
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“ NCN Indemnitees ” shall have the meaning set forth in Section 9.13(a) of this Agreement.
“ NCN Liabilities ” shall have the meaning set forth in Section 9.13(a) of this Agreement.
“ NCN Transferred Employees ” shall have the meaning set forth in Section 5.1(a) of this Agreement.
“ NYSE ” shall mean the New York Stock Exchange.
“ Party ” or “ Parties ” shall have the meaning set forth in the Preamble to this Agreement.
“ Party Information ” shall have the meaning set forth in Section 9.11(b) of this Agreement.
“ Permitted Transferee ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ Person ” shall mean any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture, Governmental Authority or other entity or organization of any nature whatsoever or any Group of two or more of the foregoing.
“ Post-Closing Settlement Statement ” shall have the meaning set forth in Section 2.8(d) of this Agreement.
“ Preliminary Settlement Statement ” shall have the meaning set forth in Section 2.8(a) of this Agreement.
“ Proprietary Information ” shall mean all Intellectual Property, including but not limited to information of a technological or business nature, whether written or oral and if written, however produced or reproduced, received by or otherwise disclosed to the receiving Party from or by the disclosing Party that is marked proprietary or confidential or bears a marking of like import, or that the disclosing Party states is to be considered proprietary or confidential, or that a reasonable person would consider proprietary or confidential under the circumstances of its disclosure.
“ RCM Transferred Employees ” shall have the meaning set forth in Section 5.1(b) of this Agreement.
“ REG ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ Regal ” shall have the meaning set forth in the Preamble of this Agreement.
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“ Regal Assumed Liabilities ” shall have the meaning set forth in Section 2.5(a) of this Agreement.
“ Regal Contributed Assets ” shall have the meaning set forth in Section 2.5(a) of this Agreement.
“ Regal Contribution ” shall have the meaning set forth in Section 2.5(b) of this Agreement.
“ Regal Founding Member ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ Regal Indemnitees ” shall have the meaning set forth in Section 9.13(c) of this Agreement.
“ Regal Liabilities ” shall have the meaning set forth in Section 9.13(c) of this Agreement.
“ SEC ” shall mean the U.S. Securities and Exchange Commission or any other federal agency then administering the Securities Act or the Exchange Act and other federal securities law.
“ Securities Act ” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.
“ Software License Agreement ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ Subsidiary ” shall mean, with respect to any Person, (i) a corporation a majority of whose capital stock with the general voting power under ordinary circumstances to vote in the election of directors of such corporation (irrespective of whether or not, at the time, any other class or classes of securities shall have, or might have, voting power by reason of the happening of any contingency) is at the time beneficially owned by such Person, by one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof or (ii) any other Person (other than a corporation), including a joint venture, a general or limited partnership or a limited liability company, in which such Person, one or more Subsidiaries thereof or such Person and one or more Subsidiaries thereof, directly or indirectly, at the date of determination thereof, beneficially own at least a majority ownership interest entitled to vote in the election of directors, managers or trustees thereof (or other Persons performing such functions) or act as the general partner or managing member of such other Person.
“ Terminated Employees ” shall have the meaning set forth in Section 5.1(c) of this Agreement.
“ Termination Expenses ” shall have the meaning set forth in Section 5.1(c) of this Agreement.
“ Territory ” shall mean the United States of America and Canada.
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“ Third-Party Software ” shall have the meaning set forth in Section 4.1(f) of this Agreement.
“ Transfer ” (including the terms “ Transferred ” and “ Transferring ”) shall mean, directly or indirectly, to sell, transfer, give, exchange, bequest, assign, pledge, encumber, hypothecate or otherwise dispose of, either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, gift, exchange, merger, combination, bequest, assignment, pledge, encumbrance, hypothecation or other disposition of, any Equity Interests or other assets beneficially owned by a Person or any interest in any Equity Interests or other assets beneficially owned by a Person.
“ Transition Period ” shall have the meaning set forth in Section 2(a) of the Transition Services Agreement.
“ Transition Services Agreement ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ Unexercised Option ” shall have the meaning set forth in Section 5.1(e) of this Agreement.
“ Units ” shall have the meaning set forth in Section 1.1 of the Company Operating Agreement.
“ WARN Act ” shall mean the Worker Adjustment Retraining and Notification Act of 1988, as amended,
1.2 Other Definitional Provisions; Interpretation .
(a) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole, including the Exhibits and Schedules attached hereto, and not to any particular provision of this Agreement, and section and subsection references are to this Agreement unless otherwise specified.(b) The words “include” and “including” and words of similar import when used in this Agreement shall be deemed to be followed by the words “without limitation.”(c) The headings in this Agreement are included for convenience of reference only and will not limit or otherwise affect the meaning or interpretation of this Agreement.(d) The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.(e) All matters to be agreed to by any Party must be agreed to in writing by such Party unless otherwise indicated herein.
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FORMATION OF THE COMPANY; CONTRIBUTION AND UNIT ISSUANCES
2.1 Organization of the Company . On or before the Closing Date, the Parties shall cause the Company to be formed as a limited liability company having the name “National CineMedia, LLC” to be organized under the laws of the State of Delaware. The Parties shall take, and shall cause the Company to take, all requisite action to cause the Certificate of Formation (the “ Certificate of Formation ”) of the Company to be filed with the Secretary of State of the State of Delaware and become effective on or before the Closing Date. Upon the Closing, the Parties shall cause the Founding Members to execute and deliver the Company Operating Agreement.
2.2 Directors and Officers of the Company . The Parties shall take all requisite action to cause the directors and officers of the Company to be as provided in Article 4 of the Company Operating Agreement upon or after the Closing.
2.3 INTENTIONALLY DELETED .
2.4 Contributions by NCN .
(a) As a contribution to the capital of the Company and in consideration of the issuance to the AMC Founding Member of Class A Units in accordance with Section 2.6(a) and the assumption by the Company (x) at the Closing with respect to those liabilities listed on Part I of Schedule 2.4(a) or (y) post-Closing with respect to those liabilities listed on Part II of Schedule 2.4(a) as consents are obtained but in no event later than the expiration of the Transition Services Agreement (the “ NCN Assumed Liabilities ”), NCN shall contribute to the Company or cause one or more of its Subsidiaries to contribute:(i) at the Closing, $0.00 (subject to adjustment pursuant to Section 2.8(c)) in cash by wire transfer of immediately available funds;(ii) at the Closing with respect to those assets and other items listed on Part III of Schedule 2.4(a) or post-Closing with respect those assets or other items listed on Part IV of Schedule 2.4(a) as consents are obtained but in no event later than the expiration of the Transition Services Agreement (the “ NCN Contributed Assets ”); and(iii) at the Closing, the estimated amount on an after tax-basis of Termination Expenses to be paid by NCN with respect to the NCN Terminated Employees.(b) The contributions set forth in the foregoing clause (a) are collectively referred to as the “ NCN Contribution .”2.5 Contributions by Regal .
(a) As a contribution to the capital of the Company and in consideration of the issuance to the Regal Founding Member of Class A Units in accordance with Section 2.6(b) and the assumption by the Company (x) at the Closing with respect to those liabilities listed on Part I of Schedule 2.5(a) or (y) post-Closing with respect to those liabilities listed on Part II of Schedule 2.5(a)
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as consents are obtained but in no event later than the expiration of the Transition Services Agreement (the “ Regal Assumed Liabilities ”), Regal shall contribute to the Company or cause one or more of its Subsidiaries to contribute:(i) at the Closing, $1,291,128 (subject to adjustment pursuant to Section 2.8(c)) in cash by wire transfer of immediately available funds;(ii) at the Closing with respect to those assets listed on Part III of Schedule 2.5(a) or post-Closing with respect those assets listed on Part IV of Schedule 2.5(a) as consents are obtained but in no event later than the expiration of the Transition Services Agreement (the “ Regal Contributed Assets ,” collectively with the NCN Contributed Assets, the “ Contributed Assets ”); and(iii) at the Closing, the estimated amount on an after tax-basis of Termination Expenses to be paid by Regal with respect to the Regal Terminated Employees.(b) The contributions set forth in the foregoing clause (a) are collectively referred to as the “ Regal Contribution .”2.6 Issuances of Equity Interests to Founding Members .
(a) In consideration for the NCN Contribution, at the Closing the Company shall issue to the AMC Founding Member 370 Class A Units, which issuances shall be duly authorized and which Class A Units shall be, on the Closing Date, validly issued and free and clear of all liens and encumbrances (other than those arising pursuant to this Agreement and the Company Operating Agreement).(b) In consideration for the Regal Contribution, at the Closing the Company shall issue to the Regal Founding Member 630 Class A Units, which issuances shall be duly authorized and which Class A Units shall be, on the Closing Date, validly issued and free and clear of all liens and encumbrances (other than those arising pursuant to this Agreement and the Company Operating Agreement).(c) At the Closing, the Company shall deliver (i) to NCN evidence of the issuance of the Class A Units issued pursuant to Section 2.6(a) and (ii) to the Regal Founding Member evidence of the issuance of the Class A Units issued pursuant to Section 2.6(b).2.7 Assumption of Liabilities by the Company . On the Closing Date, the Parties shall cause the Company to deliver to each of the Parties an undertaking (the “ Assumption Agreement ”), pursuant to which the Company shall, on and as of the Closing Date, assume and agree to perform, pay and discharge when due and after obtaining consents as required for such assignment, all the NCN Assumed Liabilities and Regal Assumed Liabilities (collectively, the “ Assumed Liabilities ”). The Company will not assume, and shall not be deemed to have assumed, any liability or obligation of any Party or any of its Affiliates, or any current or former employee of any Party or any of its Affiliates, of any kind or nature whatsoever, except as expressly provided in the Assumption Agreement and this Agreement.
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2.8 Proration Adjustments .
(a) Items of income and expense or asset or liability, as the case may be, shall be prorated as of the Closing Date, so that each Party shall bear all such income and expense with respect to its respective Contributed Assets and Assumed Liabilities that it accrues or incurs through and including the period preceding the Closing Date, and the Company shall bear all such income and expense with respect to the Contributed Assets and Assumed Liabilities that it accrues or incurs on and after the Closing Date. Prorations and the estimated amount of each Parties’ respective Termination Expenses shall be made pursuant to a preliminary settlement statement (the “ Preliminary Settlement Statement ”) prepared in good faith and delivered by each of NCN and Regal to each other prior to Closing, together with such supplemental calculations and information as shall be reasonably necessary or appropriate to enable the other Party to determine the accuracy thereof. The Preliminary Settlement Statement shall be based upon the most current and reliable information reasonably available to such Party at the time of its delivery, and may be based upon estimates where actual amounts are impractical to obtain or verify. The amounts set forth on the Preliminary Settlement Statements shall be subject to adjustment or correction on the Post-Closing Settlement Statement.(b) Each Preliminary Settlement Statement shall include an estimate of the Termination Expenses attributable to each respective Terminated Employee as well as the following information as a credit or debit to such Party or the Company as applicable:(i) payments and charges under contracts (to the extent such payments and charges are included in the Contributed Assets or Assumed Liabilities);(ii) credits or debits for prepaid amounts and payments made in arrears under theatre advertising arrangements; and(iii) credits or debits resulting from any increase or decrease in the value of the Contributed Assets (which, in the event of a decrease in value of any Contributed Asset resulting from a breach by a Party of any covenant or agreement set forth in this Agreement, any debit may be in addition to and not in lieu of any additional rights or remedies of the non-breaching Party set forth in this Agreement).(c) To the extent the aggregate of the applicable Party’s credits and the Company’s obligations with respect to such Party exceeds the aggregate of the Company’s credits and the Party’s obligations set forth in accordance with Section 2.8(b), such Party shall receive a credit to the cash required to be contributed pursuant to Section 2.4(a)(i) or 2.5(a)(i), as the case may be, in the amount of such excess. To the extent the aggregate of the Company’s credits and a Party’s obligations exceeds the aggregate of a Party’s credits and the Company’s obligations with respect to such Party set forth in accordance with Section 2.8(b), the amount of cash required to be contributed pursuant to Section 2.4(a)(i) or 2.5(a)(i), as the case may be, shall be increased by the amount of such excess.(d) The Parties shall cause the Company to deliver a post-closing settlement statement (the “ Post-Closing Settlement Statement ”) to each Party not later than 60 days after Closing, together with such supplemental calculations and information as shall be reasonably
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necessary or appropriate to enable each such Party to determine the accuracy thereof. The Post-Closing Settlement Statement shall be based upon the most current and reliable information reasonably available to the Company at the time of its delivery. Within 30 calendar days of the applicable Party’s receipt of the Post-Closing Settlement Statement, such Party shall notify the Company in writing whether such Party approves the applicable Post-Closing Settlement Statement. If a Party approves the applicable Post-Closing Settlement Statement, or fails to notify the Company of its disapproval in the manner and within the time specified above, then the Post-Closing Settlement Statement, with respect to such Party, shall be as delivered to such Party. If a Party disapproves the Post-Closing Settlement Statement, then such Party and the Company shall use their reasonable efforts to agree upon the amounts to be set forth in the Post-Closing Settlement Statement, and the Post-Closing Settlement Statement shall be amended accordingly with respect to such Party. If the Company and such Party cannot agree upon the amounts to be set forth in the Post-Closing Settlement Statement, then the accounting firm of Deloitte & Touche LLP, or its successor, is designated to act as sole arbitrator and to decide all points of disagreement with respect to the Post-Closing Settlement Statement, such decision to be binding on the Parties. If such firm is unwilling or unable to serve in such capacity, then such Party and the Company shall use their reasonable efforts to designate and retain another mutually acceptable nationally recognized accounting firm not retained for general audit purposes by either of them as the sole arbitrator under this Section 2.8(d). The costs and expenses of the arbitrator, whether the firm designated above, or otherwise designated, shall be shared equally by the applicable Party and the Company and in the event that two or more Parties object, then such Parties’ aggregate share of the costs and expenses of the arbitrator shall be fifty percent. Within five Business Days after the Post-Closing Settlement Statement has been agreed upon or disagreements resolved, the Company or the applicable Party, as the case may be, shall make a payment by wire transfer of immediately available funds to the other Party in an amount equal to the difference between the amount paid pursuant to Section 2.4(a)(i) or 2.5(a)(i), as applicable, and the proration amount set forth on the Post-Closing Settlement Statement, together with an interest rate per annum for the period from and including the Closing Date through and including the date of payment at the “prime” rate of interest as published from time to time by The Wall Street Journal in its “Money Rates” section of its Western Edition newspaper in effect from time to time during such period.2.9 Working Capital Loan . Within fifteen (15) days after the Closing Date, the Founding Members will make available to the Company for working capital a revolving loan in an aggregate amount up to $11,000,000. The Founding Members will be obligated to fund their ratable share, in the same proportion as their percentage of Units, of the principal amount of such revolving loan. Such revolving loan will have a maturity date of March 31, 2007, accrue interest at a minimum of the short-term Applicable Federal Rate (AFR) per annum, and include such other terms and conditions as the Founding Members and the Company may agree.
CLOSING
3.1 Time and Place of Closing . The closing of the transactions contemplated herein (the “ Closing ”) shall take place at 2:00 p.m. at the offices of Hogan & Hartson LLP at One Tabor
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Center, Suite 1500, 1200 Seventeenth Street, Denver, Colorado, 80202 on March 29, 2005 (the “ Closing Date ”).
3.2 Closing Deliveries by the Company . At the Closing, the Company shall deliver or cause to be delivered:
(a) evidence of the issuance of Class A Units pursuant to Section 2.6;(b) certified copies of the Certificate of Formation;(c) the Company Operating Agreement, duly executed and delivered;(d) the Assumption Agreements, duly executed and delivered; and(e) any other Joint Venture Agreements to which the Company is to be a party, duly executed and delivered.
3.3 Closing Deliveries by NCN . At the Closing, NCN shall deliver or cause to be delivered:
(a) the amount set forth in Section 2.4(a)(i), if any, by wire transfer in cash to a bank account of the Company identified by the Company prior to Closing;(b) appropriate instruments of transfer of the NCN Contributed Assets listed on Schedule 2.4(a);(c) the Company Operating Agreement, duly executed and delivered; and(d) any other Joint Venture Agreements to which NCN or any of its Affiliates is a party, duly executed and delivered.
3.4 Closing Deliveries by Regal . At the Closing, Regal shall deliver or cause to be delivered:
(a) the amount set forth in Section 2.5(a)(i), if any, by wire transfer in cash to a bank account of the Company identified by the Company prior to Closing;(b) appropriate instruments of transfer of the Regal Contributed Assets listed on Schedule 2.5(a);(c) the Company Operating Agreement, duly executed and delivered;(d) the Founding Member Representation Letter, duly executed and delivered; and
(e) any other Joint Venture Agreements to which Regal or any of its Affiliates is a party, duly executed and delivered.
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3.5 Additional Closing Deliveries . From time to time on and after Closing, the Parties and the Company agree to execute and deliver such other instruments of conveyance, assignment, assumption, transfer and delivery and cause their Affiliates and Subsidiaries to take such other actions as may be required to more effectively transfer to the Company the Contributed Assets, and/or enable the Company to exercise and enjoy all rights and benefits with respect thereto, and to perfect the assumption by the Company of all the Assumed Liabilities.
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Parties . Each of the Parties, severally and not jointly, represents and warrants to each of the other Parties hereto as follows:
(a) Due Organization . Such Party is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and has the full power and authority to conduct its business as now conducted by it except where failure would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on either (x) the applicable Contributed Assets to be | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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