Deliveries at the Closing At the Closing, (i) Seller will deliver to Purchaser the various agreements, certificates, instruments, and documents referred to in Section 8.1 below; (ii) Purchaser will deliver to Seller the various certificates, instruments, and documents referred to in Section 8.2 below; (iii) Seller, and Intervener, where applicable, will execute, acknowledge (if appropriate), and/or deliver to Purchaser (A) a xxxx of sale substantially in the form attached hereto as Exhibit “A”, (B) a real estate limited warranty deed executed by 1245 Properties in substantially the form attached hereto as Exhibit “F” (C) an assignment of Intellectual Property rights in substantially the forms attached hereto as Exhibit “B”, (D) a counterpart of the shared services agreement in substantially the form attached hereto as Exhibit “C” (the “Shared Services Agreement”), (E) a Seller non-compete and non-solicitation agreement in substantially the form attached hereto as Exhibit “D”, (F) a counterpart to an assignment and assumption agreement in substantially the form attached hereto as Exhibit “E” (the “Assignment and Assumption”), (G) an assignment of each Real Property Lease in substantially the form of Exhibit “O” attached hereto, (H) to the extent required under Section 6.2(b), a counterpart to the management agreement in substantially the form attached hereto as Exhibit “R” and (I) such other instruments of sale, transfer, conveyance, and assignment as Purchaser and its counsel reasonably may request, including assignments of all domain names involved; (iv) Purchaser will execute, acknowledge (if appropriate), and deliver to Seller (A) a counterpart of the Assignment and Assumption, (B) a counterpart of the Shared Services Agreement, (C) to the extent required under Section 6.2(b), a counterpart to the management agreement in substantially the form attached hereto as Exhibit “R” and (D) such other instruments of assumption as Seller and its counsel reasonably may request; and (v) Purchaser will deliver to Seller the Purchase Price,
Effective Date Deliveries On the Effective Date, the Company shall have delivered to the Representative executed copies of the Escrow Agreement, the Trust Agreement, the Warrant Agreement, the Services Agreement and all of the Insider Letters.
Share Deliveries Notwithstanding anything to the contrary herein, Company agrees that any delivery of Shares or Share Termination Delivery Property shall be effected by book-entry transfer through the facilities of DTC, or any successor depositary, if at the time of delivery, such class of Shares or class of Share Termination Delivery Property is in book-entry form at DTC or such successor depositary.
Closing Date Deliveries On the Closing Date, the Company shall have delivered to the Representative executed copies of the Representative’s Purchase Option.
Deliveries at Closing (a) At or prior to the Closing, the Company, TopCo, or the Members’ Representative shall deliver, or cause to be delivered, to Buyer:
(i) evidence of the issuance of the Purchased Units in a form reasonably acceptable to Buyer, vesting all right, title and interest in such Purchased Units in Buyer;
(ii) the Transaction Documents executed by the Company, TopCo, and the Members, as applicable, and all other agreements, documents, instruments or certificates required to be delivered by the Company, TopCo, and the Members at or prior to the Closing pursuant to Article VII;
(iii) the Escrow Agreement, duly executed by the Members’ Representative and TopCo;
(iv) the Payment Agent Agreement, duly executed by the Members’ Representative, TopCo, and the Payment Agent;
(v) the Company Closing Certificate;
(vi) written certification by the Chief Executive Officer of each of the Company and Pearl of the closing of the acquisition of the assets of Pearl in accordance with the Pearl Acquisition Agreement on the Closing Date (such acquisition, the “Pearl Acquisition”), including, without limitation, the execution and delivery of all documents required for closing and the satisfaction of all other conditions to closing subject only to funding of the Pearl Purchase Price on the Closing Date pursuant to this Agreement;
(vii) the Payoff Letters and evidence in form satisfactory to Buyer that all Liens relating to the Company and Company Assets shall have been released in full, other than Permitted Liens;
(viii) a written acknowledgement by TopCo in form satisfactory to Buyer that the Company Note is to be satisfied in full upon the payment of the Purchase Price;
(ix) an IRS Form W-9 (or other proof of exemption from withholding under Section 1445 and 1446(f) of the Code in connection with the Transactions reasonably satisfactory to Buyer) validly executed by each Member and TopCo;
(x) evidence reasonably satisfactory to Buyer that all security interests and other Liens, other than Permitted Liens, in any assets of the Company have been released prior to or shall be released simultaneously with the Closing;
(xi) evidence of termination of the agreements listed on Schedule 7.9;
(xii) the deliverables of the Company and Members set forth in Article VII;
(xiii) completion of the RSM Xxxxxxxx-Xxxxx audit and delivery of the RSM report;
(xiv) a finalized forgiveness application in the form prescribed by the PPP Lender (the “PPP Forgiveness Application”) with all supporting documentation including, but not limited to, evidence of each of the amounts used in the forgiveness amount calculation therein, together with a certificate executed by the Chief Executive Officer of the Company, in form and substance reasonably satisfactory to Purchaser, certifying that the PPP Loan Forgiveness Application was submitted to the PPP Lender and attaching a copy of each of the PPP Forgiveness Application and the resolutions of the Managers of the Company approving the PPP Forgiveness Application (such resolutions the “PPP Forgiveness Board Authorization”).
(b) At or prior to the Closing, Buyer shall deliver or cause to be delivered the following:
(i) by wire transfer of immediately available funds to the account of the Payment Agent on behalf of the Company for further payment to the Members on behalf of TopCo pursuant to the Redemption, cash in an amount equal to the Estimated Cash Consideration, less the sum of (y) the Escrow Funds, plus (z) the Representative Expense Fund (the “Closing Cash Consideration”), and less the Pearl Purchase Price;
(ii) to the Exchange Agent the Buyer Shares for the account of the Company for immediate distribution to TopCo in connection with the Company Note Repayment, and then to the Members pursuant to the Redemptions (the “Closing Buyer Shares Consideration” and, together with the Closing Cash Consideration, the “Closing Payment”), which Buyer Shares will be delivered in book entry (electronic form);
(iii) cash in an amount equal to the Pearl Purchase Price to Pearl on behalf of the Company, by wire transfer of immediately available funds as set forth in the Initial Consideration Spreadsheet;
(iv) cash in an amount equal to the Representative Expense Fund to the Members’ Representative, by wire transfer of immediately available funds as set forth in the Initial Consideration Spreadsheet;
(v) cash in an amount equal to the Company Transaction Expenses set forth in the Initial Consideration Spreadsheet, by wire transfer of immediately available funds, to each of the payees set forth in such Initial Consideration Spreadsheet;
(vi) cash in an amount equal to the Closing Indebtedness Amount set forth in the Initial Consideration Spreadsheet each of the payees set forth in such Initial Consideration Spreadsheet, to the extent applicable;
(vii) cash in an amount equal to the PPP Loan Escrow Amount, by wire transfer of immediately available funds, to the PPP Lender as set forth in the Initial Consideration Spreadsheet;
(viii) the Buyer Closing Certificate to the Members’ Representative;
(ix) the Escrow Agreement, duly executed by Buyer and the Escrow Agent, to the Members’ Representative and TopCo;
(x) the Payment Agent Agreement, duly executed by Buyer, to the Members’ Representative; and
(xi) to the Members’ Representative and TopCo, the Transaction Documents executed by Buyer, as applicable, including all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Article VIII.
Additional Deliveries Mezzanine Lender shall have received such other deliveries reasonably requested by Mezzanine Lender, provided such requests are customary and are consistent with the deliveries required with respect to the Properties on the Closing Date.
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.
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
Deliveries (a) On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) a legal opinion of Company Counsel, in a form reasonably acceptable to each Purchaser and the Placement Agent;
(iii) subject to the last sentence of Section 2.1, the Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer;
(iv) subject to the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Prefunded Warrants, if applicable), registered in the name of such Purchaser;
(v) if applicable, for each Purchaser of Prefunded Warrants pursuant to Section 2.1, a Prefunded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Subscription Amount applicable to Prefunded Warrants divided by the Per Share Purchase Price minus $0.00001, with an exercise price equal to $0.00001, subject to adjustment therein;
(vi) a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 200% of such Purchaser’s Shares and Prefunded Warrant Shares, if applicable, with an exercise price equal to $1.00, subject to adjustment therein; and
(vii) an electronic copy of the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this Agreement duly executed by such Pxxxxxxxx; and
(ii) such Purchaser’s Subscription Amount (minus, if applicable, a Purchaser’s aggregate exercise price of the Prefunded Warrants, which amounts shall be paid as and when such Prefunded Warrants are exercised for cash) by wire transfer to the account specified in writing by the Company.
DELIVERY: FOB DESTINATION, INSIDE DELIVERY, FREIGHT PAID Whenever possible, contractors should give the ordering entities 3 working days prior notice of any deliveries and/or installations. Furniture contractors will not be responsible for the removal/moving of existing furnishings unless requested by the ordering entity. Contractors should verify site readiness prior to delivery. All deliveries will be made during normal working hours unless otherwise arranged with the ordering entity. Contractor will communicate any scheduling delays and/or changes immediately. Agencies will not be responsible for any freight damage, concealed or otherwise.
