Agreement to Subscribe Purchase Price (i) Seller and Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(2) of the Act and/or Rule 506 under Regulation D ("Regulation D") as promulgated by the United States Securities and Exchange Commission (the "Commission") under the Act; and (ii) Buyer hereby subscribes for up to 3,000 shares of Preferred at a value of $1,000.00 per each share of Preferred for an aggregate amount of $3,000,000.00USD which Preferred shall contain such terms, provisions, and conditions pursuant to the Certificate of Designation attached as Exhibit A to and forming an integral part of this Agreement. The Buyer shall pay to the Company $3,000,000.00 for 3,000 shares of Preferred on the date the Preferred is duly executed by the Company and received in escrow by the Buyer's counsel (the "Closing Date"). (iii) The Company shall grant to the Buyer the following Warrants ("Warrants") to purchase up to an aggregate of 150,000 Shares of the Company, with each Warrant entitling the Buyer to purchase one Share at a warrant exercise price of Two Dollars and 50/100 ($2.50) per Share expiring three (3) years after the Closing Date and Warrants to purchase up to an aggregate of 200,000 shares of the Company with each Warrant entitling the Buyer to purchase one Share at a warrant exercise price of One Dollar and 875/1000 ($1.875) per Share expiring three (3) years after the Closing Date; (a) On the Closing Date and upon receipt by the Company of the Three Million and No/100 Dollars ($3,000,000) for the 3,000 Shares of Preferred, the Company shall issue to the Buyer a Warrant to purchase up to One Hundred and Fifty Thousand (150,000) Shares at an exercise price of Two Dollars and 50/100 ($2.50) per Share, and, the Company shall issue to the Buyer a Warrant to purchase up to Two Hundred Thousand (200,000) Shares at an exercise price of One Dollar and 875/1000 ($1.875) per Share with the term of each Warrant being for a period of three (3) years from the Closing date; and Each Warrant shall be substantially in the form attached hereto as Exhibit B.
Purchase by Assignee The Assignee reserves the right to bid for the property whether by itself or its agent or the Auctioneer (without payment of any deposit whatsoever). In the event the Assignee is declared the Purchaser, then the purchase price or so much as is applicable shall be set off against the indebtedness owing to the Assignee under the loan and security documentation on the date of sale, plus costs and expenses for the sale or incidental thereto.
Representations by Purchasers; Resale by Purchasers (a) Each Purchaser severally represents and warrants to the Company and the Guarantors that it is an institutional “accredited investor” within the meaning of Rule 501(a)(1),(2),(3) or (7) under the Securities Act. (b) Each Purchaser severally acknowledges that the Notes have not been registered under the Securities Act and represents and warrants to, and agrees with, the Company and the Guarantors that it will not offer or sell the Offered Securities within the United States or to, or for the account or benefit of, U.S. persons, except (i) pursuant to Rule 144A or any other exemption from the registration requirements of the Securities Act, if available, or (ii) to non-U.S. persons outside the United States, in accordance with Regulation S. Each Purchaser severally represents and agrees that it has offered and sold the Notes, and will offer and sell the Notes (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly, neither such Purchaser nor its affiliates, nor any persons acting on its or their behalf, have engaged or will engage in any directed selling efforts with respect to the Notes, and such Purchaser, its affiliates and all persons acting on its or their behalf have complied and will comply with the offering restrictions requirement of Rule 144A and Regulation S. Each Purchaser severally agrees that, at or prior to confirmation of sale of the Notes, other than a sale pursuant to Rule 144A, such Purchaser will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases the Notes from it during the restricted period a confirmation or notice to substantially the following effect: “The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the date of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meanings given to them by Regulation S.” Terms used in this subsection (b) have the meanings given to them by Regulation S. (c) Each Purchaser severally agrees that it and each of its affiliates has not entered and will not enter into any contractual arrangement with respect to the distribution of the Notes except for any such arrangements with the other Purchasers or affiliates of the other Purchasers or with the prior written consent of the Company. (d) Each Purchaser severally agrees that it and each of its affiliates will not offer or sell the Notes in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c), including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser severally agrees, with respect to resales made in reliance on Rule 144A of any of the Notes, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Notes has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.
Closing Deliveries of Purchaser At the Closing, Purchaser shall deliver to Seller:
Status of Purchaser The Purchaser is a corporation duly incorporated, validly existing and in good standing and has the power and capacity to enter into this Agreement and carry out its terms; and
Deliveries by Purchaser At each Closing, Purchaser shall deliver to Stayton with respect to the Initial Closing Properties, or each Deferred Property being conveyed, as applicable, the following: (a) the Cash Consideration Amount payable to Stayton at the applicable Closing in accordance with Section 2.5(c), and, if applicable in connection with the Initial Closing, the instruments contemplated by Section 2.6(b) evidencing the Rollover Equity; (b) a fully executed assignment and assumption agreement described in Section 8.3(c) above; (c) in connection with the Closing of the Initial Closing Properties only, with respect to Properties in which Purchaser has NOT received all Licensing Approvals on or prior to the Initial Closing Date, a signed Interim Operating Agreement, with all exhibits and schedules attached thereto; (d) a fully executed assignment and assumption agreement described in Section 8.3(f) above; (e) if applicable, duly completed and executed real estate transfer tax filings for the applicable Properties consistent with Section 14.13(c); (f) a closing statement, prepared and approved by Stayton and Purchaser, consistent with the terms of this Agreement and duly executed by Purchaser; (g) such other assignments, instruments of transfer, and other documents as Stayton may reasonably require in order to complete the transactions contemplated hereunder or to evidence compliance by Purchaser with the covenants, agreements, representations and warranties made by it hereunder, in each case, duly executed by Purchaser; (h) a duly executed and sworn Secretary's Certificate from Purchaser certifying that Purchaser has taken all necessary action to authorize the execution of all documents being delivered hereunder and the consummation of all of the transactions contemplated hereby and that such authorization has not been revoked, modified or amended; and (i) an executed and acknowledged incumbency certificate from Purchaser certifying the authority of the officers of Purchaser to execute this Agreement and the other documents delivered by Purchaser to Stayton at the Closing.
SUBSTITUTION OF PURCHASER Each Purchaser shall have the right to substitute any one of its Affiliates or another Purchaser or any one of such other Purchaser’s Affiliates (a “Substitute Purchaser”) as the purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Company, which notice shall be signed by both such Purchaser and such Substitute Purchaser, shall contain such Substitute Purchaser’s agreement to be bound by this Agreement and shall contain a confirmation by such Substitute Purchaser of the accuracy with respect to it of the representations set forth in Section 6. Upon receipt of such notice, any reference to such Purchaser in this Agreement (other than in this Section 21), shall be deemed to refer to such Substitute Purchaser in lieu of such original Purchaser. In the event that such Substitute Purchaser is so substituted as a Purchaser hereunder and such Substitute Purchaser thereafter transfers to such original Purchaser all of the Notes then held by such Substitute Purchaser, upon receipt by the Company of notice of such transfer, any reference to such Substitute Purchaser as a “Purchaser” in this Agreement (other than in this Section 21), shall no longer be deemed to refer to such Substitute Purchaser, but shall refer to such original Purchaser, and such original Purchaser shall again have all the rights of an original holder of the Notes under this Agreement.
Assignment by Purchaser The Purchaser shall have the right, without the consent of the Company but subject to the limit set forth in Section 2.02 hereof, to assign, in whole or in part, its interest under this Agreement with respect to some or all of the Mortgage Loans, and designate any person to exercise any rights of the Purchaser hereunder, by executing an Assignment and Assumption Agreement and the assignee or designee shall accede to the rights and obligations hereunder of the Purchaser with respect to such Mortgage Loans. All references to the Purchaser in this Agreement shall be deemed to include its assignee or designee.
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.
Closing Deliveries by Purchaser At the Closing on the Closing Date the Purchaser shall deliver to the Seller. (a) The Closing Payment to be delivered by the Purchaser pursuant to Section 3.03(a) of this Agreement; (b) The Supply Agreements duly executed by Purchaser (or its appropriate Affiliates as set forth on Exhibits D-1, D-2, D-3 and D-4); (x) The Transition Services Agreement duly executed by Purchaser (or its appropriate Affiliate as set forth on Exhibit E); (d) Certified copies of the Purchaser's articles of incorporation and all amendments thereto, certified by the Secretary of State of the State of North Carolina as of date not more than ten Business Day prior to the Closing Date; (e) Certified copies of minutes or unanimous written consents of the Board of Directors of the Purchaser approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated under this Agreement; (f) A Certificate, dated the Closing Date, executed by the appropriate officer of the Purchaser, required by Section 11.02 of this Agreement; (g) An agreement executed by the Purchaser reflecting the assumption of the liabilities set forth in Section 3.06(a) of this Agreement, in the form attached hereto as Exhibit G; and (h) Such other documents as the Seller or its counsel may reasonably request to carry out the purposes of this Agreement, including, but not limited to, the documents to be delivered pursuant to Article XI of this Agreement.
