Assets to be Sold On the Closing Date, subject to the terms and conditions set forth herein, Seller shall, provided that all of the conditions set forth in Section 7 hereto have been satisfied, sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase and take from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”), free and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Information to be Supplied (a) The information supplied or to be supplied by the Company for inclusion or incorporation by reference in (i) the Registration Statement will, at the time the Registration Statement is filed with the SEC and at the time it becomes effective under the Securities Act, not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading and (ii) the Schedule 13E-3 will, at the time it is first filed with the SEC and at any time it is amended or supplemented, not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(b) The Proxy Statement will, at the time of the mailing thereof and at the time of the Company Stockholder Meeting, not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholder Meeting which has become untrue or misleading.
(c) The Registration Statement and the Schedule 13E-3 (in each case with respect to information provided by or incorporated by reference from, the Company) and the Proxy Statement will comply as to form in all material respects with the provisions of the Securities Act and the Exchange Act.
(d) Notwithstanding the foregoing, the Company makes no representation or warranty with respect to any statements made or incorporated by reference in the Registration Statement, the Proxy Statement or the Schedule 13E-3 based on information supplied by Holding or Acquiror for inclusion or incorporation by reference therein.
Documents to be Furnished The following documents, including any amendments thereto, will be provided contemporaneously with the execution of the Agreement to the Custodian by the Trust:
(a) A copy of the Trust’s declaration of trust, certified by the Secretary;
(b) A copy of the Trust’s bylaws, certified by the Secretary;
(c) A copy of the resolution of the Board of Trustees of the Trust appointing the Custodian, certified by the Secretary;
(d) A copy of the current prospectus of the Fund (the “Prospectus”);
(e) A certification of the Chairman or the President and the Secretary of the Trust setting forth the names and signatures of the current Officers of the Trust and other Authorized Persons; and
(f) An executed authorization required by the Shareholder Communications Act of 1985, attached hereto as Exhibit E.
Assets to be Held The Custodian shall limit the securities and other assets maintained in the custody of the foreign sub-custodians to: (a) "foreign securities", as defined in paragraph (c)(1) of Rule 17f-5 under the Investment Company Act of 1940, and (b) cash and cash equivalents in such amounts as the Custodian or the Fund may determine to be reasonably necessary to effect the Fund's foreign securities transactions. The Custodian shall identify on its books as belonging to the Fund, the foreign securities of the Fund held by each foreign sub-custodian.
When Adjustments to Be Made The adjustments required by this Section 4 shall be made whenever and as often as any specified event requiring an adjustment shall occur, except that any adjustment of the number of shares of Common Stock for which this Warrant is exercisable that would otherwise be required may be postponed (except in the case of a subdivision or combination of shares of the Common Stock, as provided for in Section 4(b)) up to, but not beyond the date of exercise if such adjustment either by itself or with other adjustments not previously made adds or subtracts less than one percent (1%) of the shares of Common Stock for which this Warrant is exercisable immediately prior to the making of such adjustment. Any adjustment representing a change of less than such minimum amount (except as aforesaid) which is postponed shall be carried forward and made as soon as such adjustment, together with other adjustments required by this Section 4 and not previously made, would result in a minimum adjustment or on the date of exercise. For the purpose of any adjustment, any specified event shall be deemed to have occurred at the close of business on the date of its occurrence.
DOCUMENTS TO BE DELIVERED AT CLOSING At the Initial Closing, each Grantor which is a party hereto shall, directly or indirectly or through the attorney-in-fact appointed pursuant to Article 5 hereof, execute, acknowledge where deemed desirable or necessary by Optionee, and deliver to the Closing Agent, in addition to any other documents mentioned elsewhere herein, the following:
(a) An assignment and xxxx of sale (the “Assignment”), which shall be in a form satisfactory to Optionee, containing a warranty of title that such Grantor owns such Grantor’s Contributed Interest free and clear of all Encumbrances (as defined in Section 3.1) and reaffirming the accuracy of all representations and warranties and the satisfaction of all covenants made by such Grantor in Article 3 hereof.
(b) If requested by Optionee, a certified copy of all appropriate entity resolutions or actions and any other evidence requested by Optionee authorizing the execution, delivery and performance by Grantor of this Option Agreement, the Ancillary Agreements, if any, and the Closing Documents, and any other instrument evidencing that all of Grantor’s representations and warranties remain true and correct as of the date of the IPO Closing.
(c) If requested by Optionee in the case of any Grantor which is a corporation, limited liability company, partnership, trust or other entity, an opinion from counsel for such Grantor in form and content reasonably acceptable to Optionee substantially to the effect that:
(i) such Grantor is a limited partnership, corporation, limited liability company or trust duly organized, validly existing and in good standing under the laws of the state of its organization and had and has all applicable power and authority to enter into, delivery and perform this Option Agreement, the Ancillary Agreements, if any, and the Closing Documents;
(ii) the execution, delivery and performance of this Option Agreement, the Ancillary Agreements, if any, and the Closing Documents, and the transactions contemplated hereby and thereby, (x) do not and will not constitute a breach or a violation of Grantor’s partnership agreement, declaration of trust, operating agreement, charter or bylaws, as applicable (y) do not and will not violate any foreign, federal, state, local or other laws applicable to the Grantor or the Property or require the Grantor to obtain any approval, consent or waiver of, or make any filing with, any person or authority (governmental or otherwise) that has not been obtained or made or which does not remain in effect; and (z) do not and will not result in a breach of, constitute a default under, accelerate any obligation under or give rise to a right of termination of, any indenture or loan or credit agreement or any other agreement, contract, instrument, mortgage, lien, lease, permit, authorization, order, writ, judgment, injunction, decree, determination or arbitration award to which the Grantor is a party or by which the property of the Grantor is bound or affected, or result in the creation of any Encumbrance (as defined in Section 3.1) on any of the Contributed Interests; and
(iii) all applicable entity action necessary for such Grantor to execute and deliver this Option Agreement, the Ancillary Agreements, if any, and the Closing Documents has been taken and that the same have been validly executed and delivered and are the valid and binding obligations of such Grantor enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights and remedies generally.
(d) An affidavit establishing an exemption from the withholding requirements of the Foreign Investment in Real Property Tax (FIRPTA), as amended.
(e) Pledge Agreements, satisfactory to Optionee, by each Grantor for the Units conveyed to such Grantor to secure the indemnification obligations described in Article VII for the period commencing on the IPO Closing Date and ending on the first anniversary thereof.
(f) Evidence reasonably satisfactory to Optionee that the franchisor of the Property has consented to the change of control of the Contributed Entity as required by the currently effective franchise agreement relating to the Property or that a new franchise agreement between the Contributed Entity and the Property’s franchisor has been executed as of the date of the Initial Closing.
(g) Evidence reasonably satisfactory to Optionee that the lender of any borrowed money as set forth on Schedule 3.1 has consented to the transfer of the Property to the Optionee as required by any loan document, deed of trust, mortgage or other evidence of indebtedness related to the Property.
(h) Evidence reasonably satisfactory to Optionee that any certificates, approvals, licenses, authorities or permits issued by local, state or federal agencies or bodies necessary to conduct the business conducted by the Contributed Entity on the Property have been transferred to the Optionee or the Optionee’s designee effective as of the date of the Initial Closing.
(i) Evidence reasonably satisfactory to Optionee that the insurance policies necessary or desirable to conduct the business conducted by the Contributed Entity on the Property have been transferred to the Optionee or the Optionee’s designee effective as of the date of the Initial Closing.
(j) Evidence reasonably satisfactory to Optionee that the Property is properly licensed to serve alcoholic beverages, whether by owner license, third party contract or otherwise, as permitted by applicable law.
(k) Evidence reasonably satisfactory to Optionee that all required consents of lessors and permits necessary to conduct the business conducted by the Contributed Entity with respect to the Property have been obtained.
(l) Any other documents reasonably necessary to assign, transfer and convey such Grantor’s Contributed Interest and effectuate the transactions contemplated hereby, including filings with any applicable governmental jurisdiction in which the Optionee is required to file its partnership documentation.
Documents to be Delivered by Seller At Closing At or prior to the Closing, Seller shall deliver or cause to be delivered to Purchaser the following, all in form and substance reasonably satisfactory to Purchaser:
a. Special Warranty Deed to Purchaser or Purchaser's nominee in recordable form, conveying good and marketable title in fee simple to the Property and Building, subject only to the Permitted Exceptions;
b. The Title Policy or a "marked-up" Title Commitment (including extended coverage and title endorsements) and indicating waiver or deletion of the Removable Exceptions;
c. A Xxxx of Sale executed by Seller, assigning, conveying and warranting to the Purchaser title to the Personal Property, if any, and the Intangible Property, if any, free and clear of all encumbrances;
d. The original executed Leases;
e. Letter from the tenants under the Leases (hereinafter referred to as "Tenant Estoppel Certificates") addressed to Purchaser or its nominee and Mortgagee, as hereinafter defined, in the form attached hereto as Exhibit "B". If Seller is unable to obtain Tenant Estoppel Certificates from all of the tenants, Seller shall provide Purchaser with a Seller's Estoppel Certificate for the tenants who did not provide Tenant Estoppel Certificates. The Seller's Estoppel Certificate shall contain the matters set forth in Exhibit "B" attached hereto;
f. Notices executed by Seller to all tenants, licensees or concessionaires, under the Leases and Project Contracts directing such parties to pay all rental and other payments to Purchaser or its agent;
g. All architectural drawings, plans, specifications, surveys, building permits, occupancy permits or other similar items in Seller's possession and control which Seller has created, used or relied upon for the ownership and maintenance of the Project;
h. A non-foreign certificate in accordance with the provisions of paragraph 22 hereof;
i. Insurance certificates in Seller's possession required by the tenants under the Lease;
j. A rent roll dated as of the Closing certified by Seller to Purchaser to be true, correct and complete;
k. All keys in possession of the Seller used in connection with the Project and the combinations to all locks included on the Project;
l. An affidavit of title;
m. A certificate from Seller stating that the representations and warranties set forth in paragraph 9 are true and accurate in an material respects as of the date of the Closing; and
n. Such other documents as Purchaser or the Title Company may reasonably request to enable Purchaser to consummate the Transaction contemplated by this Agreement.
Documents to be Delivered by the Seller On the 2021-B Closing Date, the Seller will deliver such other documents as the Purchaser may reasonably request.
Documents to be Delivered by Buyer At the Closing, Buyer shall deliver to Company the following documents, in each case duly executed or otherwise in proper form:
Documents to be Delivered by Holder(s). Each of the Holder(s) participating in any of the foregoing offerings shall furnish to the Company a completed and executed questionnaire provided by the Company requesting information customarily sought of selling security holders.
