Assets to be Transferred Except as otherwise provided in Section 2.03, on the terms and subject to the conditions of this Agreement, at the Closing and effective as of the Effective Time, Seller shall sell, convey, assign and transfer to Purchaser all of Seller’s right, title and interest in and to the following properties and assets that are used exclusively in connection with the Restaurants (collectively, the “Assets”) free and clear of all Liens except for Permitted Liens:
(a) A leasehold interest in the Owned Real Property and a subleasehold interest in the Leased Real Property;
(b) all of the furniture, trade fixtures and equipment that are owned by Seller and located at a Restaurant as of the Effective Time (collectively, the “Equipment”);
(c) the Contracts to which Seller is a party that are in effect as of the Effective Time and that relate exclusively to the Business listed on Schedule 2.02(b) (collectively, the “Assigned Contracts”);
(d) the cash bank for each Existing Restaurant and other prepaid and special items listed on Schedule 2.02(c) (collectively, the “Special Items”);
(e) the Inventory and all other inventories, supplies and other tangible personal property that are owned by Seller and located in a Restaurant as of the Effective Time including counters, shelving, racks, slat walls, display cases, décor, tables, seating, signs, promotional items and materials, new and unused uniforms, smallwares and office supplies (collectively, the “Personal Property”);
(f) all tools, equipment, and repair and maintenance supplies located in or on the Leased Vehicles (the “Repair and Maintenance Inventory”);
(g) to the extent transferable under applicable law, the Permits necessary for the operation of the Business as currently operated, and Seller will provide to Purchaser prior to the Closing a list of all Permits held by Seller with respect to the Business; and
(h) all of Seller’s rights against its suppliers with respect to express or implied warranties made in the sale to Seller of the Assets to the extent such rights (i) automatically transfer to the Purchaser as the new owner of the Assets, (ii) do not require the consent of any third parties and (iii) do not impose any costs or expenses on Seller or its Affiliates.
Assets to be Purchased At Closing (as hereinafter defined) subject to the terms and conditions of this Agreement, Seller shall sell to Buyer, and Buyer shall purchase from Seller, all or substantially all of Seller's assets utilized in the operation of Seller's Boulder Facility (the "Business"), free and clear of all liens, encumbrances, and charges (the "Assets"), which Assets shall include without limitation the following:
(a) all inventory owned, used or held for use with respect to Seller's Business, including parts, materials, packaging, works in progress and finished goods located at Seller's Boulder Facility at the close of business on the date of Closing, as hereinafter defined on the attached Schedule 1(a) (the "Inventory");
(b) all of Seller's right, title and interest in and to those certain fixed assets that are described on the attached Schedule 1(b) (the "Fixed Assets");
(c) all of Seller's right, title and interest in and to any and all licenses and permits, to the extent assignable, whether state, federal, county, municipal, or otherwise material to the operation of the Boulder Facility, leases, equipment warranties, maintenance contracts, service contacts and other commitments as may be assumed in writing by Buyer or as set forth on the attached Schedule 1(c); and
(d) all of Seller's right, title and interest in and to the general intangibles and goodwill associated with the operation of the Assets at Seller's Boulder Facility, including all telephone numbers used by Seller at the Boulder Facility, access to certain books and records of Seller which pertain to the Boulder Facility Business, including sales, customer lists and suppliers, paid invoices, repair orders, employee records for the last three years, yellow page advertising (subject to Section 12.1), copies of pending sales orders, work in process and all other documents associated with the Boulder Business (the "Company Records").
Penalty With Respect to Securities Repurchased by the Manager If pursuant to the provisions of Section 5.1 hereof and prior to the termination of the Manager’s authority to cover any short position incurred under the applicable AAU or such other date as the Manager may specify in a Wire, either: (a) the Manager purchases or contracts to purchase for the account of any Underwriter in the open market or otherwise any Securities which were retained by, or released to, you for direct sale or any Securities sold pursuant to Section 3.4 hereof for which you received a portion of the Selling Concession set forth in the applicable AAU, or any Securities which may have been issued on transfer or in exchange for such Securities, and which Securities were therefore not effectively placed for investment, or (b) if the Manager has advised you by Wire that trading in the Securities will be reported to the Manager pursuant to the “Initial Public Offering Tracking System” of The Depository Trust Company (“DTC”) and the Manager determines, based on notices from DTC, that your customers sold a number or amount of Securities during any day that exceeds the number or amount previously notified to you by Wire, then you authorize the Manager either to charge your account with an amount equal to such portion of the Selling Concession set forth in the applicable AAU received by you with respect to such Securities or, in the case of clause (b), such Securities as exceed the number or amount specified in such Wire, or to require you to repurchase such Securities or, in the case of clause (b), such Securities as exceed the number or amount specified in such Wire, at a price equal to the total cost of such purchase, including transfer taxes, accrued interest, dividends, and commissions, if any.
Transfer of Optioned Interests For each exercise of the Equity Interest Purchase Option:
1.4.1 Party B shall cause Party C to promptly convene a shareholders’ meeting, at which a resolution shall be adopted approving Party B’s transfer of the Optioned Interests to Party A and/or the Designee(s);
1.4.2 Party B shall obtain written statements from the other shareholders of Party C giving consent to the transfer of the equity interest to Party A and/or the Designee(s) and waiving any right of first refusal related thereto;
1.4.3 Party B shall execute an equity interest transfer contract with respect to each transfer with Party A and/or each Designee (whichever is applicable), in accordance with the provisions of this Agreement and the Equity Interest Purchase Option Notice regarding the Optioned Interests;
1.4.4 The relevant Parties shall execute all other necessary contracts, agreements or documents, obtain all necessary government licenses and permits and take all necessary actions to transfer valid ownership of the Optioned Interests to Party A and/or the Designee(s), unencumbered by any security interests, and cause Party A and/or the Designee(s) to become the registered owner(s) of the Optioned Interests. For the purpose of this Section and this Agreement, “security interests” shall include securities, mortgages, third party’s rights or interests, any stock options, acquisition right, right of first refusal, right to offset, ownership retention or other security arrangements, but shall be deemed to exclude any security interest created by this Agreement, Party B’s Equity Interest Pledge Agreement and Party B’s Power of Attorney. “Party B’s Equity Interest Pledge Agreement” as used in this Agreement shall refer to the Interest Pledge Agreement executed by and among Party A, Party B and Party C on the date hereof and any modification, amendment and restatement thereto. “Party B’s Power of Attorney” as used in this Agreement shall refer to the Power of Attorney executed by Party B on the date hereof granting Party A with power of attorney and any modification, amendment and restatement thereto.
COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER The Fund will pay to the Manager as compensation for the Manager's services rendered, for the facilities furnished and for the expenses borne by the Manager pursuant to Section 1, a fee, computed and paid monthly at the annual rate of 0.45% of the Fund's average daily net asset value. Such average daily net asset value of the Fund shall be determined by taking an average of all of the determinations of such net asset value during such month at the close of business on each business day during such month while this Contract is in effect. Such fee shall be payable for each month within five (5) business days after the end of such month. In the event that expenses of the Fund for any fiscal year should exceed the expense limitation on investment company expenses imposed by any statute or regulatory authority of any jurisdiction in which shares of the Trust are qualified for offer and sale, the compensation due the Manager for such fiscal year shall be reduced by the amount of such excess by a reduction or refund thereof. In the event that the expenses of the Fund exceed any expense limitation which the Manager may, by written notice to the Trust, voluntarily declare to be effective with respect to the Fund, subject to such terms and conditions as the Manager may prescribe in such notice, the compensation due the Manager shall be reduced, and, if necessary, the Manager shall bear the Fund's expenses to the extent required by such expense limitation. If the Manager shall serve for less than the whole of a month, the foregoing compensation shall be prorated.
Holders to Be Treated as Owners The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security.
COMPENSATION TO BE PAID BY THE FUND TO THE MANAGER The Fund will pay to the Manager as compensation for the Manager’s services rendered, for the facilities furnished and for the expenses borne by the Manager pursuant to paragraphs (a), (b), and (c) of Section 1, a fee, based on the Fund’s Average Net Assets, computed and paid monthly at the annual rates set forth on Schedule B attached to this Contract, as from time to time amended. The Fund’s “
Assignment of Membership Interest A Member may not assign the Member’s interest in the Company except with the written consent of all the other Members of record. Any such consent to assignment automatically entitles the assignee to become a Member. A Member’s membership interest may be evidenced by a certificate of membership interest issued by the Company.
Assigned Interest[s] Assignor[s]6 Assignee[s]7 Aggregate Amount of Revolving Credit Facility8 Amount of Revolving Credit Commitment/ Revolving Credit Loans Assigned Percentage Assigned of Revolving Credit Facility9 CUSIP Number $ $ % $ $ % $ $ % 6 List each Assignor, as appropriate. 7 List each Assignee and, if available, its market entity identifier, as appropriate. 8 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. 9 Set forth, to at least 9 decimals, as a percentage of the Revolving Credit Facility. Assignor[s]10 Assignee[s]11 Aggregate Amount of Term Loans for all Lenders12 Amount of Term Loans Assigned Percentage of Term Loans13 CUSIP Number $ $ % $ $ % 10 List each Assignor, as appropriate. 11 List each Assignee and, if available, its market entity identifier, as appropriate. 12 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. 13 Set forth, to at least 9 decimals, as a percentage of the Term Loans of the Term Facility. [7. Trade Date: __________________]14 Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] The terms set forth in this Assignment and Assumption are hereby agreed to: [NAME OF ASSIGNOR] By: [NAME OF ASSIGNOR] By: Title: [NAME OF ASSIGNEE] By: Title: [NAME OF ASSIGNEE] By: Title: 14 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. 15 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable). 16 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable). [Consented to and]17 Accepted: BANK OF AMERICA, N.A., as Administrative Agent By: Title: [Consented to and]18 Accepted: BANK OF AMERICA, N.A., as a Swing Line Lender and L/C Issuer By: Title: [Consented to and]19 Accepted: XXXXX FARGO BANK, N.A., as a Swing Line Lender and L/C Issuer By: Title: [Consented to and]20 Accepted: CAPITAL ONE, NATIONAL ASSOCIATION, as a Swing Line Lender and L/C Issuer By: Title: 17 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. 18 To be added only if the consent of the Swing Line Lender and L/C Issuer is required by the terms of the Credit Agreement. 19 To be added only if the consent of the Swing Line Lender and L/C Issuer is required by the terms of the Credit Agreement. 20 To be added only if the consent of the Swing Line Lender and L/C Issuer is required by the terms of the Credit Agreement. [Consented to:]21 EMPIRE STATE REALTY OP, L.P. By: Title: 21 To be added only if the consent of the Borrower is required by the terms of the Credit Agreement.
Purchase and Sale; Purchase Price 2.1 Subject to the terms and conditions herein contained, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller the Property herein described. The total purchase price for the Property shall be the sum of Seven Million Nine Hundred Thirty Six Thousand Five Hundred Eight and 00/100 Dollars ($7,936,508.00) (the “Purchase Price”).
2.2 The Purchase Price, less the Deposit (as hereinafter defined), shall be paid to Seller at the Closing, plus or minus prorations and other adjustments hereunder, by federal wire transfer of immediately available funds.
2.3 Within two (2) business days following the Effective Date, Purchaser shall deposit with First American Title Insurance Company, Attn.: Xxxxxx Xxxxxxx, 000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 ( “Escrow Agent”), in escrow, an xxxxxxx money deposit in the amount of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) (the “Initial Deposit”), pursuant to wire instructions to be supplied by Escrow Agent (the “Escrow Wire Instructions”). Provided this Agreement remains in full force and effect, prior to the expiration of the Inspection Period, Purchaser shall deliver an additional deposit of Two Hundred Fifty Thousand and NO/100 ($250,000.00) (the “Second Deposit”, and together with the Initial Deposit, the “Deposit”) into escrow with Escrow Agent pursuant to the Escrow Wire Instructions. The Deposit shall be held in escrow by Escrow Agent pending the Closing. At the Closing, the Deposit shall be applied against the Purchase Price, or, if this transaction is not consummated, delivered to Seller or Purchaser (as the case may be), in accordance with the terms hereof. The parties agree that the liability of Escrow Agent to the parties hereto shall be only as expressed in this Agreement. It is specifically agreed that Escrow Agent shall not be liable for any mistake or error of judgment in the discharge of its functions as Escrow Agent hereunder, but shall be liable only for bad faith or negligence. In the event that there shall be any action or legal proceedings involved or arising out of this Agreement, to which action or legal proceeding Escrow Agent is or may be a party, Escrow Agent shall be entitled, at any time, in its sole discretion, to pay the Deposit, or any portion thereof, into court, and, upon so doing, it shall be relieved of any further responsibility or liability as to the Deposit. At Purchaser’s election and expense, the Deposit shall be invested by Escrow Agent in an interest bearing account, and the interest shall be deemed to constitute part of the Deposit.
