Items to be Delivered at Closing At the Closing and subject to the terms and conditions herein contained:
(a) Seller shall deliver to the Buying Parties the following:
(i) such bills of sale with covenants of warranty, assignments, endorsements, and other good and sufficient instruments and documents of conveyance and transfer, in form reasonably satisfactory to the Buying Parties and their counsel, as shall be necessary and effective to transfer and assign to and vest in the Buying Parties all of Seller's right, title and interest in and to the Assets, including without limitation, (A) good and valid title in and to all of the Assets owned by Seller, (B) good and valid leasehold interests in and to all of the Assets leased by Seller as lessee, and (C) all of Seller's rights under all agreements, contracts, commitments, instruments and other documents included in the Assets to which Seller is a party or by which it has rights on the Closing Date;
(ii) original instruments of consent or waiver duly executed by third parties with respect to any contracts, agreements, leases or other rights or obligations being transferred to the Buying Parties hereunder and requiring a consent or waiver therefore;
(iii) a duly executed copy of a Management Agreement (the "Management Agreement"), in the form annexed hereto as EXHIBIT D; and
(iv) such other certificates and documents as the Buying Parties or their counsel may reasonably request.
(b) Shawx xxxll deliver to the Buying Parties the following:
(i) a duly executed copy of an Employment Agreement and Covenant Not to Compete (the "Employment Agreement), in the form annexed hereto as EXHIBIT E which by virtue of the substantial goodwill associated with the employment of Shawx will contain a liquidated damages provision in the amount of Five Hundred Thousand and no/100 Dollars ($500,000.00) if Shawx xxxves the employ of Diasti without cause or is discharged for cause;
(ii) a duly executed copy of a Lease Agreement (the "Lease Agreement), in the form annexed hereto as EXHIBIT F;
(iii) a duly executed copy of a Consulting Agreement in the form annexed hereto as EXHIBIT G; and
(iv) such other certificates and documents as the Buying Parties or their counsel may reasonably request. Simultaneously with delivery of the items set forth in subsections (a) and (b) of this Section 2.2, Seller shall take all such steps as may be required to put the Buying Parties in actual possession and operating control of the Assets.
(c) The Buying Parties shall deliver to Seller the following:
(i) the portion of the Purchase Price due at Closing;
(ii) the Coast Note;
(iii) the Diasti Note;
(iv) a duly executed copy of the Management Agreement; and
(v) such other certificates and documents as Seller or its counsel may reasonably request.
(d) The Buying Parties shall deliver to Shawx xxx following:
(i) the Shawx Xxxe;
(ii) a duly executed copy of the Employment Agreement;
(iii) a duly executed copy of the Lease Agreement;
(iv) a duly executed copy of the Consulting Agreement; and
(v) such other certificates and documents as Shawx xx his counsel may reasonably request.
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 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 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.
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.
Closing Deliveries by the Seller At the Closing, the Seller shall deliver or cause to be delivered to the Purchaser:
(a) the bring-down certificates referred to in Sections 3.5(a) and 3.5(b);
(b) a certificate signed by a senior officer of the Seller certifying (i) the articles and by-laws of the Seller, (ii) the resolution of the Seller's directors approving the subject matter of this Agreement and (iii) the signatures of the persons authorized to sign this Agreement and/or any of the documents contemplated herein on behalf of the Seller and certifying the genuineness of such signatures;
(c) a certificate of status (or equivalent) for the Seller issued within two (2) days prior to the Closing;
(d) all deeds, assignments, bills of sale and other conveyancing documents required to be executed and delivered by Seller or a Subsidiary of the Seller to transfer the various categories of Purchased Assets described in Section 2.1 and for the Purchaser to assume the Assumed Liabilities;
(e) a duly executed signature page to the Escrow Agreement;
(f) a duly executed signature page to the Non-Compete Agreement;
(g) a duly executed request form (kabunushi-meibo-meigi-kakikae-seikyusho) in the name of the Seller in order to register the Purchaser as the holder of the CCSC Shares on the shareholders book (kabunushi-meibo) of CCSC, a copy of the minutes of the shareholders book of CCSC showing that the Purchaser is the owner of the CCSC Shares as of the Closing Date duly certified by the representative director of CCSC and a copy of the minutes of the shareholders meeting of CCSC approving the transfer of the CCSC Shares from the Seller to the Purchaser duly certified by the representative director of CCSC;
(h) a duly executed signature page to the Transition Services Agreement;
(i) evidence of receipt of the Required Consents;
(j) possession of the Purchased Assets;
(k) a certificate duly executed by Seller, pursuant to treasury regulations section 1.1445-2(b), stating under penalties of perjury that Seller is not a foreign person within the meaning of Section 1445 of the Code;
(l) a properly executed IRS Form W-9 from Seller;
(m) evidence reasonably satisfactory to Purchaser that Seller has requested, to the extent available, a Tax clearance certificate, and to the extent not available, a certificate of good standing or certificate of no tax due, from the taxing authorities of Florida, Georgia, Illinois, Colorado, California, New Jersey and Pennsylvania; and
(n) such other stockholder approvals, Governmental Authority approvals, documents, instruments, certificates and other documents dated as of the Closing Date as are expressly required under the terms of this Agreement.
Documents to be Delivered by Xxxxxx(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.
Deliveries by the Seller At the Closing, the Seller shall deliver or cause to be delivered to the Purchasing Parties:
(a) an Instrument of Assignment and Bxxx of Sale substantially in the form attached as Exhibit A, duly executed by the Seller (the "Instrument of Assignment and Bxxx of Sale");
(b) a special warranty deed ("Deed") in recordable form relating to the Owned Real Property substantially in the form attached as Exhibit B;
(c) a Trademark Assignment substantially in the form attached as Exhibit C (the "Trademark Assignment") and a Patent Assignment substantially in the form attached as Exhibit D (the "Patent Assignment"), each duly executed by the Seller;
(d) an Assumption Agreement substantially in the form attached as Exhibit E (the "Assumption Agreement"), duly executed by the Seller;
(e) a Transition Services Agreement substantially in the form attached as Exhibit F (the "Transition Services Agreement"), duly executed by the Seller;
(f) a License Agreement substantially in the form attached as Exhibit G (the "License Agreement"), duly executed by the Seller;
(g) a certificate, dated the Closing Date and signed by a senior officer of the Seller, certifying the satisfaction of the conditions set forth in Section 9.2(a), Section 9.2(b) and Section 9.2(c);
(h) a certificate of good standing of the Seller from the Secretary of State of the State of Delaware;
(i) a certificate of the Secretary of the Seller certifying as accurate and complete as of the Closing certain resolutions adopted by the Board of Directors of the Seller approving the execution and delivery of this Agreement and each Ancillary Agreement and the consummation of the Transactions;
(j) UCC termination statements, if any, and any other necessary documents that, when filed on the Closing Date, will be sufficient to release all Liens (other than Permitted Liens) on the Assets;
(k) a certificate of non-foreign status as provided in U.S. Department of Treasury Regulation Section 1.1445-2(b); and
(l) all other previously undelivered documents required to be delivered by the Seller to the Purchasing Parties at or prior to the Closing pursuant to this Agreement.
