Seller’s Deliveries at Closing At the Closing and unless otherwise waived in writing by the Buyer, the Sellers shall deliver to the Buyer the following, each of which shall be in a form reasonably acceptable to the Buyer (collectively, "Sellers' Closing Documents"):
(a) The Bill of Sale, duly executed and notarized by XeQute;
(b) All Third Party Consents and the release of all Liens on the Assets by the Lien Holders, together with the Instruments of Assignment and Assumption, duly executed by XeQute;
(c) The Sellers' Officer's Certificates, duly executed on behalf of Vertex and XeQute;
(d) Certified copies of any resolutions required to duly authorize and approve the Contemplated Transaction and the execution, performance and delivery of this Agreement, Sellers' Closing Documents and of all of the other documents to be executed and performed by the Sellers in connection with the Contemplated Transaction;
(e) The duly executed opinion of the Sellers' counsel, dated as of the Closing Date and addressed to the Buyer ("Sellers' Opinion"), in form and substance as set forth in the form annexed to this Agreement as Exhibit C and subject to the standard exceptions set forth in Sellers' Opinion. In rendering Sellers' Opinion, the Sellers' counsel may rely upon certificates of governmental officials and may place reasonable reliance upon certificates of the Sellers; and
(f) Such other instrument and documents, as the Buyer and the Buyer's counsel reasonably deem necessary or desirable in order to consummate the Contemplated Transaction, including without limitation evidence of the Sellers having taken all steps required to be taken by them prior to or at Closing under Article VI and Article VII hereof, including evidence of having obtained directors and officers liability insurance with the coverage described therein and paid the premium for same at the Closing.
Purchaser’s Deliveries Subject to the fulfillment or waiver of the conditions set forth in Section 7.2, Purchaser shall execute and/or deliver to Seller at the Closing all of the following:
(a) an amount equal to the sum of One Million Seventy-Five Thousand Dollars ($1,075,000) by wire transfer to such account as Seller shall designate by written notice delivered to Purchaser, or by delivery of a certified check or bank check payable to the order of Seller;
(b) the Note;
(c) an amount equal to the Inventory Amount by wire transfer to such account as Seller shall designate by written notice delivered to Purchaser, or by delivery of a certified check or bank check payable to the order of Seller;
(d) an amount equal to the face value of the Accounts Receivable by wire transfer to such account as Seller shall designate by written notice delivered to Purchaser, or by delivery of a certified check or bank check payable to the order of Seller;
(e) the employment agreement between Purchaser and Xxxxx X. Xxxxx, III in the form annexed hereto as Exhibit E (the "Employment Agreement");
(f) a certified copy of Purchaser's Certificate of Incorporation and Bylaws;
(g) a certificate of good standing of Purchaser, issued not earlier than ten (10) days prior to the Closing Date by the Secretary of State of New York;
(h) an incumbency and specimen signature certificate with respect to the officers of Purchaser executing this Agreement and Purchaser's Ancillary Documents on behalf of Purchaser;
(i) a certified copy of resolutions of Purchaser's board of directors, authorizing the execution, delivery and performance of this Agreement and Purchaser's Ancillary Documents;
(j) a closing certificate executed by an officer of Purchaser (or any other officer of Purchaser specifically authorized to do so), on behalf of Purchaser, pursuant to which Purchaser represents and warrants to Seller that Purchaser's representations and warranties to Seller are true and correct as of the Closing Date as if then originally made (or, if any such representation or warranty is untrue in any respect, specifying the respect in which the same is untrue), that all covenants required by the terms hereof to be performed by Purchaser on or before the Closing Date, to the extent not waived by Seller in writing, have been so performed (or, if any such covenant has not been performed, indicating that such covenant has not been performed), and that all documents to be executed and delivered by Purchaser at the Closing have been executed by duly authorized officers of Purchaser;
(k) the written opinion of XxXxxxxxxx & Xxxxx, LLP, counsel to Purchaser, addressed to Seller, dated as of the Closing Date, in substantially the form of Exhibit F attached hereto;
(l) IRS Forms 8594, in the form annexed hereto as Exhibit D.
(m) without limitation by the specific enumeration of the foregoing, all other documents required from Purchaser to consummate the transaction contemplated hereby.
Seller’s Deliveries Subject to the fulfillment or waiver of the conditions set forth in Section 7.1, Seller shall deliver to Purchaser , at the Closing, physical possession of all tangible Purchased Assets, and shall execute (where applicable in recordable form) and/or deliver or cause to be executed and/or delivered to Purchaser all of the following:
(a) the Employment Agreement, executed by Woody;
(b) certified copies of Seller's Articles of Incorporation and By-laws;
(c) certificates of good standing of Seller, issued not earlier than ten (10) days prior to the Closing Date by the State Corporation Commission of Virginia;
(d) an incumbency and specimen signature certificate with respect to the officers of Seller executing this Agreement and Seller's Ancillary Documents on behalf of Seller;
(e) a certified copy of resolutions of Seller's board of directors and shareholders, authorizing the execution, delivery and performance of this Agreement and Seller's Ancillary Documents;
(f) a xxxx of sale, executed by Seller, conveying all of the Equipment and other tangible personal property included in the Purchased Assets to Purchaser, free and clear of all Liens and containing the warranties of title set forth in this Agreement;
(g) an assignment to Purchaser executed by Seller, assigning to purchaser all of the Purchased Assets (other than the Equipment), free and clear of all Liens and containing the warranties of title set forth in this Agreement. If necessary in the reasonable opinion of Purchaser's counsel, Seller shall also execute and deliver (in recordable form where required) separate assignments of any of the Purchased Assets, where applicable, in the form required by the applicable governmental agencies, insurance companies, customers, lessors, and other parties with whom the assignments must be filed;
(h) a closing certificate duly executed by the President and Vice President if any of Seller, on behalf of Seller, pursuant to which Seller represents and warrants to Purchaser that Seller's representations and warranties to Purchaser are true and correct as of the Closing Date as if then originally made (or, if any such representation or warranty is untrue in any respect, specifying the respect in which the same is untrue), that all covenants required by the terms hereof to be performed by Seller on or before the Closing Date, to the extent not waived by Purchaser in writing, have been so performed (or, if any such covenant has not been so performed, indicating that such covenant has not been performed), and that all documents to be executed and delivered by Seller at the Closing have been executed by duly authorized officers of Seller;
(i) to the extent obtained, all necessary Consents or alternate arrangements with respect thereto, all as reasonably acceptable to Purchaser;
(j) certificates of title or origin (or like documents) with respect to all vehicles included in the Purchased Assets and other Equipment for which a certificate of title or origin is required in order for title thereto to be transferred to Purchaser;
(k) the written opinion of counsel to Seller, addressed to Purchaser, dated as of the Closing Date, in substantially the form of Exhibit G (it being understood that Purchaser's lenders may rely upon such opinion); and
(l) IRS Forms 8594, in the form annexed hereto as Exhibit D.
(m) the customer list described in Section 1.2 (c).
Buyer’s Deliveries At Closing of the Hotel, Buyer shall deliver the following:
Deliveries by Purchaser At the Closing, Purchaser will deliver or cause to be delivered to Sellers the following:
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.
Closing Deliveries by Purchaser At the Closing, Purchaser shall deliver the Consideration to the Sellers by wire transfer of immediately available funds in United States dollars to such account or accounts as the Sellers may direct by written notice to Purchaser.
Purchaser Deliveries At the Closing, Purchaser shall deliver to Seller:
(a) The Assignment and Assumption Agreement;
(b) Purchaser’s acceptance of its appointment as successor trustee or custodian, as applicable, of the XXX and Xxxxx Accounts included in the Deposits and assumption of the fiduciary obligations of the trustee or custodian with respect thereto, as contemplated by Section 2.4;
(c) The Branch Lease Assignments and such other instruments and documents as any landlord under a Branch Lease may reasonably require as necessary or desirable for providing for the assumption by Purchaser of a Branch Lease, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(d) The Tenant Assignments and such other instruments and documents as any subtenant under a Tenant Lease may reasonably require as necessary or desirable for providing for the assumption by Purchaser of a Tenant Lease, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(e) The Equipment Lease Assignments and such other instruments and documents as any lessor under an Equipment Lease may reasonably require as necessary or desirable for providing for the assumption by Purchaser of an Equipment Lease, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(f) The Assumed Contract Assignments and such other instruments and documents as any party under an Assumed Contract may reasonably require as necessary or desirable for providing for the assumption by Purchaser of an Assumed Contract, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(g) The Loan Documents Assignment and such other instruments and documents as Seller may reasonably require as necessary or desirable for providing for the assumption by Purchaser of the Loan Documents, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date; and
(h) The certificate required to be delivered by Purchaser pursuant to Section 9.2(e).
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,
Purchasers Deliverables Such Purchaser shall have delivered its Purchaser Deliverables in accordance with Section 2.2(b).
