Common use of Performance by Sellers Clause in Contracts

Performance by Sellers. At the Closing, Company or LLC as provided shall deliver to Purchaser the following: (i) Company shall deliver a b▇▇▇ of sale substantially in the form set forth as Schedule 9.1(a)(i) (the “B▇▇▇ of Sale”) for all of the Company Assets described in Sections 2.1 (a) through (c), (e) and (i) property duly executed by Company, and such other good and sufficient instruments of conveyance, transfer and assignment (in form and substance reasonably acceptable to Purchaser) as shall be necessary to vest Purchaser good and valid title to the Assets free and clear of all Encumbrances; (ii) an assignment of all of Company’s rights, if any, in the Assets that are intangible personal property described in Sections 2.1 (d), (f), (g) and (h) substantially in the form set forth as Schedule 9.1(a)(ii), which assignment shall also contain Purchaser’s undertaking and assumption of the Assumed Contracts, duly executed by Company (the “Assignment and Assumption Agreement”); (iii) full possession of the Owned Real Property, together with the following: (A) a Warranty Deed, conveying fee simple title to each such parcel of real property properly executed by the LLC, each said deed to be in proper statutory form for recording; (B) FIRPTA affidavit; (C) Form 1099-B; (D) an owner's affidavit, which is in a form reasonably acceptable to the title company; (E) a certified copy of the formation documents of Company and LLC, and (F) a Certificate of Good Standing of each of Company and LLC in the State of Nebraska and any jurisdiction in which they are qualified to do business, in each case dated within thirty (30) days of the Closing Date.; (iv) all books and records of Company relating to the Assets, excluding the Excluded Assets; (v) evidence satisfactory to Purchaser that the employment of all Hired Employees by Company has been terminated, effective on or prior to the Closing Date, and evidenced that Purchaser has hired all the Hired Employees on the terms and conditions set forth in Section 5.9(a); (vi) the Escrow Agreement duly executed by each party; (vii) the Pay-Off letters together with any Required Financing Statements; (viii) (A) closing statement setting forth customary pro-rations between the parties in accordance with local customs and procedures; (B) keys and/or access codes to any of the Assets including buildings, facilities, systems and computers; (C) a written commitment from the title company selected by Purchaser to issue (the expense to be divided between LLC and Purchaser) within fifteen (15) days after Closing, an ALTA owner's policy of title insurance in an amount equal to not less than $4,110,000, standard form, insuring LLC as the owner of such real property subject only to the usual printed exceptions; and (D) such other documents as may be requested by Purchaser to confirm and carry out the intent and purpose of this Agreement, all of the foregoing in form and substance satisfactory to Purchaser; (ix) a duly executed consulting agreement substantially in the form set forth in Schedule 9.1(a)(ix) (the “Consulting Agreement”); (x) an IP Assignment Agreement executed by Company assigning what interest, if any, it has in the IP in the form set forth in Schedule 9.1(a)(x) duly executed by Company, if applicable (the “IP Assignment Agreement”); (xi) physical possession of the Assets wherever located; (xii) a Company certificate, substantially in the form set forth as Schedule 9.1(a)(xii), executed by an executive officer of Company, as to the accuracy of their representations and warranties as of the date of this Agreement and as of the Closing in accordance with Section 7.1 and as to their compliance with and performance of their covenants and obligations to be performed or complied with at or before the Closing in accordance with Section 7.2, and the deliveries required to be delivered pursuant to Section 7.8 have been made on or prior to Closing; (xiii) an LLC certificate, substantially in the form set forth as Schedule 9.1(a)(xiii),executed by the sole Manager of LLC, as to the accuracy of their representations and warranties as of the date of this Agreement and as of the Closing in accordance with Section 7.1 and as to their compliance with and performance of their covenants and obligations to be performed or complied with at or before the Closing in accordance with Section 7.2, and the deliveries required to be delivered pursuant to Section 7.8 have been made on or prior to Closing; (xiv) a certificate of the Secretary of Company substantially in the form set forth as Schedule 9.1(a)(xiv), (a) certifying, as complete and accurate as of the Closing, attached copies of the governing documents of Company, (b) certifying and attaching all requisite resolutions or actions of Company's Board of Directors and shareholders approving the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby; (xv) a certificate of the sole Manager of LLC substantially in the form set forth as Schedule 9.1(a)(xv), (a) certifying, as complete and accurate as of the Closing, attached copies of the governing documents of LLC, (b) certifying and attaching all requisite resolutions or actions of LLC’s sole Manager approving the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby; (xvi) any originally executed Powers of Attorney used in connection with the execution of this Agreement and such other related documents and instruments as Purchaser may reasonably request; (xvii) the opinion of legal counsel to Sellers acceptable to Purchaser, in substantially the form described in Schedule 9.1(a)(xvii), addressing such other matters as Purchaser shall reasonably request; and (xviii) such other evidence of the performance of all covenants and satisfaction of all conditions required of Sellers by this Agreement, at or prior to the Closing, as Purchaser or its counsel may reasonably require.

Performance by Sellers. At the Closing, Company or LLC as provided shall deliver to Purchaser the following: (i) Company shall deliver a b▇▇▇▇ of sale substantially in the form set forth as Schedule 9.1(a)(i) (the “B▇▇▇▇ of Sale”) for all of the Company Assets described in Sections 2.1 (a) through (c), (e) and (i) property duly executed by Company, and such other good and sufficient instruments of conveyance, transfer and assignment (in form and substance reasonably acceptable to Purchaser) as shall be necessary to vest Purchaser good and valid title to the Assets free and clear of all Encumbrances; (ii) an assignment of all of Company’s rights, if any, in the Assets that are intangible personal property described in Sections 2.1 (d), (f), (g) and (h) substantially in the form set forth as Schedule 9.1(a)(ii), which assignment shall also contain Purchaser’s undertaking and assumption of the Assumed Contracts, duly executed by Company (the “Assignment and Assumption Agreement”); (iii) full possession of the Owned Real Property, together with the following: (A) a Warranty Deed, conveying fee simple title to each such parcel of real property properly executed by the LLC, each said deed to be in proper statutory form for recording; (B) FIRPTA affidavit; (C) Form 1099-B; (D) an owner's affidavit, which is in a form reasonably acceptable to the title company; (E) a certified copy of the formation documents of Company and LLC, and (F) a Certificate of Good Standing of each of Company and LLC in the State of Nebraska and any jurisdiction in which they are qualified to do business, in each case dated within thirty (30) days of the Closing Date.; (iv) all books and records of Company relating to the Assets, excluding the Excluded Assets; (v) evidence satisfactory to Purchaser that the employment of all Hired Employees by Company has been terminated, effective on or prior to the Closing Date, and evidenced that Purchaser has hired all the Hired Employees on the terms and conditions set forth in Section 5.9(a); (vi) the Escrow Agreement duly executed by each party; (vii) the Pay-Off letters together with any Required Financing Statements; (viii) (A) closing statement setting forth customary pro-rations between the parties in accordance with local customs and procedures; (B) keys and/or access codes to any of the Assets including buildings, facilities, systems and computers; (C) a written commitment from the title company selected by Purchaser to issue (the expense to be divided between LLC and Purchaser) within fifteen (15) days after Closing, an ALTA owner's policy of title insurance in an amount equal to not less than $4,110,000, standard form, insuring LLC as the owner of such real property subject only to the usual printed exceptions; and (D) such other documents as may be requested by Purchaser to confirm and carry out the intent and purpose of this Agreement, all of the foregoing in form and substance satisfactory to Purchaser; (ix) a duly executed consulting agreement substantially in the form set forth in Schedule 9.1(a)(ix) (the “Consulting Agreement”); (x) an IP Assignment Agreement executed by Company assigning what interest, if any, it has in the IP in the form set forth in Schedule 9.1(a)(x) duly executed by Company, if applicable (the “IP Assignment Agreement”); (xi) physical possession of the Assets wherever located; (xii) a Company certificate, substantially in the form set forth as Schedule 9.1(a)(xii), executed by an executive officer of Company, as to the accuracy of their representations and warranties as of the date of this Agreement and as of the Closing in accordance with Section 7.1 and as to their compliance with and performance of their covenants and obligations to be performed or complied with at or before the Closing in accordance with Section 7.2, and the deliveries required to be delivered pursuant to Section 7.8 have been made on or prior to Closing; (xiii) an LLC certificate, substantially in the form set forth as Schedule 9.1(a)(xiii),executed by the sole Manager of LLC, as to the accuracy of their representations and warranties as of the date of this Agreement and as of the Closing in accordance with Section 7.1 and as to their compliance with and performance of their covenants and obligations to be performed or complied with at or before the Closing in accordance with Section 7.2, and the deliveries required to be delivered pursuant to Section 7.8 have been made on or prior to Closing; (xiv) a certificate of the Secretary of Company substantially in the form set forth as Schedule 9.1(a)(xiv), (a) certifying, as complete and accurate as of the Closing, attached copies of the governing documents of Company, (b) certifying and attaching all requisite resolutions or actions of Company's Board of Directors and shareholders approving the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby; (xv) a certificate of the sole Manager of LLC substantially in the form set forth as Schedule 9.1(a)(xv), (a) certifying, as complete and accurate as of the Closing, attached copies of the governing documents of LLC, (b) certifying and attaching all requisite resolutions or actions of LLC’s sole Manager approving the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby; (xvi) any originally executed Powers of Attorney used in connection with the execution of this Agreement and such other related documents and instruments as Purchaser may reasonably request; (xvii) the opinion of legal counsel to Sellers acceptable to Purchaser, in substantially the form described in Schedule 9.1(a)(xvii), addressing such other matters as Purchaser shall reasonably request; and (xviii) such other evidence of the performance of all covenants and satisfaction of all conditions required of Sellers by this Agreement, at or prior to the Closing, as Purchaser or its counsel may reasonably require.