At the Closing the Acquired Fund will have good and marketable title to the Acquired Fund’s Assets to be transferred to the Acquiring Fund pursuant to section 1.1 and full right, power, and authority to sell, assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, except those liens or encumbrances as to which the Acquiring Fund has received notice at or prior to the Closing, and upon delivery and payment for such Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including such restrictions as might arise under the 1933 Act and the 1940 Act, except those restrictions as to which the Acquiring Fund has received notice and necessary documentation at or prior to the Closing;
At the Closing the Company shall deliver to the Investor a Note representing the principal amount as is prescribed in Section 1.1 above and the Investor shall cause to be delivered to the Company a wire transfer to the Company's order in the aggregate amount of the principal amount of the Investment as is prescribed in Section 1.1 above.
At the Closing as collateral security for the payment of any indemnification obligations of the Stockholders pursuant to Sections 12.1 and 12.2 hereof and for the payment of amounts due pursuant to Article 3 hereof, the following shall be delivered to UniCapital's Transfer Agent as indemnity escrow agent (the "Indemnity Escrow Agent"):
At the Closing the Company will issue Warrants to purchase shares of the Company's Common Stock exercisable at $0.01 per share (the "Warrants") which Warrants will be substantially in the form of Warrant attached hereto as Exhibit C. The Warrants will be issued pro rata to Purchasers of the Purchased Shares including Shares sold in Subsequent Closings, if any, and will entitle such Purchasers to acquire Common Stock equal, in the aggregate, to 12.90% of the Fully Diluted Common Stock of the Company as of the Closing (assuming the issuance of all Purchased Shares at the Subsequent Closing). In addition, within 10 days following the Acquisition of Einstein, the Company will issue pro-rata to the Purchasers such additional Warrants, if any, sufficient to cause the Warrants issued under this Section 2.1 to allow the purchase of that number of shares of Common Stock equal to 9.67% of the Fully Diluted Common Stock of the Company at the time of the Acquisition of Einstein exclusive of equity sold to unaffiliated third parties (other than shares issued in consideration for the equity of Einstein/Noah Bagel Corporation ("Einstein"), its assets and/or its business) in transactions related to the Acquisition of Einstein. The term "Fully Diluted" shall mean the fully diluted Common Stock of the Company, determined by taking into account all options, warrants and other convertible securities, but not including any warrants, or options with a strike price greater than $3.00 per share and not including any of the Warrants issued under Section 2.2.
At the Closing in exchange for contribution of the Contributed Interest from the REIT to the Operating Partnership as described in Section 1.01(b), the Operating Partnership shall issue to the REIT a number of OP Units equal to the number of REIT Shares issued by the REIT in exchange for such Contributed Interest.