By Purchaser. (i) if Seller shall have breached in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach cannot be or has not been cured within ten Business Days after the giving of written notice by Purchaser to Seller specifying such breach and so that the conditions set forth in Section 7.1(e) or Section 7.1(f) would not be satisfied at the time of such breach;
(ii) if there shall have occurred any Material Adverse Effect or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect;
(iii) if Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets;
(iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001;
(v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date;
(vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect;
(vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order;
(viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c);
(ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction;
(x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser;
(xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement;
(xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Ba...
By Purchaser. Subject to the limitations set forth in this Article 6 and Section 7.15, from and after the Closing Purchaser agrees to indemnify and hold harmless Seller and Seller’s Affiliates together with their respective directors, officers, managers, employees and agents (each a “Seller Indemnified Party”) from and against any and all Losses that any Seller Indemnified Party incurs by reason of or in connection with any of the following circumstances:
(i) Any breach by Purchaser of any representation or warranty made by it in Article 3 or any breach or violation of any covenant, agreement or obligation of Purchaser contained herein; and
(ii) As set forth in Part VI of Appendix B.
By Purchaser. (i) if the Company shall have failed to perform in any material respect any of its obligations hereunder or shall have breached in any respect any representation or warranty contained herein qualified by materiality or shall have breached in any material respect any representation or warranty not so qualified, and the Company has failed to perform such obligation or cure such breach, within 30 days of its receipt of written notice thereof from Purchaser, and such failure to perform shall not have been waived in accordance with the terms of this Agreement;
(ii) if the Board of Directors of the Company or any committee thereof withdraws or modifies (or publicly announces its intention to do so, or resolves to do so) in a manner adverse to Purchaser (as determined by Purchaser in its reasonable judgment) its approval or recommendation of this Agreement or the transactions contemplated hereby or approves or recommends a Transaction Proposal;
(iii) if the Board of Directors of the Company publicly announces its determination not to effect the Distributions;
(iv) if any of the conditions set forth in Section 9.01 or 9.03 shall become impossible to fulfill (other than as a result of any breach by Purchaser of the terms of this Agreement) and shall not have been waived in accordance with the terms of this Agreement;
(v) if permitted pursuant to Section 8.04 or 8.06;
(vi) if the Company shall make any substantive amendment to any Transaction Agreement after the Review Cut-Off Time without Purchaser's consent;
By Purchaser. At the Closing, Purchaser shall deliver, or cause to be delivered, the following: (i) a certificate, dated the Closing Date, signed by an executive officer of Purchaser, certifying as to the matters set forth in Sections 7.03(a) and 7.03(b); (ii) pursuant to instructions set forth in the Funds Flow Memorandum, to each Seller, a payment in an amount equal to the proportion of such Seller’s Pro Rata Share of the Closing Payment; (iii) pursuant to instructions set forth in the Funds Flow Memorandum, a payment in an amount equal to $3,000,000 (the “Indemnity Escrow Deposit”), to an account (the “Indemnity Escrow Account”) specified by an escrow agent mutually agreed upon between the Bank and Purchaser (the “Escrow Agent”), which Indemnity Escrow Deposit shall be held, safeguarded and released pursuant to the terms of the Escrow Agreement; notwithstanding anything to the contrary herein, the Purchase Price allocable to the Shares held by the Minority Shareholders will not be subject to adjustment for the Indemnity Escrow Deposit, and, accordingly, Sellers who are not Minority Shareholders shall bear more than their Pro Rata Share (under clause (i) of the definition of Pro Rata Share) of the adjustment to the Purchase Price for the Indemnity Escrow Deposit; (iv) pursuant to instructions set forth in the Funds Flow Memorandum, a payment in an amount equal to $2,000,000 (the “Adjustment Escrow Deposit,” and together with the Indemnity Escrow Deposit, the “Escrow Deposits”) to an account (the “Adjustment Escrow Account”) specified by the Escrow Agent, which Adjustment Escrow Deposit shall be held, safeguarded and released pursuant to the terms of the Escrow Agreement; (v) a counterpart to the Escrow Agreement; (vi) pursuant to instructions set forth in the Funds Flow Memorandum, Purchaser shall pay any unpaid amounts of the Bank Transaction Expenses due and owing to any third-party advisors, such payment to be by wire transfer of immediately available funds; and (vii) the Cross-Receipt.
By Purchaser. Purchaser shall indemnify, defend and hold harmless Seller from and against any and all Losses arising out of or otherwise in respect of any inaccuracy in or breach of any representations, warranties, covenants or agreements of Purchaser contained in this Agreement.
By Purchaser. The Purchaser will do, execute, acknowledge and deliver, or shall cause to be done, executed, acknowledged and delivered, all such further acts, conveyances and assurances as Seller may reasonably require for accomplishment of the purposes of this Agreement.
By Purchaser. (a) Purchaser represents and warrants to Seller that, except as otherwise disclosed to Seller.
5.3.1. Purchaser is a Massachusetts corporation duly organized, validly existing and in good standing under the laws of such State, is authorized to do business in the Commonwealth of Massachusetts, has duly authorized the execution and performance of this Agreement, and such execution, delivery, and performance will not violate any material term of any of its constitutive documents.
5.3.2. Purchaser has not, and as of the Closing Purchaser shall not have (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Purchaser’s creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of Purchaser’s assets, which remains pending as of such time, (d) suffered the attachment or other judicial seizure of all, or substantially all, of Purchaser’s assets, which remains pending as of such time, (e) admitted in writing its inability to pay its debts as they come due, or (f) made an offer of settlement, extension or composition to its creditors generally.
5.3.3. Purchaser is not, and as of the Closing shall not be, a “foreign person” as defined in Section 1445 of the Code and any related regulations.
5.3.4. Purchaser is acting as principal in this transaction with authority to close the transaction. This Agreement is the valid and legally binding obligation of Purchaser.
5.3.5. Purchaser is a sophisticated investor in commercial real estate and has and will perform such due diligence of the Property and its condition (financial and otherwise) as Purchaser deems appropriate.
5.3.6. Purchaser has reviewed the Leases, Contracts, expenses and other matters relating to the Property and based upon the representations and warranties of Seller expressly contained in this Agreement and its own investigations, inspections, tests and studies, determined whether to purchase the Property and assume Seller’s rights and obligations under the Leases, Contracts and otherwise with respect to the Property.
5.3.7. Unless otherwise disclosed to Seller in writing, neither Purchaser nor any affiliate of or principal in Purchaser is other than a citizen of, or partnership, corporation or other form of legal person domesticated in the United States of America.
5.3.8. Neither Purchaser nor any principal of Purchaser who owns a 20% or greater direct or ind...
By Purchaser. Purchaser represents and warrants to Seller as of the Effective Date that:
5.2.1 Purchaser is a corporation, partnership, limited liability company, trust or other type of business organization that is duly organized, validly existing and in good standing under the laws of the state in which it was organized and Purchaser is qualified to do business in the jurisdiction in which the Property is located.
5.2.2 Purchaser has taken all requisite action and obtained all requisite consents, releases and permissions in connection with entering into this Agreement and the instruments and documents referenced herein or required under any covenant, agreement, encumbrance, law or regulation with respect to the obligations required hereunder, and no consent of any other party is required for the performance by Purchaser of its obligations hereunder.
5.2.3 This Agreement is, and all agreements, instruments and documents to be executed and delivered by Purchaser pursuant to this Agreement shall be, duly authorized, executed and delivered by Purchaser. This Agreement is, and all agreements, instruments and documents to be executed and delivered by Purchaser pursuant to this Agreement shall be, valid and legally binding upon Purchaser and enforceable in accordance with their respective terms.
5.2.4 Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby does now constitute or shall result in a breach of, or a default under, any agreement, document, instrument or other obligation to which Purchaser is a party or by which Purchaser may be bound, or any law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body, applicable to Purchaser or to the Property.
5.2.5 No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action under Federal or state bankruptcy law is pending against or, to the best of Purchaser’s knowledge, contemplated by Purchaser.
5.2.6 There are no actions, suits, claims or other proceedings (collectively, “Litigation”) pending or, to the best of Purchaser’s knowledge, contemplated or threatened against Purchaser that could affect Purchaser’s ability to perform its obligations when and as required under the terms of this Agreement.
By Purchaser. Purchaser hereby represents and warrants to, and covenants with, Custodian and Seller that, as of the date hereof and throughout the term of this Agreement:
(i) Purchaser is acquiring the Mortgage Loans for its own account only and not for any other person;
(ii) Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Mortgage Loans;
(iii) Purchaser has been furnished with all information regarding the related Mortgage Loans that it has requested from Seller;
(iv) Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; and
(v) Purchaser has the full power and authority to hold each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate all transactions contemplated by, this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, except as the enforcement thereof may be limited by applicable receivership, conservatorship or similar debtor relief laws and except that certain equitable remedies may not be available regardless of whether enforcement is sought in equity or law.
By Purchaser. Purchaser shall indemnify, defend and hold harmless the Company, its officers, managers, employees, agents, successors and assigns (the “Company Group”) from and against any and all Damages incurred in connection with, arising out of, resulting from or incident to any (i) breach of any covenant, representation, warranty or agreement or the inaccuracy of any representation made by Purchaser in or pursuant to this Agreement and (ii) Assumed Liabilities.
