Conditions of the Purchasers’ Obligations at Closing The obligations of the Purchaser to the Company under this Agreement are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:
Seller’s Obligations at Closing At Closing, Seller shall:
(a) deliver to Purchaser a duly executed Assignment and Assumption of Membership Interests (the “Assignment and Assumption of Membership Interests”) in the form attached hereto as Exhibit D, conveying the 100% of the Interests to Purchaser;
(b) deliver to Purchaser, not later than five Business Days before the Closing Date, updated Rent Rolls dated not later than 10 Business Days before the Closing Date and on the Closing Date, updated Rent Rolls dated as of the Closing Date;
(c) in the event that any representation or warranty of Seller set forth in Section 3.1 needs to be modified due to changes since the Effective Date, deliver to Purchaser a certificate (the “Seller Closing Certificate”), dated as of the Closing Date and duly executed by Seller, identifying any representation or warranty that is not, or no longer is, true and correct and explaining the state of facts giving rise to such change. In no event shall Seller be liable to Purchaser for, or be deemed to be in default hereunder by reason of, any breach of representation or warranty that results from any change that (i) occurs between the Effective Date and the Closing Date and (ii) is expressly permitted under the terms of this Agreement; provided, however, that the occurrence of a change that is not permitted hereunder shall constitute the non-fulfillment of the condition set forth in Section 4.4(b). If, despite changes or other matters described in the Seller Closing Certificate, the Closing occurs, Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all statements made in the Seller Closing Certificate;
(d) deliver to the Title Company such evidence as the Title Company may reasonably require as to the authority of the person or persons executing documents on behalf of Seller;
(e) deliver to the Title Company an owner’s affidavit duly executed by the Company, in customary form reasonably acceptable to the Title Company;
(f) deliver to Purchaser a certificate in the form attached hereto as Exhibit E duly executed by Seller and stating that Seller is not a “foreign person” as defined in the Federal Foreign Investment in Real Property Tax Act of 1980;
(g) terminate or cause the Company to terminate, effective on or before the Closing Date, all Brokerage Agreements and property management agreements, as well as any Contracts which Purchaser elects, on or prior to the Expiration of the Due Diligence Period, not to assume and deliver to Purchaser evidence of each such termination; provided, however, that if any termination fees or other penalties are incurred by the Company as a result of the termination of such Contracts, the amount of any such fees or penalties shall be credited to Seller at Closing or otherwise paid by Purchaser;
(h) deliver an executed counterpart to the Closing Statement;
(i) make available to Purchaser, to the extent not already provided, the Leases and Contracts, together with such leasing and property files and records located in the property manager’s office for the Property which relate to the continued operation, leasing and maintenance of the Property, but excluding any documents of a confidential nature;
(j) deliver to Purchaser possession and occupancy of the Property (including all keys, lock combinations, and pass keys), subject to the Permitted Exceptions, rights of Tenants and terms of the Contracts;
(k) deliver a schedule of Security Deposits currently held by Seller on behalf of the Tenants; and
(l) deliver such additional documents as shall be reasonably required to consummate the transaction contemplated by this Agreement.
Conditions to the Seller’s Obligations At the Closing, the Buyer shall deliver:
(i) certified copies of the resolutions duly adopted by the Buyer’s board of directors (or its equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby to which it is a party, and the consummation of all transactions contemplated hereby and thereby;
(ii) a certificate of an authorized officer of the Buyer in the form set forth in Exhibit E, dated as of the Closing, stating that: (i) all of the representations and warranties set forth in Article VI that are qualified as to materiality or words of similar import are true and correct in all respects, and those not so qualified are true and correct in all material respects, in each case as of the Closing (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date), and (ii) to the Buyer’s knowledge, no action or proceeding before any court or Governmental Authority is pending or threatened wherein an unfavorable judgment, decree or order which would prevent the performance of this Agreement or the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or would reasonably be expected to cause such transactions to be rescinded;
(iii) the Estimated Purchase Price as contemplated in Section 1.02 above; and
(iv) such other documents reasonably requested by the Representative for the consummation of the transactions contemplated hereby.
Conditions of the Purchaser’s Obligations The obligations of the Purchaser to purchase and pay for the Private Placement Warrants are subject to the fulfillment, on or before each Closing Date, of each of the following conditions:
Buyer's Obligations at Closing At Closing, Buyer shall:
Conditions of the Company’s Obligations at Closing The obligations of the Company to each Investor under this Agreement are subject to the fulfillment on or before the Closing of each of the following conditions by that Investor:
Conditions to Seller’s Obligations The obligations of Seller to consummate the transactions provided for hereby are subject, in the discretion of Seller, to the satisfaction, on or prior to the Closing Date, of each of the following conditions, any of which may be waived by Seller:
Purchaser’s Obligations at Closing At Closing, Purchaser shall:
(a) pay to Seller, in immediately available federal funds transferred by wire pursuant to Section 1.3, the full amount of the Purchase Price, subject to prorations and adjustments as provided herein;
(b) deliver to Seller an executed counterpart to the Assignment and Assumption of Membership Interests;
(c) in the event that any representation or warranty of Purchaser set forth in Section 3.2 needs to be modified due to changes since the Effective Date, deliver to Seller a certificate (the “Purchaser Closing Certificate”), dated as of the Closing Date and duly executed by Purchaser, identifying any representation or warranty that is not, or no longer is, true and correct and explaining the state of facts giving rise to such change. In no event shall Purchaser be liable to Seller for, or be deemed to be in default hereunder by reason of, any breach of representation or warranty that results from any change that (i) occurs between the Effective Date and the Closing Date and (ii) is expressly permitted under the terms of this Agreement; provided, however, that the occurrence of a change that is not permitted hereunder shall constitute the non-fulfillment of the condition set forth in Section 4.3(c). If, despite changes or other matters described in the Purchaser Closing Certificate, the Closing occurs, Purchaser’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all statements made in the Purchaser Closing Certificate;
(d) deliver to the Title Company such evidence as the Title Company may reasonably require as to the authority of the person or persons executing documents on behalf of Purchaser;
(e) deliver an executed counterpart to the Closing Statement; and
(f) deliver such additional documents as shall be reasonably required to consummate the transaction contemplated by this Agreement.
Conditions to Obligations of the Sellers The obligations of the Sellers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or written waiver, at or prior to the Closing, of each of the following conditions:
Conditions Precedent to the Seller’s Obligations The obligation of the Seller to consummate the transfer of the Asset as contemplated by this Agreement on the Closing Date is subject to the satisfaction (or waiver by the Seller) as of the Closing of the following conditions:
(a) Each of the representations and warranties made by the Buyer in this Agreement shall be true and correct in all material respects when made and on and as of the Closing Date as though such representations and warranties were made on and as of the Closing Date.
(b) The Buyer shall have performed or complied in all material respects with each obligation and covenant required by this Agreement to be performed or complied with by the Buyer on or before the Closing.
(c) No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect or threatened in writing as of the Closing which restrains or prohibits the transfer of the Asset or the consummation of any other transaction contemplated hereby.
(d) The Buyer shall have made (or caused to have been made) all of the deliveries required to be made by the Buyer under SECTION 7.1.
(e) The Seller shall have received evidence that the Franchise Agreement has been terminated.
(f) Simultaneously with the execution of this Agreement, the Buyer or affiliates of Buyer (collectively, “Affiliate Buyers”) are entering into the Related Agreements with other sellers that are affiliates of Seller (collectively, “Other Sellers”). Except as otherwise set forth below, it shall be a condition precedent to the Seller’s obligation to close on the sale of the Asset, that (i) the closing date under the Related Agreements shall be the same as the Closing Date under this Agreement and (ii) the closing of the Related Agreements shall take place simultaneously with the Closing hereunder (i.e., the closing in this Agreement or any Related Agreement will have occurred when all of the conditions precedent to closing set forth in the applicable agreement have been met or waived by the appropriate party, including without limitation the Title Company’s receipt of the applicable deed or assignment of lease and its unconditional and irrevocable commitment to (x) record the deed or assignment of lease; and (y) issue the Title Policy effective as of such date, notwithstanding that such deed or assignment of lease may not have been recorded). If any of the Buyer or Affiliate Buyers defaults under this Agreement or any Related Agreement, as applicable, such default shall be deemed a default by the Buyer and the Affiliate Buyers under this Agreement and all of the Related Agreements. Notwithstanding the foregoing, in the event that any of the Seller or Other Sellers is in default under this Agreement or any other Related Agreement (any such agreement being a “Defaulted Agreement”), as applicable, and the respective parties thereto fail to close under such Defaulted Agreement, then, so long as the Acquisition Threshold is met, a closing under such Defaulted Agreement shall not be a condition precedent to the Seller’s obligation to close under this Agreement or any other Related Agreement (so long as the Acquisition Threshold is met); provided, however, in the event that the Acquisition Threshold is not met, then such defaults shall constitute a default under this Agreement and all other Related Agreements and the Buyer shall have the right to terminate this Agreement (and all other Related Agreements) and the Seller shall be deemed in breach hereof whereupon the Buyer shall have the remedies set forth in SECTION 11.2(c), except that the aggregate amount of out-of-pocket costs and expenses that the Buyer will be entitled to recover from the Seller for damages under this Agreement and the other Related Agreements shall in no event exceed Three Hundred Thousand Dollars ($300,000.00) under SECTION 11.2(c). Additionally, if any of the Buyer or Affiliate Buyers elects to terminate this Agreement or any Related Agreement, as applicable, under any provision of this Agreement or such Related Agreement that expressly gives the Buyer (or an Affiliate Buyer, as applicable) the right to terminate (other than as the result of the Seller’s default for which the preceding sentence in this clause (f) shall control), then any such notice to terminate under any such agreement shall be deemed an election to terminate this Agreement and all of the Related Agreements, it being the intention of the parties that except as otherwise set forth in this clause (f), there shall be no Closing under this Agreement unless there is a closing under the Related Agreements and vice versa.
