Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the conditions set forth in this Section 4.6, any or all of which may be waived by Buyer, in writing, in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply. (a) The Seller shall have delivered to Buyer all of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2; (b) The representations and warranties of the Seller contained in this Agreement (as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall be true and correct in all material respects as of the Closing Date; (c) The Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as of the Closing Date; (d) Title to the Property shall be in a condition as contemplated by Sections 2.3, 2.4 and 5.1(e) hereof; (e) The physical condition of the Real Property shall be substantially the same on the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; and (f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., shall have successfully obtained adequate financing.
Appears in 5 contracts
Samples: Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.), Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.), Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions Precedent to Obligation of Buyer. The obligation obligations of Buyer to consummate purchase and accept the transaction hereunder shall be Purchased Assets under this Agreement are subject to the fulfillment following:
(a) the receipt by Buyer from Seller on or before the Closing Delivery Date of all the following executed documents, in each case reasonably satisfactory in form and substance to Buyer and duly executed and delivered by the parties thereto other than Buyer:
(i) this Agreement;
(ii) the Warranty Xxxx of Sale;
(iii) a delegation as to the person or persons authorized to execute and deliver each of the conditions set forth in this Section 4.6same on its behalf;
(iv) the Lease Assignment;
(v) Opinions from Buyer's counsel, any or all and from local jurisdiction counsel relative to country of which may be waived by Buyer, in writing, in its sole discretion. In the event any registration and governing law of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations documents;
(vi) original Lease Documentation;
(vii) an enforceability opinion relating to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.Lease; and
(aviii) The Seller shall have delivered to such other documents as Buyer all of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2may reasonably request;
(b) The the receipt by Buyer of a certificate from Seller stating that the representations and warranties of Seller under Section 9.1 and the Seller contained in this Agreement (as the same may be modified from time to time as set forth in Section 5.4) shall have been Lease Assignment are true and correct in all material respects on Delivery with the same force and effect as of the Effective Date and shall be true and correct in all material respects as of the Closing Date;though made on Delivery; and
(c) The Seller shall have performed and observed, the Aircraft being in all same material respects, all covenants and agreements of this Agreement to be performed and observed condition as when the previously inspected by the Seller as of the Closing DateBuyer in October 2005;
(d) Title to no Default or Event of Default shall have occurred under the Property Lease, and no Event of Loss or event that with the passage of time would result in an Event of Loss shall be in a condition as contemplated by Sections 2.3, 2.4 and 5.1(e) hereof;have occurred.
(e) The physical condition from the date of this Agreement to the Delivery Date, there shall not have occurred any change in U.S. federal income tax law, regulations, or administrative or judicial interpretations thereof, or any change in U.S. generally accepted accounting principles and related accounting rules, or there shall not have been introduced into, or enacted by the U.S. Congress any legislation, any of which would have an adverse impact on Buyer's economics of the Real Property shall be substantially the same on the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; andtransaction;
(f) Buyer’s general partnersatisfaction of the requirements set forth in the Lease, Xxxxxxx Real Estate Investment Trustincluding without limitation Section 19.07 thereof, Inc., except to the extent that the Buyer is required to take any action to satisfy any such requirement;
(g) the conditions precedent set forth in the Lease Assignment which benefit Buyer have been satisfied as determined by Buyer in its sole discretion.
(h) the Buyer shall have successfully obtained adequate financingreceived a certificate of insurance from Lessee naming the Buyer as an Additional Insured and otherwise in compliance with the Lease.
(i) the Buyer shall have reasonably determined that the location of the Aircraft at the time of Delivery shall not result in any Taxes being imposed on the sale of the Aircraft or the payment of the Purchase Price. The conditions specified in this Section 8.1 are for the sole benefit of Buyer and may be waived, only in writing, in whole or in part and with or without conditions by Buyer.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Willis Lease Finance Corp), Sale and Purchase Agreement (Willis Lease Finance Corp)
Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the conditions set forth in this Section 4.6following conditions, any or all of which may be waived by Buyer, in writing, Buyer in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.:
(a) The Seller shall have delivered to the Title Company or Buyer (as applicable) all of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those as provided for in Section 4.2;8(b) hereof.
(b) The All of the representations and warranties of the Seller contained in this Agreement (as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall be true and correct in all material respects as of the date of Closing Date;(with appropriate modifications permitted under this Agreement).
(c) The Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as of the Closing Date;date of Closing.
(d) Title Seller shall use commercially reasonable efforts (but shall not be obligated to the Property shall be compensate any tenants in a condition as contemplated by Sections 2.3, 2.4 connection therewith) to obtain and 5.1(edeliver to Buyer no later than three (3) hereof;
(e) The physical condition of the Real Property shall be substantially the same on business days prior to the Closing Date an executed estoppel letter, substantially in the form attached hereto as on EXHIBIT F, or in the Effective Dateform described or contemplated in the Lease, except for changes thereto the substance and content of which result must be consistent in all material respects with the Lease and any non-material exceptions, qualifications or modifications of any estoppel certificate shall be acceptable (the "Tenant Estoppels"), from or are attributable toall tenants (the "Tenants", individually, a "Tenant"), provided, however, that Seller is only required to deliver Tenant Estoppels from Tenants whose Leases constitute in the aggregate not less than eighty percent (80%) of the leased square footage of the Improvements, including Tenant Estoppels from the following Tenants: (i) reasonable or normal wear and tear, Vietnam Veterans of America Foundation; (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, Mindshare; and (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; and
(f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., shall have successfully obtained adequate financing.)
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Columbia Equity Trust, Inc.)
Conditions Precedent to Obligation of Buyer. The obligation obligations of Buyer to consummate pay the transaction hereunder shall be subject to Closing Payment Amount and accept the fulfillment Aircraft under this Agreement are conditioned upon the following:
(a) the receipt by Buyer on or before the Closing Date of all the following documents duly executed by the parties thereto (other than Buyer) satisfactory in form and substance to Buyer (with the documents listed in subclauses (i) through (iv) being held in escrow without being released until payment of the conditions set forth Closing Payment Amount):
(i) the Deed of Novation;
(ii) the Effective Time Notice;
(iii) the Seller Guarantee;
(i) the Lessee Guarantee;
(ii) the Xxxx of Sale;
(iii) a PDF copy of the Lease;
(iv) an Incident/Accident Clearance Statement, in this Section 4.6, any or all of which may be waived by form and substance acceptable to Buyer, from Lessee;
(v) evidence that all the conditions precedent under Schedule 2 of the Deed of Novation shall have been satisfied (except to the extent waived or deferred by the relevant party thereto) and that the transactions contemplated by the Deed of Novation will occur on the Closing Date;
(vi) Buyer shall be reasonably satisfied that the sale of the Aircraft to Buyer at the Delivery Location is exempt from Transfer Tax or that the applicable Transfer Tax is acceptable to Buyer in writingwhich case Buyer has paid or shall confirm that it shall pay any such Transfer Tax owing on the transaction in accordance with Clause 13;
(b) Seller shall have provided to Buyer (i) a copy of all relevant powers of attorney and other corporate authorizations for Seller in relation to the execution of this Agreement and the other documents it has executed in connection herewith, in its sole discretion. In the event any each case certified by an officer of Seller that each such document is a true and up to date copy of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such conditionoriginal and, as provided in the previous sentencecase of each corporate authorization, then this Agreement shall terminate that such authorization has not been varied, revoked or rescinded, and no party shall have any further obligations (ii) a copy of Seller’s constitutional documents, in each case certified by an officer of Seller that each such document is a true and up to date copy of the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.original;
(ac) The Seller shall have delivered to Buyer all (a) an incumbency certificate of the items required to be delivered to Buyer pursuant Seller signed by officers thereof as to the terms Person or Persons authorized to execute and deliver this Agreement and the other Transaction Documents on behalf of this AgreementSeller, including but not limited to, those provided for in Section 4.2;
and (b) The representations evidence satisfactory to Buyer that Seller has all necessary corporate power to enter into and warranties of perform, and has taken all necessary corporate steps to approve the Seller contained in entry into and performance of, this Agreement (as and the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall be true and correct in all material respects as of the Closing Date;
(c) The Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as of the Closing Datetransactions contemplated hereby;
(d) Title Buyer shall have received a certificate of insurance with respect to the Property shall be Aircraft that is in a condition as contemplated by Sections 2.3, 2.4 compliance with the requirements described in the Lease and 5.1(e) hereofthe Deed of Novation;
(e) The physical condition no Material Damage shall have occurred and no Total Loss, or any event or circumstance which with the giving of notice or the Real Property passage of time or both, would constitute a Total Loss shall be substantially the same have occurred;
(f) on the Closing Date Date, the Lease shall be in full force and effect and shall not have been amended, rescinded or terminated;
(g) no change shall have occurred after the date of execution and delivery of this Agreement in applicable law or regulation or in the interpretation thereof which would make it illegal for Buyer (i) to perform fully its obligations under any of the Transaction Documents, or (ii) to acquire the Aircraft; provided that if any such change has occurred, the parties shall use all reasonable cooperative endeavors to restructure the transaction contemplated by this Agreement so as to avoid the aforementioned illegality;
(h) no change shall have occurred after the date of execution and delivery of this Agreement in applicable law or regulation or in the interpretation thereof which would make it illegal for Seller (i) to perform fully its obligations under any of the Transaction Documents to which it is a party or (ii) to sell the Aircraft; provided that if any such change has occurred, the parties shall use all reasonable cooperative endeavors to restructure the transaction contemplated by this Agreement so as to avoid the aforementioned illegality;
(i) no action or proceeding shall have been instituted by any Government Entity, no governmental action shall be threatened by any Government Entity and no other judgment, order or decree shall have been issued or proposed to have been issued by any Government Entity to set aside, restrain, enjoin or prevent the execution, delivery or performance of the Transaction Documents, or the consummation of the transactions contemplated by the Transaction Documents;
(j) the representations of Seller in Clause 7.1 shall be true and accurate on the Effective Closing Date, except for changes thereto which result to the extent that such representations relate to a date prior to the Closing Date, and Buyer shall have received an officer’s certificate from or are attributable to: Seller dated the Closing Date confirming the same;
(i) reasonable or normal wear and tear, (iik) the exercise by Seller or Buyer Aircraft shall be free and clean of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayedall Liens other than Permitted Liens; and
(fl) Buyer’s general partnerthe Aircraft shall be at the Delivery Location. The conditions specified in this Clause 6.1 are for the sole benefit of Buyer and may be waived in whole or in part and with or without conditions by Buyer without prejudicing the right of Buyer to receive fulfillment of such conditions, Xxxxxxx Real Estate Investment Trustin whole or in part, Inc., shall have successfully obtained adequate financingat any time thereafter.
Appears in 1 contract
Samples: Aircraft Sale Agreement (Air T Inc)
Conditions Precedent to Obligation of Buyer. The obligation of Parent and Buyer to consummate the transaction hereunder transactions provided for in this Agreement shall be subject to the fulfillment on at or before prior to the Closing Date of all each of the following conditions set forth in this Section 4.6, (any or all of which may be waived by Buyerwaived, in writingwhole or in part, by Buyer in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.):
(a) The Seller shall have delivered to Buyer all Each of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2;
(b) The representations and warranties of the Seller contained Sellers in, or in any instrument delivered in connection with or pursuant to, this Agreement (shall, except as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall otherwise contemplated or permitted by this Agreement, be true and correct in all material respects on and as of the date of Closing Date;as if made at and as of such time. The Sellers and the Company shall have each duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by them prior to or at the Closing. Buyer shall have received from the Company and each Seller a certificate, dated the date of Closing, to the foregoing effect.
(b) Buyer shall receive from each of the Sellers a general release dated the date of Closing of all then-existing claims of every kind against the Company excluding, however, such claims, if any, as are expressly referred to or described in the Sellers' Schedule.
(c) The Seller Sellers and the Company shall have performed delivered to Buyer the minute and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as stock books of the Closing Date;Company and the resignation of all present directors and officers of the Company other than those, if any, designated by Buyer at or prior to the Closing.
(d) Title Parent and Buyer shall have received the opinion of Xxxxx, Johnson, Robinson, Xxxx & Xxxxxxxxx, P.C., counsel for Sellers and the Company, dated the date of Closing, in substantially the form of Exhibit 6.1(d) attached hereto, to the Property shall be effect that as set forth in Sections 3.1, 3.2, 3.8, 3.11, 3.15 and 3.16 (to the best of counsel's knowledge, based on counsel's review of the corporate books and records specified in counsel's opinion but without having made any independent investigation thereof as to Sections 3.1, 3.2, 3.8 and 3.11), (i) this Agreement has been duly executed and delivered by and constitutes the valid and legally binding obligation of each Seller and the Company in accordance with its terms, (ii) upon the sale of the Shares to Buyer in accordance with this Agreement, Buyer will acquire good and marketable title thereto, free and clear of all liens, claims, equities, encumbrances, restrictions, options and voting agreements of every kind (assuming, for purposes of such opinion, that Buyer is a condition as contemplated by Sections 2.3bona fide purchaser within the meaning of Article VIII of the Uniform Commercial Code) and (iii) such counsel, 2.4 without however having made any independent investigation thereof, has no reason to believe that any of the other representations and 5.1(ewarranties of each Seller in this Agreement or in the certificate of each Seller referred to in subsection 6.1(a) hereof;are untrue, incorrect or inaccurate in any material respect.
(e) The physical condition of All actions, proceedings, instruments, documents and other legal matters relating to the Real Property transactions provided for in this Agreement or incidental thereto shall be substantially reasonably satisfactory to and approved by Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to Parent and Buyer, and Sellers and the same on the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; and
(f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., Company shall have successfully obtained adequate financingfurnished to such counsel all such instruments, documents and papers as such counsel may have reasonably requested for this purpose.
Appears in 1 contract
Samples: Stock Purchase Agreement (Henry Bros. Electronics, Inc.)
Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction contemplated hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the conditions set forth in this Section 4.64.6 below, any or all of which may be waived by Buyer, in writing, Buyer in its sole and absolute discretion. In the event Buyer terminates this Agreement due to the non-satisfaction of any of such conditions, then the conditions termination provisions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 3.4 above shall apply.
(a) The Seller shall have delivered to Buyer all of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.24.2 hereof;
(b) The All of the representations and warranties of the Seller contained in this Agreement (as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall be true and correct in all material respects as of the Closing Date;date of Closing; and
(c) The Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as of the Closing Datedate of Closing;
(d) Title to the Property shall be in a condition as contemplated by Sections 2.3, 2.4 and 5.1(e) hereof;
(e) The physical condition of the Real Property Properly shall be substantially the same on the day of Closing Date as on the Effective Datedate of the execution of this Agreement, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, and loss by casualty (ii) the exercise by Seller or Buyer of any of their respective rights or obligations as permitted under this Agreement) excepted. As of the day of Closing and unless disclosed to, (iii) and waived by, Buyer as provided below, there shall be no litigation or administrative agency or other government proceeding of any acts donekind whatsoever, suffered pending or caused by threatened, that after Closing would, in Buyer's reasonable discretion, materially and adversely affect the value of the Property or the ability of Buyer to operate the Property in the manner it is currently being operated, and no proceeding shall be pending or threatened that could or would cause the change, redesignation, or other modification of the zoning classification of, or of any building or environmental code requirements applicable to, the Property, or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign portion thereof, (iv) or any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect properly adjacent to the Property. All certificates of occupancy, approvals, and permits required under local laws and regulation for the continued operation of the Property shall have been validly issued and in full force and effect;
(vie) All notices of violations or order or requirements issued by any work required to be done under government agency or pursuant toauthority, or action in any way related court on account thereof, against or incidentalaffecting the Properly at the Closing Date hereunder, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not shall be unreasonably withheld or delayedcomplied with by the Seller and the Property conveyed free thereof; and
(f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., The Title Company shall have successfully obtained adequate financingissued or irrevocably committed to issue the Title Policy.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Income Growth Partners LTD X)
Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction contemplated hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the conditions set forth in this Section 4.64.7 below, any or all of which may be waived by Buyer, in writing, Buyer in its sole and absolute discretion. In the event any Buyer terminates this Agreement, which termination shall apply to all, but not less than all, of the conditions Properties, due to the nonsatisfaction of any such conditions, then the termination provisions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition3.7 above shall apply, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then along with the provisions of Section 6.2 shall apply4.1(a) above.
(a) The Seller shall have delivered to Buyer (or to Buyer through the Escrow Agent) all of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2;4.3 hereof
(b) The All of the representations and warranties of the Seller contained in this Agreement (as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall be true and correct in all material respects as of the date of Closing Date;except as otherwise permitted herein.
(c) The Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as of the Closing Date;date of Closing.
(d) The Title Company shall have issued or is irrevocably committed to issue the Property shall be in a condition as contemplated by Sections 2.3, 2.4 and 5.1(e) hereof;Title Policies.
(e) The No later than five (5) Business Days prior to Closing, Seller shall have obtained and delivered to Buyer the Lessor Estoppels and the Required Tenant Estoppels (including Seller Estoppels, as permitted under this Agreement) substantially in the form attached hereto as Exhibit F-1 with respect to the Tenant Estoppels and substantially in the form described in Section 3.5(b) with respect to the Lessor Estoppels. Such Tenant Estoppels shall be consistent with the respective Lease, shall not reveal any material adverse default by Seller and/or Tenant, any right to offset rent by the Tenant, or any claim of the same, unless Seller confirms that it will pay such claim or credit Buyer the amount of such claim at or prior to Closing, shall not reveal any other material adverse condition, and shall be dated no earlier than sixty (60) days prior to Closing. Lessor Estoppels shall be consistent with the respective Ground Lease or Parking Lease, shall not reveal any default by any party thereto, shall be dated no earlier than forty five (45) days prior to Closing, and shall not reveal any other material adverse condition.
(f) There shall have been no material and adverse change in the physical condition of the Real Property shall be substantially Properties as described in the same on Casualty and Condemnation provisions herein, from the end of the Contingency Period through the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; and
(f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., shall have successfully obtained adequate financing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Griffin-American Healthcare REIT III, Inc.)
Conditions Precedent to Obligation of Buyer. The obligation of Parent and Buyer to consummate the transaction hereunder transactions provided for in this Agreement shall be subject to the fulfillment on at or before prior to the Closing Date of all each of the following conditions set forth in this Section 4.6, (any or all of which may be waived by Buyerwaived, in writingwhole or in part, by Buyer in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.):
(a) The Seller shall have delivered to Buyer all Each of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2;
(b) The representations and warranties of the Seller contained in, or in any instrument delivered in connection with or pursuant to, this Agreement (shall, except as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall otherwise contemplated or permitted by this Agreement, be true and correct in all material respects on and as of the date of Closing Date;as if made at and as of such time. The Seller and the Company shall have each duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by them prior to or at the Closing. Buyer shall have received from the Company and Seller a certificate, dated the date of Closing, to the foregoing effect.
(b) Buyer shall receive from the Seller a general release dated the date of Closing of all then-existing claims of every kind against the Company excluding, however, such claims, if any, as are expressly referred to or described in the Seller Schedule.
(c) The Seller and the Company shall have performed delivered to Buyer the minute and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as stock books of the Closing Date;Company and the resignation of all present directors and officers of the Company other than those, if any, designated by Buyer at or prior to the Closing.
(d) Title Parent and Buyer shall have received the opinion of Xxxxx X. Xxxxx, Esq. counsel for Seller and the Company, dated the date of Closing, in substantially the form of Exhibit 6.1(d) attached hereto, to the Property shall be effect that as set forth in Sections 3.1, 3.2, 3.8, 3.11, 3.15 and 3.16 (to the best of counsel's knowledge, based on counsel's review of the corporate books and records specified in counsel's opinion but without having made any independent investigation thereof as to Sections 3.1, 3.2, 3.8 and 3.11), (i) this Agreement has been duly executed and delivered by and constitutes the valid and legally binding obligation of Seller and the Company in accordance with its terms, (ii) upon the sale of the Shares to Buyer in accordance with this Agreement, Buyer will acquire good and marketable title thereto, free and clear of all liens, claims, equities, encumbrances, restrictions, options and voting agreements of every kind (assuming, for purposes of such opinion, that Buyer is a condition as contemplated by Sections 2.3bona fide purchaser within the meaning of Article VIII of the Uniform Commercial Code) and (iii) such counsel, 2.4 without however having made any independent investigation thereof, has no reason to believe that any of the other representations and 5.1(ewarranties of Seller in this Agreement or in the certificate of Seller referred to in subsection 6.1(a) hereof;are untrue, incorrect or inaccurate in any material respect.
(e) The physical condition of All actions, proceedings, instruments, documents and other legal matters relating to the Real Property transactions provided for in this Agreement or incidental thereto shall be substantially reasonably satisfactory to and approved by Xxxxxxx Xxxxxx & Green, P.C., counsel to Parent and Buyer, and Seller and the same on the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; and
(f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., Company shall have successfully obtained adequate financingfurnished to such counsel all such instruments, documents and papers as such counsel may have reasonably requested for this purpose.
Appears in 1 contract
Samples: Stock Purchase Agreement (Henry Bros. Electronics, Inc.)
Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the conditions set forth in this Section 4.6following conditions, any or all of which may be waived by Buyer, in writing, Buyer in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.:
(a) The Buyer shall not have terminated this Agreement, pursuant to another provision hereof.
(b) Seller shall have delivered to Buyer or deposited with Escrow Agent all of the items required to be delivered to Buyer or deposited with Escrow Agent pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2;5.2.
(bc) The Seller and all other occupants, if any, shall have vacated the Property.
(d) All of the representations and warranties of the Seller contained in this Agreement (as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall be true and correct in all material respects respects, as of the Closing Date;, subject to permitted changes in facts or circumstances pursuant to this Agreement.
(ce) The Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as of the Closing Date;
(d) Title to the Property shall be in a condition as contemplated by Sections 2.3, 2.4 and 5.1(e) hereof;
(e) The physical condition of the Real Property shall be substantially the same on the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; and.
(f) The Title Company shall be irrevocably committed to issue the Title Policy in the amount of the Purchase Price showing title to the Real Property vested in Buyer, subject only to the Permitted Exceptions, together with such endorsements as Buyer shall reasonably request.
(g) The transaction contemplated herein shall have been approved by The Regents of the University of California, provided, Buyer shall obtain such approval prior to the end of the Inspection Period, and this condition shall be deemed satisfied if Buyer fails to terminate this Agreement at the end of the Inspection Period, pursuant to Section 4.5.
(h) All other matters, if any, stated herein to be conditions to Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., obligation to consummate the transactions contemplated by this Agreement shall have successfully obtained adequate financingbeen satisfied on or before the date of Closing.
Appears in 1 contract
Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the conditions set forth in this Section 4.6, any or all of which may be waived by Buyer, in writing, in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.
(a) The Seller shall have delivered to Buyer all of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2;
(b) The representations and warranties of the Seller contained in this Agreement (as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall be true and correct in all material respects as of the Closing Date;
(c) The Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as of the Closing Date;
(d) Title to the Property shall be in a condition as contemplated by Sections 2.3, 2.4 and 5.1(e) hereof;
(e) The physical condition of the Real Property shall be substantially the same on the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; and
(f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., shall have successfully obtained adequate financing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the conditions set forth in this Section 4.6following conditions, any or all of which may be waived by Buyer, in writing, Buyer in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.:
(a) The Seller shall have delivered to Buyer all All of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2;
(b) The representations and warranties of the Seller contained in this Agreement (as the same may shall be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects (however, any representation or warranty that is already based on materiality shall be true and correct (without a dual application of materiality)) as of the Effective Closing Date (except for any representations or warranties of Seller that are expressly made as of a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such specific date), with appropriate modifications expressly permitted under this Agreement; provided that, Seller’s representations and warranties shall not be deemed inaccurate or breached (and the same shall not give rise to any right by Buyer to terminate this Agreement) due to transactions, conditions, causes, omissions or actions expressly permitted by this Agreement or consented to by Buyer. Seller shall in any event have the right to cure such breach or inaccuracy and, if necessary to allow such cure, the Closing Date;Date shall be extended for up to ten (10) days to allow such cure as long as Seller agrees to use reasonable efforts to affect such cure.
(cb) The Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as of the Closing Date;.
(c) Seller shall have complied with the obligations of Section 4.2 in all respects.
(d) Title to the Property Company shall be irrevocably committed, subject only to payment of its normal and customary premium and satisfaction of all other requirements of Title Company that are applicable to Buyer, to issue the Title Policy as required in a condition as contemplated by Sections 2.3, 2.4 and 5.1(e) hereof;Section 2.5 (without exceptions for any Disapproved Title Matters that Seller elects to use commercially reasonable efforts to cure in accordance with Section 2.3(a)).
(e) The physical condition If any estoppel certificate provided by Seller to Buyer as of the Real Property shall be substantially the same on the Closing Date as on the Effective Date, except for changes thereto which result from discloses a breach or are attributable to: other matter (i) reasonable or normal wear and tearnot disclosed by Seller prior to the end of the Inspection Period, (ii) that would cost more than $100,000 (individually or in the exercise by Seller aggregate) to cure/correct or otherwise make Buyer of any of their respective rights or obligations under this Agreement, whole and (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered that is not cured or addressed under Article 7, by Seller at its own cost (v) any work, remodeling, alterations, improvements which may be cured or repairs which is/are required addressed by Seller by providing a credit against the Purchase Price in an amount reasonably necessary to be done address the breach or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; and
(f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., shall have successfully obtained adequate financingother matter so disclosed).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Conditions Precedent to Obligation of Buyer. The Buyer's obligation of Buyer to consummate the transaction hereunder shall transactions to be performed by it in connection with the Closing is subject to the fulfillment satisfaction on or before prior to the Closing Date of all of the following conditions set forth in this Section 4.6, (any or all of which may be waived in writing by Buyer, in writing, Buyer in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.):
(a) The Seller shall have delivered to Buyer all of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2;
(b) The representations and warranties of the Seller contained Company and Sellers in this Agreement (as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall be true and correct in all material respects on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date;, except for representations and warranties that speak as of a specific date or time other than the Closing Date (which need only be true and correct as of such date or time).
(b) The covenants and agreements of Company and Sellers to be performed or complied with on or before the Closing Date in accordance with this Agreement shall have been performed and complied with in all respects.
(c) The All registrations, filings, applications, notices, consents, approvals, waivers, authorizations, qualifications, and orders to be filed, made, or obtained by Buyer, Company, or any Seller in order to consummate the transactions contemplated by this Agreement or any of the Transaction Documents and to operate the business hereof or thereof after the Closing in compliance with all Legal Requirements shall have performed and observedbeen filed, made, or obtained, in form and substance satisfactory to Buyer.
(d) There shall be no injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated hereby or imposing conditions on such consummation not otherwise provided for in this Agreement.
(e) Buyer shall have completed a due diligence investigation, satisfactory to Buyer in its sole discretion, of the legal, financial, and business affairs of Company.
(f) Sellers and Company shall have provided all material respectsSchedules required hereunder, all covenants and agreements shall have cured such Schedules or specific items in such Schedules to Buyer's reasonable satisfaction.
(g) Sellers shall have delivered to Buyer a certificate to the effect that each of the conditions specified in this Agreement is satisfied in all respects.
(h) All conditions to be performed the obligations of Buyer under the Transaction Documents shall have been satisfied, unless waived by Buyer.
(i) Sellers shall produce evidence, in a form reasonably acceptable to Buyer, of adequate insurance coverage for claims against Sellers or Company arising from events occurring prior to the Closing Date, and observed by shall maintain such insurance coverage for a period of five (5) years after the Seller Closing.
(j) Buyer shall have received from counsel to Sellers an opinion in form and substance covering matters customary to a stock transaction, addressed to Buyer, and dated as of the Closing Date;.
(dk) Title All actions to be taken by Sellers in connection with consummation of the Property shall transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in a condition as contemplated by Sections 2.3, 2.4 form and 5.1(e) hereof;substance to Buyer.
(el) The physical condition of the Real Property shall be substantially the same on the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; and
(f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., shall have successfully obtained adequate financingexecuted or delivered the items set forth in Section 6.2 hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Childrens Comprehensive Services Inc)
Conditions Precedent to Obligation of Buyer. The Subject to the terms and provisions of Section 5.4(d) and (e) hereof, the obligation of Buyer to consummate the transaction hereunder shall will be subject to the fulfillment on or before the Closing Date of all of the conditions set forth in this Section 4.6following conditions, any or all of which may be waived by Buyer, in writing, Buyer in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.:
(a) The Seller shall have delivered to Buyer all All of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2;
(b) The representations and warranties of the Seller contained in this Agreement (as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall will be true and correct in all material respects as of the Closing Date;.
(cb) The Seller shall will have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as Closing Date.
(c) Buyer will have received delivery, on or prior to Closing, of Tenant Estoppels and SNDA's from the Tenants identified on Schedule S-4.7(d) and at least 50% (as determined by gross leaseable area) of the Closing Date;remaining Tenants (such amount being referred to herein as the "Tenant Estoppel/SNDA Threshold Amount"). All Tenant Estoppels which are returned by the Tenants without change or with only changes due to the passage of time (or with typographical revisions or corrections or limited qualifications, including a qualification to the best of Tenant's knowledge except as to (i) the payment of monetary obligations, and (ii) statements that the lease or other documents attached to the Tenant Estoppel are true, complete and correct) or additions or deletions which are either in accordance with the Tenant's Lease (including use of a pre-approved tenant estoppel form attached to such Tenant's Lease) or are properly completed to the reasonable satisfaction of Buyer in accordance with the provisions of this Agreement will be deemed to be acceptable by Buyer. Notwithstanding the foregoing, it is expressly understood and agreed that a failure to deliver sufficient Tenant Estoppels and/or SNDA's to reach the Tenant Estoppel Threshold Amount will be a failure of condition only and will not be a default hereunder. Seller will deliver to Buyer copies of Tenant Estoppels and SNDA's promptly as received prior to Closing; and upon Buyer's request, Seller will deliver to Buyer copies of the Tenant Estoppel and SNDA requests submitted to Tenants.
(d) Title There must not be pending or, to the Property shall be in a condition as Knowledge of Seller, threatened, any Claim by or before any Authority, arbitrator or mediator seeking to restrain, prohibit or invalidate the transactions contemplated by Sections 2.3, 2.4 and 5.1(e) hereof;hereby.
(e) The physical condition Lender, pursuant to its right under the first paragraph of the Real Property Loan Commitment, shall not have modified the Loan Commitment based upon market reception in a manner which would have a material adverse effect on Buyer (for which purpose Buyer acknowledges that the increase in interest rate margin permitted in the Loan Commitment will not have a material adverse effect on Buyer) and has caused Buyer, pursuant to its right under the Loan Commitment, to terminate the Loan Commitment and receive a refund of its commitment fee thereunder. A failure of a condition to Buyer's obligation to close as set forth in the foregoing Sections 4.7(a) or (b) will be substantially governed exclusively by Sections 5.4(d) and (e) hereof; but if a condition to Buyer's obligation to close as set forth in the same on the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tearforegoing Sections 4.7(c), (iid) the exercise by Seller or Buyer of any of their respective rights or obligations under (e) is not satisfied, Buyer's remedy with respect thereto will be to terminate this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant subject to the terms provisions of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; and
(f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., shall have successfully obtained adequate financingSection 13.20 hereof.
Appears in 1 contract
Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction contemplated hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the conditions set forth in this Section 4.64.7, any or all of which may be waived by Buyer, in writing, Buyer in its sole and absolute discretion. In the event any Buyer terminates this Agreement, which termination shall apply to all, but not less than all, of the conditions Properties, due to the nonsatisfaction of any such conditions, then the termination provisions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 3.6 above shall apply.
(a) The Seller shall have delivered to Buyer (or to Buyer through the Title Company) all of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.24.2 hereof;
(b) The All of the representations and warranties of the Seller contained in this Agreement (as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall be true and correct in all material respects as of the Closing DateDate as if made at and as of such time (with appropriate modification as permitted under this Agreement);
(c) The Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as of the Closing Datedate of Closing;
(d) The Title Company shall have issued or is irrevocably committed to issue the Property shall be in a condition as contemplated by Sections 2.3, 2.4 and 5.1(e) hereofTitle Policies;
(e) The physical condition This Agreement and the transactions contemplated hereby shall have been approved by the Board of the Real Property Directors of Medical Properties Trust, Inc., which approval Buyer shall seek to obtain on or prior to March 19, 2008;
(f) Except with respect to any condemnation or eminent domain matters, which shall be substantially governed by Article VII hereof, there shall not have been instituted by any creditor of Seller, any governmental or quasi-government authority or any other third party, any suit, action or proceeding which would materially and adversely affect the same Properties or which would prevent Seller from consummating the transactions contemplated by this Agreement;
(g) The Board of Directors of Seller shall have approved the transactions contemplated by this Agreement on or before the Closing Date as on date that is the Effective Date, except for changes thereto which result from or are attributable to: later of (i) reasonable or normal wear seven (7) days after the expiration of the Contingency Period, and tear, (ii) March 26, 2008, the exercise failure of which shall give rise to Buyer’s right to terminate this Agreement;
(h) Seller shall have obtained all approvals and consents necessary for Seller’s transfer or sale of the Properties as contemplated by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/and such estoppel certificates as are required to be done obtained under this Agreement; provided, however, that failure to obtain any consent described in Section 11.5(c) or furnished pursuant Section 12.5(c) hereof (i) shall result only in Buyer’s right to refrain from consummating the terms acquisition of any Lease and/or the specific Property for which is/are done in response to such consent is not obtained until such time as such consent is obtained, and (ii) shall not affect or delay the Closing of the other Properties;
(i) All Pre-Emptive Rights Holders (as a result defined below) shall have either waived or exercised their Pre-Emptive Rights (as defined below); provided, however, that failure of an emergency situation with respect to the Property, (vi) any work required this condition to be done under satisfied (i) shall result only in Buyer’s right to refrain from consummating the acquisition of the specific Pre-Emptive Right Property or pursuant toPre-Emptive Right Properties for which the applicable Pre-Emptive Rights have not been waived or exercised, and (ii) shall not affect or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayeddelay the Closing of the other Properties; and
(fj) Buyer’s general partnerWith respect to the Ground Lease Properties, Xxxxxxx Real Estate Investment Trust, Inc., Seller shall have successfully obtained adequate financingall consents required in connection with the assignment of Seller’s right, title and interest under the Ground Leases.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Medical Properties Trust Inc)
Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction hereunder shall transactions to be performed by it in connection with the Closing is subject to the fulfillment on satisfaction or before the Closing Date of all waiver of the conditions set forth in this Section 4.6, any or all of which may be waived by Buyer, in writing, in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.following conditions:
(a) The Seller shall have delivered to Buyer all of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2;
(b) The representations and warranties of the Seller Company and Sellers contained in this Agreement (as the same may which are Fundamental Representations shall be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects on and as of the Effective Date Closing Date, except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of that date), and (ii) all of the other representations and warranties of Sellers and the Company set forth in Article 2 and Article 3 that are not qualified by “materiality” or “Material Adverse Effect” shall be true and correct in all material respects on and as of the Closing Date, except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of that date) and the representations and warranties that are qualified by “materiality” or “Material Adverse Effect” shall be true and correct in all respects on and as of the Closing Date, except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of that date);
(b) Sellers and the Company shall have performed and complied with all of their respective covenants and conditions required to be performed prior to the Closing hereunder in all material respects through and including the Closing Date;
(c) no result, occurrence, fact, change, event or effect shall have occurred which has had, or would reasonably be expected to have, a Material Adverse Effect;
(d) no Proceeding shall be pending or threatened before any Governmental Entity wherein an unfavorable Order could reasonably be expected to prevent consummation of any of the transactions contemplated hereby; provided, however, this condition may not be invoked by Buyer if any such Proceeding was initiated by or at the direction of Buyer;
(e) the Parties shall have received all of the consents, approvals, authorizations, clearances, waivers or Permits of any Governmental Entity or Third Party (in a form reasonably satisfactory to Buyer) set forth in Schedule 6.1(e) hereto;
(f) as of the Closing Date, (A) each of the Key Employees shall remain employed by the Company and shall not have provided to the Company, or received written notice from the Company, of an intention to terminate his or her employment and (B) such Key Employees’ respective Employment Agreements shall be in full force and effect at Closing;
(g) except for Indebtedness that is in the form of accounts payable, trade payables or customer deposit balances, with respect to all Closing Indebtedness of the Company, Buyer shall have received payoff letters and UCC-3 termination statements from the applicable creditors (in form reasonably acceptable to Buyer) (i) setting forth all amounts (including principal and accrued but unpaid interest) necessary to repay in full any such amounts through the Closing, (ii) providing that, upon payment in full of such amounts, all obligations owed to such holder with respect to such amounts are satisfied and released in their entirety, and (iii) providing that upon payment in full of such amounts, all Liens and other collateral securing such amounts are terminated and released;
(h) Buyer shall have received the following agreements and documents:
(i) a certificate duly executed by the Secretary (or equivalent officer) of the Company certifying that attached thereto are (A) true, complete and correct copies of the articles of incorporation, certified by the Secretary of State of the State of Florida as of a date no earlier than the date that is ten (10) Business Days prior to the Closing Date, and the bylaws of the Company, (B) resolutions or written consents of the Company’s board of directors and stockholders authorizing the execution, delivery and performance of this Agreement, the other Transaction Documents, and the transactions contemplated hereby and thereby, which resolutions or consents have not been modified, rescinded or revoked and (C) incumbency and signatures of the statutory officers of the Company who shall have executed this Agreement and the Transaction Documents to which the Company is a party;
(ii) a certificate executed by the Company stating that the conditions set forth in this Section 6.1(a), (b) and (c) have been duly satisfied;
(iii) written resignations of all directors, managers and statutory officers of the Company listed on Schedule 6.1(h)(iii) hereto, in each case effective as of the Closing Date;
(civ) The Seller shall have performed good standing certificates with respect to the Company from the state of the Company’s formation and observedeach state where the Company is qualified to conduct business (which jurisdictions are set forth on Schedule 6.1(h)(iv)), in all material respectseach case, all covenants and agreements of this Agreement dated within ten (10) Business Days prior to be performed and observed by the Seller as of the Closing Date;
(dv) Title the certificates representing the Acquired Shares, endorsed in blank or with stock powers duly executed to the Property shall be in a condition as contemplated by Sections 2.3, 2.4 and 5.1(e) hereoftransfer such Acquired Shares to Buyer;
(evi) The physical condition the original organizational records, minute books and governance records of the Real Property shall be substantially the same on the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or Company;
(vii) any workfor each Seller a properly executed (A) IRS Form W-9 and (B) statement, remodelingdated as of the Closing Date, alterations, improvements or repairs in form and substance reasonably acceptable to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayedconforming to the requirements of Treasury Regulation Section 1.1445-2(b)(2); and
(fviii) Buyer’s general partnerevidence that the actions required by Section 5.7 have occurred. Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing, Xxxxxxx Real Estate Investment Trust, Inc., shall have successfully obtained adequate financingor otherwise consummates the Closing.
Appears in 1 contract
Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction hereunder shall be Transaction is further subject to the fulfillment satisfaction or waiver, in writing, on or before prior to the Closing Date of all the following conditions:
(a) the representations and warranties of the conditions Seller set forth in this Section 4.6, Agreement (and in any or all of which may be waived certificates delivered by Buyer, in writing, in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.
(a) The Seller shall have delivered to Buyer all of the items required to be delivered to Buyer pursuant to the terms of this Agreement), including but not limited to, those provided for in Section 4.2;
(b) The representations disregarding all qualifications and warranties of the Seller exceptions contained in this Agreement (as the same may or in such certificates) relating to materiality or Material Adverse Effect, shall be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective date hereof and as of the Closing Date with the same force and effect as if made on and as of the Closing Date (or, if given as of a particular date, only as of such particular date), except in all cases where the failure of such representations and warranties to be so true and correct, taken as a whole, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided, however, that the Fundamental Seller Representations shall be true and correct in all material respects (or in the case of any Fundamental Seller Representation that is qualified by, or subject to an exception for, materiality or Material Adverse Effect, in all respects) as of the applicable dates referred to above; and, at the Closing, Buyer shall have received a certificate signed by an authorized executive officer of Seller, dated as of the Closing Date, to the foregoing effect;
(b) Seller shall have performed in all respects its agreements and covenants under Section 5.8(a) and Section 5.8(b), and Seller shall have performed and complied in all material respects with all of its other agreements and covenants required by this Agreement to be performed or complied with by Seller at or prior to the Closing; and, at the Closing, Buyer shall have received a certificate signed by an authorized executive officer of Seller, dated as of the Closing Date, to the foregoing effect;
(c) The Seller No Action brought by any Governmental Authority shall have performed and observedbe pending that seeks to restrain, in all material respects, all covenants and agreements of this Agreement to be performed and observed by enjoin or otherwise prohibit the Seller as consummation of the Closing Date;Transaction, and no other Action brought by any Person (other than an Action brought by Buyer or any Affiliate thereof) shall be pending that would be reasonably expected to result in a Governmental Authority of competent jurisdiction issuing an order restraining, enjoining or otherwise prohibiting the consummation of the Transaction.
(d) Title to the Property Since September 30, 2011, there shall be in a condition as contemplated by Sections 2.3, 2.4 and 5.1(e) hereofnot have been any Material Adverse Effect;
(e) The physical condition of the Real Property Seller shall be substantially the same on the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered have delivered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant delivered to Buyer the terms of any Lease and/or which is/are done closing deliveries as provided in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayedSection 2.2; and
(f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., Buyer shall have successfully obtained adequate financingbeen issued a registration number by the Directorate of Defense Trade Controls of the United States Department of State (the “DDTC”) with respect to its registration with the DDTC as a manufacturer and exporter of defense articles, technical data and defense services as defined in the United States Munitions List (Part 121 of the International Traffic in Arms Regulations).
Appears in 1 contract
Samples: Asset Purchase Agreement (Ciber Inc)
Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction hereunder shall be Transaction is further subject to the fulfillment satisfaction or waiver, in writing, on or before prior to the Closing Date of all the following conditions:
(a) the representations and warranties of the conditions Seller set forth in this Section 4.6, Agreement (and in any or all of which may be waived certificates delivered by Buyer, in writing, in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.
(a) The Seller shall have delivered to Buyer all of the items required to be delivered to Buyer pursuant to the terms of this Agreement), including but not limited todisregarding all materiality or Material Adverse Effect qualifications and exceptions to statements, those provided for in Section 4.2;
(b) The representations and warranties of the Seller phrases or concepts contained in this Agreement (as the same may or in such certificates), shall be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective date hereof and as of the Closing Date with the same force and effect as if made on and as of the Closing Date (or, if given as of a particular date, only as of such particular date), except (x) in all cases where the failure of such representations and warranties to be so true and correct, taken as a whole, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided, however, that (y) the Fundamental Seller Representations shall be true and correct in all material respects (or in the case of any Fundamental Seller Representation that is qualified by, or subject to an exception for, materiality or Material Adverse Effect, in all respects) as of the applicable dates referred to above (without regard to the exception reflected in Section 8.2(a)(x) above); and, at the Closing, Buyer shall have received a certificate signed by an authorized executive officer of Seller, dated as of the Closing Date, to the foregoing effect;
(b) Seller shall have performed in all respects its agreements and covenants under Section 5.6(a) and Section 5.6(b), and Seller shall have performed and complied in all material respects with all of its other agreements and covenants required by this Agreement to be performed or complied with by Seller at or prior to the Closing; and, at the Closing, Buyer shall have received a certificate signed by an authorized executive officer of Seller, dated as of the Closing Date, to the foregoing effect;
(c) The Seller No Action brought by any Governmental Authority shall have performed be pending that seeks to restrain, enjoin or otherwise prohibit the consummation of the Transaction, and observedno other Action brought by any Person (other than an Action brought by Buyer or any Affiliate thereof) shall be pending that would be reasonably expected to result in a Governmental Authority of competent jurisdiction issuing an order restraining, in all material respectsenjoining or otherwise prohibiting the consummation of the Transaction;
(i) All of the Existing Customers as of the date hereof, all covenants except those Existing Customers whose Customer Contracts are up for renewal between the date hereof and agreements of this Agreement the Closing Date, shall continue to be performed current Existing Customers at and observed by the Seller as of the Closing Date;
(d) Title to the Property , and shall be reflected as such on any amendment to Schedule 1.1(c)(i) in a condition as contemplated by Sections 2.3, 2.4 accordance with Section 2.3(g) and 5.1(e(ii) hereof;
(e) The physical condition of Seller shall have renewed those contracts for the Real Property shall be substantially Existing Customers whose Customer Contracts are up for renewal between the same on date hereof and the Closing Date as listed on the Effective Date, except for changes thereto which result from or are attributable to: Schedule 8.2(d).
(i) reasonable or normal wear and tearAll of the Key Employees shall continue to be Business Employees as of the Closing, (ii) a number of employees equal to Eighty percent (80%) of the exercise by Seller or Buyer Business Employees indicated in Schedule 8.2(e)(ii) as of any the date hereof shall be Business Employees as of their respective rights or obligations under this Agreementthe Closing, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereofa number of employees equal to Eighty percent (80%) of the Business Employees indicated in Schedule 8.2(e)(iii) as of the date hereof shall be Business Employees as of the Closing, (iv) a number equal to Eighty percent (80%) of the AMS Employees as of the date hereof shall (A) be AMS Employees as of the Closing to the extent they are not located in the United States or (B) accept offers of employment as of Closing with Buyer to the extent they are located in the United States; provided that, for purposes of clause (iv)(B), any matter covered such AMS Employee to whom Buyer chooses not to offer employment pursuant to Section 5.7(a) shall be counted as though he or addressed under Article 7she accepted an offer of employment with Buyer for purposes of the closing condition set forth in this Section 8.2(e).
(f) Seller shall have (i) delivered to Buyer the Subsequent Monthly Income Statement and Balance Sheet from (A) the month that is two (2) months prior to the Closing Date if the Closing Date is within the first seventeen (17) calendar days of the month, or (B) the month that is one (1) month prior to the Closing Date if the Closing Date is after the first seventeen (17) calendar days of the month, (ve.g., if the Closing Date is October 3, 2012, Seller shall deliver such required financial statements from the month ending August 31, 2012; if the Closing Date is October 18, 2012, Seller shall deliver such required financial statements from the month ending September 30, 2012) (such Subsequent Monthly Income Statement and Balance Sheet delivered pursuant to (i)(A) or (B), the “Closing Financial Statements”), and (ii) provided Buyer at Closing with a certificate signed by an authorized executive officer of Seller that (A) the average of the monthly services revenue of the ITO Business reflected in the statements of income contained in each of the Subsequent Monthly Financial Statements, as compared to the monthly average services revenue reflected in the statement of income for the three months ended June 30, 2012, did not decrease by 10% or more, (B) the average of the monthly EBITDA of the ITO Business reflected in the statements of income contained in each of the Subsequent Monthly Financial Statements, as compared to the average monthly EBITDA for the three months ended June 30, 2012, did not decrease by 15% or more and (C) the Closing Financial Statements do not reflect any workmaterial Liabilities other than Liabilities incurred in the Ordinary Course of Business and Liabilities reflected in the Applicable Balance Sheet; provided that, remodelingthe Buyer and Seller acknowledge and agree that the foregoing clause (ii) shall not be deemed, alterations, improvements construed or repairs which is/are required otherwise interpreted to be done a guarantee of results, performance or furnished pursuant achievements of the ITO Business or the success or profitability of the ITO Business. For the purposes of (B) above, EBITDA shall exclude any costs related to implementing this Transaction, including any retention and severance costs.
(g) The Selling Subsidiaries shall have, concurrently with the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to Closing, consummated the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayedtransactions contemplated by the Selling Subsidiary Acquisition Agreements; and
(fh) Buyer’s general partnerSince the date of this Agreement, Xxxxxxx Real Estate Investment Trustthere shall not have been any Material Adverse Effect, Inc., and Buyer shall have successfully obtained adequate financingreceived a certificate signed by an authorized executive officer of Seller, dated as of the Closing Date, to the foregoing effect; and
(i) Seller shall have delivered or caused to be delivered to Buyer the closing deliveries as provided in Section 2.2.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ciber Inc)
Conditions Precedent to Obligation of Buyer. The obligation of Parent and Buyer to consummate the transaction hereunder transactions provided for in this Agreement shall be subject to the fulfillment on at or before prior to the Closing Date of all each of the following conditions set forth in this Section 4.6, (any or all of which may be waived by Buyerwaived, in writingwhole or in part, by Buyer in its sole discretion. In the event any of the conditions set forth in this Section 4.6 are not satisfied on or before Closing and Buyer does not waive such condition, as provided in the previous sentence, then this Agreement shall terminate and no party shall have any further obligations to the other parties. In the event that the failure of a condition is due to a default by Seller, then the provisions of Section 6.2 shall apply.):
(a) The Seller shall have delivered to Buyer all Each of the items required to be delivered to Buyer pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2;
(b) The representations and warranties of the Seller contained Sellers in, or in any instrument delivered in connection with or pursuant to, this Agreement (shall, except as the same may be modified from time to time as set forth in Section 5.4) shall have been true and correct in all material respects as of the Effective Date and shall otherwise contemplated or permitted by this Agreement, be true and correct in all material respects on and as of the date of Closing Date;as if made at and as of such time. The Sellers and the Company shall have each duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by them prior to or at the Closing. Buyer shall have received from the Company and each Seller a certificate, dated the date of Closing, to the foregoing effect.
(b) Buyer shall receive from each of the Sellers a general release dated the date of Closing of all then existing claims of every kind against the Company excluding, however, such claims, if any, as are expressly referred to or described in the Sellers' Schedule.
(c) The Seller Sellers and the Company shall have performed delivered to Buyer the minute and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by the Seller as stock books of the Closing Date;Company and the resignation of all present directors and officers of the Company other than those, if any, designated by Buyer at or prior to the Closing.
(d) Title Parent and Buyer shall have received the opinion of The Law Offices of Xxxxxxx X. Xxxxxxx, counsel for Sellers and the Company, dated the date of Closing, in substantially the form of Exhibit 6.01(d) attached hereto, to the Property shall be effect that as set forth in Sections 3.01, 3.02, 3.08, 3.11, 3.15 and 3.16 (to the best of counsel's knowledge, based on counsel's review of the corporate books and records but without having made any independent investigation thereof as to Sections 3.01 and 3.09), (i) this Agreement has been duly executed and delivered by and constitutes the valid and legally binding obligation of each Seller and the Company in accordance with its terms, (ii) upon the sale of the Shares to Buyer in accordance with this Agreement, Buyer will acquire good and marketable title thereto, free and clear of all liens, claims, equities, encumbrances, restrictions, options and voting agreements of every kind (assuming, for purposes of such opinion, that Buyer is a condition as contemplated by Sections 2.3bona fide purchaser within the meaning of Article VIII of the Uniform Commercial Code) and (iii) such counsel, 2.4 without however having made any independent investigation thereof, has no reason to believe that any of the other representations and 5.1(ewarranties of each Seller in this Agreement or in the certificate of each Seller referred to in subsection 6.01(a) hereof;are untrue, incorrect or inaccurate in any material respect.
(e) The physical condition of All actions, proceedings, instruments, documents and other legal matters relating to the Real Property transactions provided for in this Agreement or incidental thereto shall be substantially reasonably satisfactory to and approved by Xxxxxxx Xxxxx Xxxxxxx Xxxxx & Xxxxxx LLP, counsel to Parent and Buyer, and Sellers and the same on the Closing Date as on the Effective Date, except for changes thereto which result from or are attributable to: (i) reasonable or normal wear and tear, (ii) the exercise by Seller or Buyer of any of their respective rights or obligations under this Agreement, (iii) any acts done, suffered or caused by Buyer or any affiliate, contractor, officer, director, member, manager, employee, agent, representative, successor or assign thereof, (iv) any matter covered or addressed under Article 7, (v) any work, remodeling, alterations, improvements or repairs which is/are required to be done or furnished pursuant to the terms of any Lease and/or which is/are done in response to or as a result of an emergency situation with respect to the Property, (vi) any work required to be done under or pursuant to, or in any way related or incidental, to any Contract, and/or (vii) any work, remodeling, alterations, improvements or repairs to which Buyer has consented in writing, which consent may not be unreasonably withheld or delayed; and
(f) Buyer’s general partner, Xxxxxxx Real Estate Investment Trust, Inc., Company shall have successfully obtained adequate financingfurnished to such counsel all such instruments, documents and papers as such counsel may have reasonably requested for this purpose.
Appears in 1 contract
Samples: Stock Purchase Agreement (Diversified Security Solutions Inc)
