Common use of Conditions to Buyer’s Obligation to Close Clause in Contracts

Conditions to Buyer’s Obligation to Close. Without limitation of any other provisions hereof, Buyer’s obligation to perform the terms of this Agreement shall be subject to the satisfaction (as determined in Buyer’s sole discretion) of each of the following conditions precedent with respect to each of the Premises (hereafter “Buyer’s Conditions”) (any one or more of which may be waived in writing by Buyer in its sole and absolute discretion): i. that the Seller has cured all Title Objections as provided in Section 5.(a) hereof; ii. that Buyer has not exercised its right to terminate this Agreement under Section 2., Section 5., Section 6.(b), Section 7., Section 10., Section 12. or Section 13. hereof; iii. that each of the Seller’s representations, warranties, and covenants hereunder shall be true and correct in all material respects and not materially misleading as of the Closing Date; iv. Buyer has determined that no Hazardous or Toxic Material shall have been discharged, disposed of or released or otherwise exist in, on or under any of the Premises as of the Closing Date, which Hazardous or Toxic Material was not in existence on the last day of the Due Diligence Period; v. that the physical condition of each of the Premises, and any improvements thereon, on the Closing Date shall not have deteriorated from their condition on the last day of the Due Diligence Period, reasonable wear and tear excepted. vi. that occupancy, gross revenues and general financial condition, including expenses and revenues of each of the Premises is not adversely different from the occupancy, gross revenues and general financial condition, including expenses and revenues of each such Premises on the last day of the Due Diligence Period, or if adversely different, there is no more than a five percent (5%) variance; vii. the purchase and sale transaction contemplated by this Agreement has been consummated with respect to each of the Premises in accordance with terms and provisions hereof, except as expressly provided herein; and viii. that Seller has performed all of its obligations hereunder as provided herein. If Buyer shall determine, in its sole discretion, that any of the Buyer’s Conditions are not satisfied on the Closing Date with respect to each of the Premises (a “Buyer’s Condition Failure”), then Buyer shall have the right, in its sole discretion, and in addition to its other rights and remedies hereunder, to: (i) terminate this Agreement, in which case this Agreement shall be null and void in all respects, and thereafter neither party shall have any further rights, liabilities or obligations hereunder, except as provided in Section 14. and Section 15. hereof, each of which shall expressly survive such termination, and the Escrow Agent shall promptly return the Deposit to Buyer or (ii) waive the Buyer’s Condition Failure and proceed to closing in accordance with the terms and provisions hereof.

Conditions to Buyer’s Obligation to Close. Without limitation The obligation of any other provisions hereof, Buyer’s obligation Buyer to perform consummate the terms of this Agreement Transactions shall be subject to the satisfaction (as determined in Buyer’s sole discretion) fulfillment, at or before the Closing, of each all of the following conditions precedent with respect set forth below in this Section 7.2. Buyer may waive in writing any or all of these conditions in whole or in part without prior notice. (a) Subject to each Section 7.2(c), (i)(A) the representations and warranties of the Premises (hereafter “Buyer’s Conditions”) (any one Company contained herein that are not qualified as to Company Material Adverse Effect or more of which may be waived in writing by Buyer in its sole and absolute discretion): i. that the Seller has cured all Title Objections as provided in Section 5.(a) hereof; ii. that Buyer has not exercised its right to terminate this Agreement under Section 2., Section 5., Section 6.(b), Section 7., Section 10., Section 12. or Section 13. hereof; iii. that each of the Seller’s representations, warranties, and covenants hereunder materiality shall be true and correct in all material respects and not materially misleading as of the Closing Date; iv. Buyer has determined that no Hazardous or Toxic Material shall have been discharged, disposed of or released or otherwise exist in, on or under any of the Premises date hereof and as of the Closing Date, which Hazardous or Toxic Material was not in existence with the same effect as if such representations and warranties had been made on the last day and as of the Due Diligence Period; v. that the physical condition of each Closing Date; (B) those representations and warranties of the PremisesCompany contained herein (other than Sections 4.8, 4.9 and any improvements thereon, on the Closing Date 4.10) that are qualified as to Company Material Adverse Effect or materiality shall not have deteriorated from their condition on the last day be true and correct in all respects as of the Due Diligence Period, reasonable wear date hereof and tear excepted. vi. that occupancy, gross revenues and general financial condition, including expenses and revenues as of each of the Premises is not adversely different from the occupancy, gross revenues and general financial condition, including expenses and revenues of each such Premises on the last day of the Due Diligence Period, or if adversely different, there is no more than a five percent (5%) variance; vii. the purchase and sale transaction contemplated by this Agreement has been consummated with respect to each of the Premises in accordance with terms and provisions hereof, except as expressly provided herein; and viii. that Seller has performed all of its obligations hereunder as provided herein. If Buyer shall determine, in its sole discretion, that any of the Buyer’s Conditions are not satisfied on the Closing Date with respect to the same effect as if such representations and warranties had been made on and as of the Closing Date (except for representations and warranties which are as of a particular date, which shall be true and correct as of such date); and (C) those representations and warranties of the Company contained in Sections 4.8, 4.9 and 4.10 shall be true and correct in all respects as of the date hereof and, after excluding any event, occurrence, fact, condition change or effect in each case arising or occurring after the date hereof and described in clauses (1)-(5) of the definition of “Company Material Adverse Effect,” true and correct in all respects as of the Closing Date (except for representations in such sections which are as of a particular date, which shall be true and correct as of such date); and (ii) the Company and each of the Premises (a “Buyer’s Condition Failure”), then Buyer Company Subsidiaries shall have the right, performed in all material respects its sole discretion, obligations and complied in addition to all material respects with its other rights agreements (and remedies hereunder, to: (i) terminate this Agreement, in which case this Agreement shall be null and void in all respects, in the case of the agreement set forth in the last sentence of Section 6.18) and thereafter neither party covenants required by this Agreement to be performed or complied with on its part on or prior to the Closing Date. (b) Buyer shall have any further rights, liabilities or obligations hereunder, except received from the Company a certificate dated as provided of the Closing Date and signed by an authorized officer of the Company certifying its compliance with the conditions set forth in Section 14. and Section 15. hereof7.2(a). (c) As of the Closing Date, each (i) no Applicable Authority shall have threatened any Action under any Antitrust Law seeking to enjoin or otherwise prevent the consummation of which shall expressly survive such terminationthe Merger or the VAB Purchase or to impose a Burdensome Condition, and the Escrow Agent shall promptly return the Deposit such threat is likely to Buyer or be acted upon by such Applicable Authority, and (ii) waive there shall not be pending any Action by an Applicable Authority under any Antitrust Law seeking to enjoin or otherwise prevent the Buyer’s Condition Failure consummation of the Merger or the VAB Purchase or to impose a Burdensome Condition, which Action either is pending in the court of first impression or is on appeal; provided, however, that if such Applicable Authority shall have been unsuccessful in its Action in the court of first impression and proceed shall have taken reasonable steps to closing obtain and shall have failed to obtain a temporary (and continuing) or permanent injunction or stay pending appeal with respect to the Merger or VAB Purchase, clause (ii) of this Section 7.2(c) shall be deemed to be satisfied with respect to such Action. (d) The Company shall have consummated the LJR Sale in accordance with the terms of the LJR Sale Agreement and provisions hereofthis Agreement.

Conditions to Buyer’s Obligation to Close. Without limitation The obligation of any other provisions hereof, Buyer’s obligation Buyer to perform purchase the terms of this Agreement shall be Notes at the Closing is subject to the satisfaction (as determined in Buyer’s sole discretion) satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions precedent with respect to each of the Premises (hereafter “are for Buyer’s Conditions”) (any one or more of which 's sole benefit and may be waived in writing only by Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and absolute discretion): i. that the Seller has cured all Title Objections as provided in Section 5.(a) hereof; ii. that delivered to Buyer has not exercised its right to terminate this Agreement under Section 2and the Security Agreement at or prior to the Closing. (ii) The Company shall have executed and delivered to Buyer the Note Certificates. (iii) FSI shall have executed and delivered to Buyer the Guaranty Agreement. (iv) The Company shall have delivered to Buyer a secretary's certificate, Section 5., Section 6.(b), Section 7., Section 10., Section 12. or Section 13. hereof; iii. that each dated as of the Seller’s representationsClosing Date, warrantiescertifying as to (A) a certified copy of the resolutions of the board of directors of the Company authorizing the transactions contemplated by this Agreement and the other Transaction Documents, (B) the Certificate of Incorporation, certified as of a date within ten (10) days of the Closing Date, by the Secretary of State of Delaware, and covenants hereunder (C) the Bylaws. (v) Each of the representations and warranties of the Company shall be true and correct in all material respects as of the date when made and not materially misleading as of the Closing Date;Date as though made at that time, except for representations and warranties that speak as of a particular date, which shall be true and correct in all respects as of such date. iv. Buyer has determined that no Hazardous (vi) No statute, regulation, executive order, decree, ruling or Toxic Material injunction shall have been dischargedenacted, disposed entered, promulgated or endorsed by any court or governmental authority of or released or otherwise exist in, on or under competent jurisdiction which prohibits the consummation of any of the Premises transactions contemplated by this Agreement or the other Transaction Documents at or prior to the Closing Date. (vii) As of the Closing Date, no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, shall be pending against or affecting the Company, or any of its properties, which questions the validity of the Agreement or the transactions contemplated thereby or any action taken or to be taken pursuant thereto. As of the Closing Date, no action, suit, claim or proceeding before or by any court or governmental agency or body, domestic or foreign, shall be pending against or affecting the Company, or any of its properties, which, if adversely determined, is reasonably likely to result in a Material Adverse Effect. (viii) At the Closing, Buyer shall have received the opinion of counsel to the Company, dated as of the Closing Date, which Hazardous in the form of Exhibit D hereto. (ix) The Company shall have given, executed, delivered, filed and/or recorded all financing statements, notices, instruments, documents, agreements and other papers that may be necessary or Toxic Material was not desirable (in existence on the last day reasonable judgment of Buyer) to create, preserve, perfect or validate the security interest in all of the Due Diligence Period; v. that the physical condition of each assets of the Premises, Company granted to Buyer pursuant to the Security Agreement and any improvements thereon, on the Closing Date shall not have deteriorated from their condition on the last day of the Due Diligence Period, reasonable wear to enable Buyer to exercise and tear excepted. vi. that occupancy, gross revenues and general financial condition, including expenses and revenues of each of the Premises is not adversely different from the occupancy, gross revenues and general financial condition, including expenses and revenues of each such Premises on the last day of the Due Diligence Period, or if adversely different, there is no more than a five percent (5%) variance; vii. the purchase and sale transaction contemplated by this Agreement has been consummated enforce its rights with respect to each of the Premises in accordance with terms and provisions hereof, except as expressly provided herein; andsuch security interest. viii. that Seller has performed all of its obligations hereunder as provided herein. If Buyer (x) No Material Adverse Effect shall determine, in its sole discretion, that any of the Buyer’s Conditions are not satisfied on have occurred at or before the Closing Date with respect to each of the Premises (a “Buyer’s Condition Failure”), then Buyer shall have the right, in its sole discretion, and in addition to its other rights and remedies hereunder, to: (i) terminate this Agreement, in which case this Agreement shall be null and void in all respects, and thereafter neither party shall have any further rights, liabilities or obligations hereunder, except as provided in Section 14. and Section 15. hereof, each of which shall expressly survive such termination, and the Escrow Agent shall promptly return the Deposit to Buyer or (ii) waive the Buyer’s Condition Failure and proceed to closing in accordance with the terms and provisions hereofDate.

Conditions to Buyer’s Obligation to Close. Without limitation The obligations of any other provisions hereof, Buyer’s obligation Buyer to perform consummate the terms of this Agreement shall be Closing are subject to the satisfaction or waiver (as determined in Buyer’s sole discretionto the extent permitted by applicable Law) of each by Buyer of the following conditions precedent with respect on or before the Closing Date: (a) Accuracy of Fundamental R&W. (i) The representations and warranties of the Sellers set forth in Section 3.01(a) (Existence and Good Standing of the Selling Entities), Section 3.01(b) (Existence and Good Standing of the Company Group), Section 3.02 (Due Authorization), Section 3.04(c) (Title to HoldCo Shares, Shares and Subsidiary Shares) and Section 3.20 (No Company Material Adverse Effect) shall be true and correct in all respects as of the Closing Date as if made on and as of such date (in each case, except to the extent any such representation or warranty specifically refers to a specified date, in which case such representation or warranty shall be so true and correct on and as of such specified date). Buyer shall have received a certificate, dated as of the Closing Date, signed by an executive officer of each of the Premises Sellers to the foregoing effect. (hereafter “Buyer’s Conditions”ii) The representations and warranties of the Sellers set forth in Sections 3.04(a) and (b) (any one or more Capitalization of which may be waived in writing by Buyer in its sole and absolute discretion): i. that the Seller has cured all Title Objections as provided in Section 5.(a) hereof; ii. that Buyer has not exercised its right to terminate this Agreement under Section 2., Section 5., Section 6.(bCompany Group), Section 7.3.14 (Brokers), Section 10., 3.07 (Sufficiency of Assets) and Section 12. or Section 13. hereof; iii. that each of the Seller’s representations, warranties, and covenants hereunder 3.23 (Anti-Bribery/Sanctions Compliance) shall be true and correct in all material respects and not materially misleading (without giving effect to any materiality or Company Material Adverse Effect or similar materiality qualifications contained therein) as of the Closing Date; ivDate as if made on and as of such date (in each case, except to the extent any such representation or warranty specifically refers to a specified date, in which case such representation or warranty shall be so true and correct on and as of such specified date). Buyer has determined that no Hazardous or Toxic Material shall have been dischargedreceived a certificate, disposed of or released or otherwise exist in, on or under any of the Premises dated as of the Closing Date, which Hazardous or Toxic Material was not in existence on the last day of the Due Diligence Period; v. that the physical condition signed by an executive officer of each of the Premises, and any improvements thereon, on Sellers to the Closing Date shall not have deteriorated from their condition on the last day of the Due Diligence Period, reasonable wear and tear exceptedforegoing effect. vi. that occupancy, gross revenues and general financial condition, including expenses and revenues of each of the Premises is not adversely different from the occupancy, gross revenues and general financial condition, including expenses and revenues of each such Premises on the last day of the Due Diligence Period, or if adversely different, there is no more than a five percent (5%) variance; vii. the purchase and sale transaction contemplated by this Agreement has been consummated with respect to each of the Premises in accordance with terms and provisions hereof, except as expressly provided herein; and viii. that Seller has performed all of its obligations hereunder as provided herein. If Buyer shall determine, in its sole discretion, that any of the Buyer’s Conditions are not satisfied on the Closing Date with respect to each of the Premises (a “Buyer’s Condition Failure”), then Buyer shall have the right, in its sole discretion, and in addition to its other rights and remedies hereunder, to: (i) terminate this Agreement, in which case this Agreement shall be null and void in all respects, and thereafter neither party shall have any further rights, liabilities or obligations hereunder, except as provided in Section 14. and Section 15. hereof, each of which shall expressly survive such termination, and the Escrow Agent shall promptly return the Deposit to Buyer or (ii) waive the Buyer’s Condition Failure and proceed to closing in accordance with the terms and provisions hereof.

Conditions to Buyer’s Obligation to Close. Without limitation of any other provisions hereofSubject to Section 5.03, BuyerXxxxx’s obligation to perform consummate the terms of transactions contemplated by this Agreement shall be in connection with the Closing is subject to the satisfaction (as determined in Buyer’s sole discretion) of each or waiver of the following conditions precedent with respect to each conditions: (a) as of the Premises Closing Date, the Company having a trailing twelve (hereafter “12) months of adjusted EBITDA of at least $2,000,000, with such adjustments being consistent with those contained within the Financial Statements, and excluding reductions for prospective employment expenses for the Sellers, who will be retained by the Buyer and upon terms consistent with their respective employment agreements; (b) as of the Closing Date, the Company will deliver a Closing Working Capital amount of at least $1,230,000 as stated in Section 1.03. (c) as of the Closing Date, all member loans and receivables will be netted and satisfied by Sellers and, unless otherwise stated herein, any related party transactions will be terminated; (d) Buyer Stockholder Approval, as required by the rules of NYSE American, shall have been obtained; (e) the Information Statement shall have been mailed to Buyer’s Conditions”stockholders and at least 20 calendar days shall have elapsed from the date of completion of such mailing; (f) the completed audit of the Financial Statements by an audit firm approved by Buyer, with results that are satisfactory to Buyer; (any one or more g) Sellers shall have delivered all of which may be waived in writing by Buyer in its sole and absolute discretion): i. that the Seller has cured all Title Objections as provided closing deliverables set forth in Section 5.(a) hereof2.02; ii. (h) as of the date hereof and as of the Closing Date (in each case, except for any representation or warranty that Buyer has not exercised its right to terminate this Agreement under Section 2.is expressly made as of a specified date, Section 5., Section 6.(bin which case as of such specified date), (i) each representation and warranty contained in Section 7.3.01, Section 10.3.02, Section 12. or Section 13. hereof; iii. that each of the Seller’s representations, warranties3.04, and covenants hereunder 3.21 shall be true and correct in all respects, and (ii) each other representation or warranty set forth in Article III shall be true and correct in all respects, except where the failure of such representations and warranties referred to in this clause (ii) to be true and correct, individually or in the aggregate with such other failures, has not had, and would not reasonably be expected to have, a Material Adverse Effect; (i) the Sellers and the Company shall have performed and complied with each covenant and agreement hereunder, to the extent required to be performed prior to the Closing, in all material respects respects; (j) no Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any decree that is in effect and not materially misleading as that has the effect of making the Closing illegal or otherwise prohibiting the consummation of the Closing Date;Closing; and iv. Buyer has determined that no Hazardous or Toxic Material shall have been discharged, disposed (k) from the date of or released or otherwise exist in, on or under any of the Premises as of this Agreement until the Closing Date, which Hazardous or Toxic Material was not in existence on the last day of the Due Diligence Period; v. that the physical condition of each of the Premises, and any improvements thereon, on the Closing Date there shall not have deteriorated from their condition on the last day of the Due Diligence Period, reasonable wear occurred and tear excepted. vi. that occupancy, gross revenues and general financial condition, including expenses and revenues of each of the Premises is not adversely different from the occupancy, gross revenues and general financial condition, including expenses and revenues of each such Premises on the last day of the Due Diligence Period, or if adversely different, there is no more than a five percent (5%) variance; vii. the purchase and sale transaction contemplated by this Agreement has been consummated be continuing any Material Adverse Effect with respect to each of the Premises in accordance with terms and provisions hereof, except as expressly provided herein; and viii. that Seller has performed all of its obligations hereunder as provided herein. If Buyer shall determine, in its sole discretion, that any of the Buyer’s Conditions are not satisfied on the Closing Date with respect to each of the Premises (a “Buyer’s Condition Failure”), then Buyer shall have the right, in its sole discretion, and in addition to its other rights and remedies hereunder, to: (i) terminate this Agreement, in which case this Agreement shall be null and void in all respects, and thereafter neither party shall have any further rights, liabilities or obligations hereunder, except as provided in Section 14. and Section 15. hereof, each of which shall expressly survive such termination, and the Escrow Agent shall promptly return the Deposit to Buyer or (ii) waive the Buyer’s Condition Failure and proceed to closing in accordance with the terms and provisions hereofCompany.

Conditions to Buyer’s Obligation to Close. Without limitation The obligation of any other provisions hereof, Buyer’s obligation Buyer to perform consummate the terms of this Agreement transactions contemplated hereby shall be subject to the satisfaction (as determined in Buyer’s sole discretion) fulfillment, at or before Closing, of each all of the following conditions precedent with respect to each of the Premises (hereafter “Buyer’s Conditions”) (any one or more of which set forth below in this Section 6.2. Buyer may be waived waive in writing by Buyer any or all of these conditions in its sole whole or in part without prior notice. (a) The representations and absolute discretion): i. that the warranties of Seller has cured all Title Objections as provided contained in Section 5.(a) hereof; ii. that Buyer has not exercised its right to terminate this Agreement under Section 2., Section 5., Section 6.(b), Section 7., Section 10., Section 12. or Section 13. hereof; iii. that each of the Seller’s representations, warranties, and covenants hereunder Article 3 shall be true and correct on and as of the Closing Date with the same effect as if such representations and warranties had been made on and as of the Closing Date (except for representations and warranties which are as of a particular date, which shall be true and correct as of such date), except in either such case to the extent that the breach thereof would not reasonably be expected to have a Company Material Adverse Effect, and Seller shall have performed in all material respects its obligations and not materially misleading complied in all material respects with its agreements and covenants required by this Agreement to be performed or complied with on its part on or prior to the Closing Date. (b) Buyer shall have received from Seller a certificate dated as of the Closing Date;Date and signed by an authorized officer of Seller certifying its compliance with the conditions set forth in Section 6.2(a). iv. Buyer (c) Seller shall have obtained (i) all consents of the parties to the agreements or consents listed on Schedule 6.2(c), (ii) all waivers from such parties of any rights (including rights of termination) and remedies such parties would be entitled to exercise as a result of the transactions contemplated by this Agreement, and (iii) written confirmation from Universal Studios International BV that the counterparty to the program license agreement dated March 26, 2004 (and revised May 7, 2004) and referred to in Schedule 0.0(x) xx XXX xxx xot CMI. (d) Since December 31, 2004, there shall not have occurred any event, development or change which, individually or in the aggregate, has determined that no Hazardous or Toxic had a Company Material Adverse Effect. (e) Each of the Transaction Agreements in substantially the forms set forth in the Exhibits hereto shall have been dischargedduly executed and delivered by the parties thereto other than Buyer (save that immediately prior to Closing, disposed of or released or otherwise exist in, on or under any of the Premises Amended Program License Agreement shall be amended as of the Closing Date, which Hazardous or Toxic Material was not follows: (i) Schedule A and Schedule C thereto shall be amended and updated such that all pictures identified in existence on the last day of the Due Diligence Period; v. that the physical condition of each of the Premises, Schedule A with Windows opening between 1st January 2005 and any improvements thereon, on the Closing Date shall not be deleted from Schedule A and inserted in Schedule C and (ii) the rights and obligations of the parties thereto contained therein shall be bifurcated between two separate agreements (the first being in relation to rights in the UK and Eire and the second being in relation to rights in the rest of the world (excluding the UK and Eire and the USA)). (f) The Debt Agreement shall have deteriorated from their condition been entered into substantially on the last day basis of the Due Diligence Periodterms set forth in the Debt Commitment Letter, reasonable wear and tear excepted. vi. that occupancy, gross revenues and general financial condition, including expenses and revenues of each of the Premises is not adversely different from the occupancy, gross revenues and general financial condition, including expenses and revenues of each such Premises on the last day of the Due Diligence Period, or if adversely different, there is no more than a five percent (5%) variance; vii. the purchase and sale transaction contemplated by this Agreement has been consummated with respect to each of the Premises in accordance with terms and provisions hereof, except as expressly provided herein; and viii. that Seller has performed all of its obligations hereunder as provided herein. If Buyer shall determine, in its sole discretion, that any of be contractually entitled to drawdown and receive funds under the Buyer’s Conditions are not satisfied on the Closing Date with respect to each of the Premises (a “Buyer’s Condition Failure”), then Buyer shall have the right, in its sole discretion, and in addition to its other rights and remedies hereunder, to: (i) terminate this Debt Agreement, in which case this Agreement shall be null and void in all respects, and thereafter neither party shall have any further rights, liabilities or obligations hereunder, except as provided in Section 14. and Section 15. hereof, each of which shall expressly survive such termination, and the Escrow Agent conditions to drawdown thereunder shall promptly return have been satisfied or waived by the Deposit financial institution(s) party to Buyer or (ii) waive the Buyer’s Condition Failure and proceed to closing in accordance with the terms and provisions hereofDebt Agreement.

Conditions to Buyer’s Obligation to Close. Without limitation The obligation of any other provisions hereof, Buyer’s obligation Buyer to perform consummate the terms of this Agreement Contemplated Transactions shall be subject to the satisfaction (as determined in Buyer’s sole discretion) satisfaction, at or before the Closing, of each all of the following conditions precedent with respect to each set forth below in this Section 7.2. Buyer may waive in writing any or all of these conditions in whole or in part without prior notice. (a) (i) (A) the representations and warranties of the Premises (hereafter “Buyer’s Conditions”) (any one or more of which may be waived Company in writing by Buyer in its sole and absolute discretion): i. that the Seller has cured all Title Objections as provided in Section 5.(a) hereof; ii. that Buyer has not exercised its right to terminate this Agreement under Section 2., Section 5., Section 6.(b), Section 7., Section 10., Section 12. that are not qualified as to Company Material Adverse Effect or Section 13. hereof; iii. that each of the Seller’s representations, warranties, and covenants hereunder materiality shall be true and correct in all material respects and not materially misleading as of the Closing Date; iv. Buyer has determined that no Hazardous or Toxic Material shall have been discharged, disposed date of or released or otherwise exist in, on or under any of the Premises this Agreement and as of the Closing Date, which Hazardous or Toxic Material was not in existence with the same effect as if such representations and warranties had been made on the last day and as of the Due Diligence Period; v. that the physical condition of each of the PremisesClosing Date, and any improvements thereon, on the Closing Date shall not have deteriorated from their condition on the last day of the Due Diligence Period, reasonable wear and tear excepted. vi. that occupancy, gross revenues and general financial condition, including expenses and revenues of each of the Premises is not adversely different from the occupancy, gross revenues and general financial condition, including expenses and revenues of each such Premises on the last day of the Due Diligence Period, or if adversely different, there is no more than a five percent except (5%y) variance; vii. the purchase and sale transaction contemplated by this Agreement has been consummated with respect to each the representations and warranties set forth in the first sentence of Section 4.8 and Section 4.9, which shall be true and correct in all respects except for any failure to be so true and correct which has not had and would not reasonably be expected to cause a Company Material Adverse Effect and (z) except for representations and warranties which are as of a particular date, which shall be so true and correct in all material respects as of such date; and (B) those representations and warranties of the Premises Company in accordance with terms this Agreement that are qualified as to Company Material Adverse Effect or materiality shall be true and provisions hereof, except correct in all respects as expressly provided herein; and viii. that Seller has performed all of its obligations hereunder as provided herein. If Buyer shall determine, in its sole discretion, that any of the Buyer’s Conditions are not satisfied on date of this Agreement and as of the Closing Date with respect to each the same effect as if such representations and warranties had been made on and as of the Premises (a “Buyer’s Condition Failure”), then Buyer shall have the rightClosing Date except, in its sole discretioneach case, for representations and in addition to its other rights and remedies hereunderwarranties which are as of a particular date, to: (i) terminate this Agreement, in which case this Agreement shall be null true and void in all respectscorrect as of such date; provided, however, that the failure to disclose information that is that is expressly disclosed on the face of any SEC Report (not including risk factors, forward-looking statements or statements regarding off-balance sheet arrangements) shall not be considered for purposes of determining the accuracy of the representations and thereafter neither party shall have any further rights, liabilities or obligations hereunder, except as provided in warranties of the Company for purposes of this Section 14. and Section 15. hereof, each of which shall expressly survive such termination, and the Escrow Agent shall promptly return the Deposit to Buyer or (ii) waive the Buyer’s Condition Failure and proceed to closing in accordance with the terms and provisions hereof.7.2(a); and

Conditions to Buyer’s Obligation to Close. Without limitation The obligation of any other provisions hereof, Buyer’s obligation Buyer to perform the terms of this Agreement shall transactions contemplated to be performed on or before the Closing Date is subject to the satisfaction (as determined in satisfaction, or written waiver, by Buyer’s sole discretion) , of each of the following conditions precedent with respect to each following: (i) All of the Premises (hereafter “Buyer’s Conditions”) (any one or more of which may be waived in writing by Buyer in its sole representations and absolute discretion): i. that the Seller has cured all Title Objections as provided in Section 5.(a) hereof; ii. that Buyer has not exercised its right to terminate this Agreement under Section 2., Section 5., Section 6.(b), Section 7., Section 10., Section 12. or Section 13. hereof; iii. that each warranties of the Seller’s representationsSellers and the Company in Articles 3 and 4, warrantiesrespectively, and covenants hereunder shall must be true and correct accurate in all material respects as of the Effective Date and not materially misleading as of the Closing DateDate (except for representations and warranties that address matters only as of a specified date, which must be accurate in all material respects as of such date), except in each case to the extent any such representation or warranty contains a materiality qualification, in which case such representation or warranty must be accurate in all respects and (ii) the Sellers and the Company must have performed and complied with all of its covenants and agreements in this Agreement to be performed before or at the Closing; iv. (b) At the Closing, Sellers and/or the Company shall deliver to Buyer has determined the following: (i) a certificate of an officer of the Company, in form and substance reasonably satisfactory to Buyer, certifying that no Hazardous or Toxic Material (A) attached thereto is a true, correct and complete copy of (x) the articles of association of the Company certified as of a recent date by the Israel Companies Registrar, (y) the memorandum of incorporation of the Company and (z) the resolutions by unanimous written consent of the board of directors of the Company authorizing the Transactions and the consummation thereof and authorizing the appropriate officers of the Company to execute and deliver this Agreement and all agreements, documents and instruments executed by the Company pursuant hereto and (B) all of the conditions set forth in Section 7.1(a) have been satisfied; (ii) certificates representing all of the Shares, each of which shall be accompanied by a share transfer deed duly executed by the applicable Seller in favor of Buyer; (iii) Shares certificates in the name of the Buyer for the Shares, together with a copy of the register of shareholders of the Company, in the form of Schedule 7.1(c) certified by the Company’s Chief Executive Officer, in which the Shares acquired by Buyer shall have been dischargedregistered in the name of Buyer; (iv) a certificate of good standing for the Company from the Israel Companies Registrar; (v) consulting agreements by and between Buyer and/or the Company and each of Dxxxxx Xxxxx and Ixxx Xxxxx (collectively, disposed the “Consulting Agreements”), duly executed by Dxxxxx Xxxxx and Ixxx Xxxxx, respectively; (vi) assignments of or released or otherwise exist inany Company Intellectual Property registered to any Sellers from such Sellers to the Company, on or under duly executed by such Sellers and the Company; (vii) copies of all Required Consents; (viii) the Payoff Letters from the holders of any of Company Indebtedness; (ix) the Premises Funds Flow Memorandum, duly executed by Sellers; (x) the Escrow and Paying Agent Agreement, duly executed by the Company and the Sellers; (xi) executed resignations, effective as of the Closing Date, which Hazardous or Toxic Material was not in existence on the last day of each director and officer of the Due Diligence PeriodCompany; v. that the physical condition of (xii) executed releases from each of Ixxx Xxxxx, Dxxxxx Xxxxx and Gxx Xxxxx releasing the PremisesCompany from any and all claims such Persons may have against the Company arising prior to the Closing Date, and any improvements thereonwaiving such claims; (xiii) With respect to the Sellers, on such documents as Buyer or its counsel may reasonably request to demonstrate the Closing Date shall not have deteriorated from their condition on the last day transfer of ownership of the Due Diligence Period, reasonable wear and tear excepted.Shares; vi. (xiv) Duly completed notices to the Israeli Registrar of Companies of any change resulting from the transactions contemplated hereunder; (xv) Evidence satisfactory to the Buyer that occupancy, gross revenues and general financial condition, including expenses and revenues there will be no remaining liabilities of each amounts due of the Premises is not adversely different Company to OCS and obtaining all required approvals from the occupancy, gross revenues OCS to enable consummation of this Agreement and general financial condition, including expenses and revenues of each such Premises on the last day of the Due Diligence Period, or if adversely different, there is no more than a five percent (5%) varianceall transactions hereunder; vii. (xvi) Such evidence as the purchase Buyers or their counsel may reasonably request to demonstrate the satisfaction of any notice, consent or waiver requirements under any contract or agreement to which the Company is a party; (xvii) Documentation satisfactory to the Buyer that all banker’s fees, attorney’s fees and sale other transaction expenses payable by the Company and Sellers in connection with the transactions contemplated by this Agreement has hereby have been consummated with respect paid in full at or prior to each the Closing; (xviii) An opinion of counsel to the Premises Company, in accordance with terms form and provisions hereof, except as expressly provided hereinsubstance acceptable to the Buyer; and viii. that Seller has performed all of its obligations hereunder (a) Such other supporting documents and certificates as provided herein. If the Buyer shall determine, in its sole discretion, that any of the Buyer’s Conditions are not satisfied on the Closing Date with respect may reasonably request or as may be required pursuant to each of the Premises (a “Buyer’s Condition Failure”), then Buyer shall have the right, in its sole discretion, and in addition to its other rights and remedies hereunder, to: (i) terminate this Agreement, in which case this Agreement shall be null and void in all respects, and thereafter neither party shall have any further rights, liabilities or obligations hereunder, except as provided in Section 14. and Section 15. hereof, each of which shall expressly survive such termination, and the Escrow Agent shall promptly return the Deposit to Buyer or (ii) waive the Buyer’s Condition Failure and proceed to closing in accordance with the terms and provisions hereof.

Conditions to Buyer’s Obligation to Close. Without limitation The obligation of any other provisions hereof, Buyer’s obligation Buyer to perform consummate the terms of this Agreement transactions contemplated hereby shall be subject to the satisfaction (as determined in Buyer’s sole discretion) fulfillment, at or before Closing, of each all of the following conditions precedent with respect to each of the Premises (hereafter “Buyer’s Conditions”) (any one or more of which set forth below in this Section 7.2. Buyer may be waived waive in writing by Buyer any or all of these conditions in its sole whole or in part without prior notice. (a) The representations and absolute discretion): i. that the warranties of Seller has cured all Title Objections as provided contained in Section 5.(a) hereof; ii. that Buyer has not exercised its right to terminate this Agreement under Section 2., Section 5., Section 6.(b), Section 7., Section 10., Section 12. or Section 13. hereof; iii. that each of the Seller’s representations, warranties, and covenants hereunder Article 4 shall be true and correct on and as of the Closing Date with the same effect as if such representations and warranties had been made on and as of the Closing Date (except for representations and warranties which are as of a particular date, which shall be true and correct as of such date), except in either such case to the extent that the breach thereof would not reasonably be expected to have a material adverse effect on the Purchased Assets taken as a whole, and Seller shall have performed in all material respects its obligations and not materially misleading complied in all material respects with its agreements and covenants required by this Agreement to be performed or complied with on its part on or prior to the Closing Date. (b) Buyer shall have received from Seller a certificate dated as of the Closing Date;Date and signed by an authorized officer of Seller certifying its compliance with the conditions set forth in Section 7.2(a). iv. Buyer (c) Seller shall have obtained all consents or waivers of the parties to the agreements or consents listed on Schedule 7.2(c). (d) Since November 22, 2004, there shall not have occurred any event, development or change which, individually or in the aggregate, has determined that no Hazardous or Toxic Material had a material adverse effect on the Purchased Assets taken as a whole. (e) The Debt Agreement shall have been discharged, disposed of or released or otherwise exist in, entered into substantially on or under any the basis of the Premises as of terms set forth in the Closing Date, which Hazardous or Toxic Material was not in existence on the last day of the Due Diligence Period; v. that the physical condition of each of the PremisesDebt Commitment Letter, and any improvements thereon, on the Closing Date shall not have deteriorated from their condition on the last day of the Due Diligence Period, reasonable wear and tear excepted. vi. that occupancy, gross revenues and general financial condition, including expenses and revenues of each of the Premises is not adversely different from the occupancy, gross revenues and general financial condition, including expenses and revenues of each such Premises on the last day of the Due Diligence Period, or if adversely different, there is no more than a five percent (5%) variance; vii. the purchase and sale transaction contemplated by this Agreement has been consummated with respect to each of the Premises in accordance with terms and provisions hereof, except as expressly provided herein; and viii. that Seller has performed all of its obligations hereunder as provided herein. If Buyer shall determine, in its sole discretion, that any of be contractually entitled to drawdown and receive funds under the Buyer’s Conditions are not satisfied on the Closing Date with respect to each of the Premises (a “Buyer’s Condition Failure”), then Buyer shall have the right, in its sole discretion, and in addition to its other rights and remedies hereunder, to: (i) terminate this Debt Agreement, in which case this Agreement shall be null and void in all respects, and thereafter neither party shall have any further rights, liabilities or obligations hereunder, except as provided in Section 14. and Section 15. hereof, each of which shall expressly survive such termination, and the Escrow Agent conditions to drawdown thereunder shall promptly return have been satisfied or waived by the Deposit financial institution(s) party to Buyer or (ii) waive the Buyer’s Condition Failure and proceed to closing in accordance with the terms and provisions hereofDebt Agreement.

Conditions to Buyer’s Obligation to Close. Without limitation of any other provisions hereof, The Buyer’s obligation to perform consummate the terms purchase of this Agreement shall be the Membership Interests hereunder is subject to the satisfaction (as determined in Buyer’s sole discretion) fulfillment, prior to or at the Closing, of each of the following conditions precedent with respect to each conditions: (i) The representations and warranties of the Premises (hereafter “Buyer’s Conditions”) (any one or more of which may be waived Seller and the Company were true and correct in writing by Buyer in its sole all material respects when made and absolute discretion): i. that the Seller has cured all Title Objections as provided in Section 5.(a) hereof; ii. that Buyer has not exercised its right to terminate this Agreement under Section 2., Section 5., Section 6.(b), Section 7., Section 10., Section 12. or Section 13. hereof; iii. that each of the Seller’s representations, warranties, and covenants hereunder shall be true and correct in all material respects and not materially misleading as of at the Closing Date; iv. Buyer has determined that no Hazardous or Toxic Material shall have been discharged, disposed of or released or otherwise exist in, on or under any of the Premises as of the Closing Date, which Hazardous or Toxic Material was not in existence on the last day of the Due Diligence Period; v. that the physical condition of each of the Premises, and any improvements thereon, on though made again at the Closing Date shall not have deteriorated from their condition on (except to the last day of the Due Diligence Period, reasonable wear extent such representations and tear excepted. vi. that occupancy, gross revenues and general financial conditionwarranties expressly relate to an earlier date, including expenses and revenues of each of the Premises is not adversely different from the occupancy, gross revenues and general financial condition, including expenses and revenues of each such Premises on the last day of the Due Diligence Period, or if adversely different, there is no more than a five percent (5%) variance; vii. the purchase and sale transaction contemplated by this Agreement has been consummated with respect to each of the Premises in accordance with terms and provisions date hereof, except as expressly provided herein; and viii. that Seller has performed all of its obligations hereunder as provided herein. If Buyer shall determine, in its sole discretion, that any of the Buyer’s Conditions are not satisfied on the Closing Date with respect to each of the Premises (a “Buyer’s Condition Failure”), then Buyer shall have the right, in its sole discretion, and in addition to its other rights and remedies hereunder, to: (i) terminate this Agreement, in which case this Agreement such representations and warranties shall be null true and void correct in all respects, material respects on and thereafter neither party shall have any further rights, liabilities or obligations hereunder, except as provided in Section 14. and Section 15. hereof, each of which shall expressly survive such termination, and the Escrow Agent shall promptly return the Deposit to Buyer or earlier date); (ii) waive The Seller and the Company shall have performed and complied with all obligations and covenants required by this Agreement to be performed or complied with by it prior to or at the Closing in all material respects; (iii) To the Seller’s and the Company’s knowledge, no statute, rule, regulation, order, decree or injunction shall have been enacted, entered, promulgated or enforced by any court of governmental authority, which enjoins or prohibits the consummation of this Agreement and shall be in effect; (iv) To the Seller’s and the Company’s knowledge, there shall not be pending or threatened in writing any action, proceeding, or other application before any court or governmental authority challenging or seeking to restrain or prohibit the consummation of the transactions contemplated by this Agreement; (v) The Seller and the Company shall have obtained in a timely fashion any all consents, permits and waivers necessary or appropriate for consummation of the transactions contemplated by this Agreement; and (vi) The completion of the review of listing of additional shares notification form by Nasdaq Stock Market; and (vii) The closing deliverables set forth in Section 5.2 shall have been delivered to the Buyer’s Condition Failure and proceed to closing in accordance with the terms and provisions hereof.