Seller’s Conditions Notwithstanding any other provision of this Agreement, the obligation of Seller to consummate the Transactions shall be subject to and conditioned upon the following:
(i) Buyer’s representations and warranties being true and correct in all material respects as of the Closing and Buyer shall have delivered all documents required to be delivered by Buyer pursuant to Paragraph 5(b) below.
(ii) The satisfaction of the [REDACTED] Waiver Condition. In the event the [REDACTED] Waiver Condition is not satisfied at or prior to Closing, then Seller may elect to either (a) terminate this Agreement with respect to the Commerce Property (but not the other Properties), in which event the Purchase Price shall be reduced by the Allocated Purchase Price for the Commerce Property, neither party shall have any further liability or obligation under this Agreement with respect to the Commerce Property (except for the provisions of this Agreement which recite that they survive termination), and the Closing shall proceed with respect to all other Properties, or (b) elect to continue this Agreement in full force and effect with respect to the Commerce Property. If any condition to Seller’s obligation to proceed with the Closing hereunder has not been satisfied as of the Closing Date or other applicable date (other than the condition to Closing set forth in Paragraph 3(g)(ii) for which Seller’s rights for such failure of the condition to Closing are set forth therein), Seller shall have the right to (i) nevertheless proceed to Closing, notwithstanding the non-satisfaction of such condition, in which event Seller shall be conclusively deemed to have waived any such condition, or (ii) terminate this Agreement upon written notice to Buyer prior to Closing, in which case the provisions of Paragraph 3(f) shall apply.
Purchaser’s Conditions The obligation of the Purchaser to complete the Transaction will be subject to the satisfaction of, or compliance with, at or before the Closing Date, of the conditions precedent set forth below. The Closing of the Transaction will be deemed to mean a waiver of all conditions to Closing. These conditions precedent are for the benefit of the Purchaser and may be waived by the Purchaser in its discretion:
(a) the Purchaser will have reviewed and approved of all materials in the possession and control of the Target and the Target Shareholders which are germane to the Purchaser’s decision to proceed with the Transaction;
(b) the Purchaser and its solicitors will be reasonably satisfied that the due diligence, analysis and other customary examinations that they have performed regarding the financial position and the business of the Target are consistent, in all material respects, with the representations and warranties of the Target and the Target Shareholders set forth in this Agreement;
(c) the Purchaser and its accountants shall have received, and had a reasonable opportunity to review, a copy of the Target Financial Statements from the Target and will be reasonably satisfied with the content of the Target Financial Statements;
(d) the Target will have provided the Purchaser with a legal opinion of its counsel, in a form reasonably satisfactory to the Purchaser’s Solicitors;
(e) the title report with respect to the Property, is in form and substance satisfactory to the Purchaser, in its sole discretion;
(f) the Technical Report will have been completed and delivered to the Purchaser, in form and substance satisfactory to the Purchaser and its solicitors;
(g) all consents, renunciations, authorizations or approvals of third parties, which, in the Purchaser’s reasonable opinion must be obtained prior to the Closing in order to give effect to the purchase of the Target Shares and the other transactions contemplated herein, must be obtained to the Purchaser’s satisfaction or in accordance with the relevant agreements, covenants or applicable law;
(h) the Target will have obtained the consent of any parties from whom consent to the Transaction is required;
(i) the Target and the Target Shareholders will have performed and complied with all obligations, covenants and agreements of the Target and the Target Shareholders set out in this Agreement and the representations and warranties of the Target and each of the Target Shareholders set forth in this Agreement will be true, correct and complete in all material respects as of the Closing Date and with the same effect as if made at and as of the Closing Date and the Purchaser will have received:
(i) from the Target, a certificate executed by an officer of the Target certifying that all obligations, covenants and agreements of the Target contained in this Agreement have been performed and complied with and that the representations and warranties of the Target set forth in this Agreement are true and correct in all material respects as at the Closing Date; and
(ii) from each Target Shareholder, a completed and executed Non-US Certificate;
(j) on the Closing Date, the Target’s total Liabilities, determined in accordance with GAAP, net of cash, shall not exceed $5,000, save for the payments as required under the Option Agreement;
(k) no Material Adverse Change will have occurred with respect to the Business of the Target or the Target Shares;
(l) this Agreement, the Transaction Documents and all other documents necessary or reasonably required to consummate the Transaction, all in form and substance reasonably satisfactory to the Purchaser, will have been executed and delivered to the Purchaser;
(m) no claim will have been asserted or made that any Person (other than the Purchaser, the Target or the Target Shareholders) is the holder or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any of the Target Shares, or any other voting, equity, or ownership interest in, the Target or (other than the Target Shareholders) is entitled to all or any portion of the Consideration Shares;
(n) no Order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any Governmental Body which prohibits, restrains, enjoins or restricts the consummation of the Transaction;
(o) approval of the board of directors of the Purchaser and the Target will have been obtained;
(p) the Assignment Shares will have been cancelled and returned to treasury of the Purchaser in accordance with Section 10.6;
(q) the Target Shares will have been delivered in accordance with Section 6.2; and
(r) the Purchaser will have received from the Target, the following closing documentation:
(i) a certified copy of resolutions of the directors of the Target authorizing the transfer of the Target Shares from the Target Shareholders to the Purchaser, the registration of the Target Shares into the name of the Purchaser and the issue of share certificates representing the Target Shares from the Target Shareholders registered in the name of the Purchaser;
(ii) a certified copy of the central securities register of the Target showing the Purchaser as the registered owner of the Target Shares from the Target Shareholders;
(iii) all such instruments of transfer, duly executed, which in the opinion of the Purchaser acting reasonably are necessary to effect and evidence the transfer of the Target Shares from the Target Shareholders to the Purchaser free and clear of all Encumbrances; and
(iv) the corporate minute books and all other books and records of the Target.
Buyer’s Conditions Buyer’s obligations to Close are conditioned upon the following (“Buyer’s Conditions”):
(i) All representations and warranties of Seller in this Agreement shall be true, correct and complete in all material respects as of the Closing Date and Seller shall have performed in all material respects all covenants and obligations required to be performed by Seller on or before the Closing Date.
(ii) Title Insurance Company is irrevocably committed to issue to Buyer an owner’s title insurance policy covering the Property with standard coverage customary in the state where the Property is located showing liability in the amount of the Purchase Price and showing insurable title to the Property vested in Buyer, subject only to the following: (a) Title Insurance Company’s standard exceptions; (b) liens for all current general and special real property taxes and assessments not yet due and payable; (c) liens of supplemental taxes, if any assessed; (d) any facts an accurate survey and/or a personal inspection of the Property may disclose; (e) the mortgage/deed of trust/deed to secure debt lien in connection with any Buyer financing; (f) any laws, regulations, ordinances (including but not limited to, zoning, building and environmental) as to the use, occupancy, subdivision or improvement of the Property adopted or imposed by any governmental body, or the effect of any non-compliance with or any violation thereof, including but not limited to, any disclosure and/or report required by ordinance; (g) rights of existing tenants and/or occupants of the Property (if any);
(h) covenants, restrictions, easements and other matters that do not materially impair the value of the Property or the use thereof; (i) non-monetary encumbrances disclosed to Buyer in writing prior to entering into this Agreement; and (j) any other matter for which Title Insurance Company agrees to provide insurance at no additional cost to Buyer.
