Common use of Modified Closing Clause in Contracts

Modified Closing. Unless the Buyers would not be obligated to purchase the Purchased Shares by reason of the failure of any Closing Condition to be fulfilled on the Termination Date, if on the Closing Date Buyers do not purchase Company Shares from Sellers for an aggregate purchase price of at least $46,103,000, then, upon a written request to the Buyers from RiverNorth Capital delivered no later than the second (2nd) Business Day following the Termination Date, Holdings and RiverNorth Capital shall issue a joint release instruction to the Escrow Agent instructing the Escrow Agent to release the Escrow Funds to one or more accounts designated by RiverNorth Capital (such release, the “Modified Closing” and the date on which the Modified Closing occurs being referred to as the “Modified Closing Date”) and, in exchange for such Escrow Funds, Sellers shall sell, convey, assign, transfer and deliver to Holdings a number of Company Shares equal to the quotient resulting from the Modified Closing Amount (as defined below) divided by the Per Share Purchase Price. For the avoidance of doubt, the previous sentence shall not limit any rights or remedies that the parties hereto may be entitled to exercise as a result of the failure of the Closing to occur on or prior to the Termination Date. “Modified Closing Amount” shall mean the Escrow Funds less $5,000,000, which $5,000,000 shall be retained by RiverNorth. The Parties acknowledge and agree that such amount shall not constitute either a penalty or liquidated damages, and the right of RiverNorth to receive such amount, or the receipt of such amount, shall not limit or otherwise affect RiverNorth’s rights to specific performance as provided in Section 6.4 hereof.