Conditions to Obligations of Buyer and Seller The obligations of Buyer and Seller to complete the transactions contemplated by this Agreement are subject to the satisfaction at or prior to the Closing of the following conditions:
Seller’s Obligations at Closing At Closing, Seller shall:
(a) deliver to Purchaser a duly executed Assignment and Assumption of Membership Interests (the “Assignment and Assumption of Membership Interests”) in the form attached hereto as Exhibit D, conveying the 100% of the Interests to Purchaser;
(b) deliver to Purchaser, not later than five Business Days before the Closing Date, updated Rent Rolls dated not later than 10 Business Days before the Closing Date and on the Closing Date, updated Rent Rolls dated as of the Closing Date;
(c) in the event that any representation or warranty of Seller set forth in Section 3.1 needs to be modified due to changes since the Effective Date, deliver to Purchaser a certificate (the “Seller Closing Certificate”), dated as of the Closing Date and duly executed by Seller, identifying any representation or warranty that is not, or no longer is, true and correct and explaining the state of facts giving rise to such change. In no event shall Seller be liable to Purchaser for, or be deemed to be in default hereunder by reason of, any breach of representation or warranty that results from any change that (i) occurs between the Effective Date and the Closing Date and (ii) is expressly permitted under the terms of this Agreement; provided, however, that the occurrence of a change that is not permitted hereunder shall constitute the non-fulfillment of the condition set forth in Section 4.4(b). If, despite changes or other matters described in the Seller Closing Certificate, the Closing occurs, Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all statements made in the Seller Closing Certificate;
(d) deliver to the Title Company such evidence as the Title Company may reasonably require as to the authority of the person or persons executing documents on behalf of Seller;
(e) deliver to the Title Company an owner’s affidavit duly executed by the Company, in customary form reasonably acceptable to the Title Company;
(f) deliver to Purchaser a certificate in the form attached hereto as Exhibit E duly executed by Seller and stating that Seller is not a “foreign person” as defined in the Federal Foreign Investment in Real Property Tax Act of 1980;
(g) terminate or cause the Company to terminate, effective on or before the Closing Date, all Brokerage Agreements and property management agreements, as well as any Contracts which Purchaser elects, on or prior to the Expiration of the Due Diligence Period, not to assume and deliver to Purchaser evidence of each such termination; provided, however, that if any termination fees or other penalties are incurred by the Company as a result of the termination of such Contracts, the amount of any such fees or penalties shall be credited to Seller at Closing or otherwise paid by Purchaser;
(h) deliver an executed counterpart to the Closing Statement;
(i) make available to Purchaser, to the extent not already provided, the Leases and Contracts, together with such leasing and property files and records located in the property manager’s office for the Property which relate to the continued operation, leasing and maintenance of the Property, but excluding any documents of a confidential nature;
(j) deliver to Purchaser possession and occupancy of the Property (including all keys, lock combinations, and pass keys), subject to the Permitted Exceptions, rights of Tenants and terms of the Contracts;
(k) deliver a schedule of Security Deposits currently held by Seller on behalf of the Tenants; and
(l) deliver such additional documents as shall be reasonably required to consummate the transaction contemplated by this Agreement.
Conditions of the Purchasers’ Obligations at Closing The obligations of the Purchaser to the Company under this Agreement are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:
Obligations of Seller The obligations of the Seller under this Agreement shall not be affected by reason of any invalidity, illegality or irregularity of any Receivable.
Obligations of the Purchaser (a) The Purchaser shall furnish in writing to the Company such information regarding itself, the Registrable Securities or Additional Registrable Securities, as applicable, held by it and the intended method of disposition of the Registrable Securities or Additional Registrable Securities, as applicable, held by it, as shall be required by the 1933 Act to effect the registration of such Registrable Securities or Additional Registrable Securities, as applicable, and shall execute such documents in connection with such registration as the Company may reasonably request. At least ten (10) Business Days prior to the first anticipated filing date of any Registration Statement (or such shorter period as may be agreed to by the Purchaser), the Company shall notify the Purchaser of the information the Company requires from the Purchaser if the Purchaser's Registrable Securities or Additional Registrable Securities are to be included in the Registration Statement.
(b) The Purchaser, by its acceptance of the Registrable Securities and Additional Registrable Securities, if any, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of a Registration Statement hereunder, unless the Purchaser has notified the Company in writing of its election to exclude all of its Registrable Securities or Additional Registrable Securities, as applicable, from the Registration Statement.
(c) If the Purchaser determines to engage the services of an underwriter, which underwriter is reasonably acceptable to the Company, the Purchaser agrees to enter into and perform its obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the managing underwriter of such offering and take such other actions as are reasonably required in order to expedite or facilitate the dispositions of the Registrable Securities or Additional Registrable Securities, as applicable.
(d) The Purchaser agrees that, upon receipt of any notice from the Company of the happening of any event rendering a Registration Statement no longer effective or available for use by the Purchaser, the Purchaser will immediately discontinue disposition of Registrable Securities or Additional Registrable Securities pursuant to the Registration Statement covering such Registrable Securities or Additional Registrable Securities, until the Purchaser's receipt of the copies of the supplemented or amended Prospectus filed with the SEC and declared effective and, if so directed by the Company, the Purchaser shall deliver to the Company (at the expense of the Company) or destroy all copies in the Purchaser's possession of the Prospectus covering the Registrable Securities or Additional Registrable Securities, as applicable, current at the time of receipt of such notice.
(e) The Purchaser may participate in any third party underwritten registration hereunder unless it (i) agrees to sell the Registrable Securities or Additional Registrable Securities, as applicable, on the basis provided in any underwriting arrangements in usual and customary form entered into by the Purchaser, (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, and (iii) agrees to pay its pro rata share of all underwriting discounts and commissions and any expenses in excess of those payable by the Company pursuant to the terms of this Agreement.
Obligations of the Purchasers (a) Each Purchaser shall furnish in writing to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request. At least five (5) Business Days prior to the first anticipated filing date of any Registration Statement, the Company shall notify each Purchaser of the information the Company requires from such Purchaser if such Purchaser elects to have any of its Registrable Securities included in the Registration Statement. A Purchaser shall provide such information to the Company at least two (2) Business Days prior to the first anticipated filing date of such Registration Statement if such Purchaser elects to have any of its Registrable Securities included in the Registration Statement.
(b) Each Purchaser, by its acceptance of the Registrable Securities agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of a Registration Statement hereunder, unless such Purchaser has notified the Company in writing of its election to exclude all of its Registrable Securities from such Registration Statement.
(c) Each Purchaser agrees that, upon receipt of any notice from the Company of either (i) the commencement of an Allowed Delay pursuant to Section 2.1(b) or (ii) the happening of an event pursuant to Section 2.4(d) and Section 2.4(e) hereof, such Purchaser will immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities, until the Purchaser is advised by the Company that such dispositions may again be made.
Conditions Precedent to the Obligations of Seller The obligations of Seller under this Agreement are subject to the each of the following conditions being met:
Conditions Precedent to the Obligations of Sellers The obligations of Sellers to consummate the Transactions are also subject to the satisfaction at or prior to the Closing Date of each of the following conditions, unless waived by the Seller Representative in writing:
(a) Each representation and warranty of Buyer contained in this Agreement shall, if specifically qualified by materiality or Material Adverse Effect, be true and correct in all respects and, if not so qualified, be true and correct in all material respects, in each case as of the date of this Agreement and on and as of the Closing Date, as though made on and as of such date (other than those representations and warranties made as of a specific date, which shall be true and correct or true and correct in all material respects, as the case may be, as of such date).
(b) Buyer shall have performed in all material respects all of its obligations and agreements, and complied in all material respects with all covenants and conditions, contained in this Agreement shall to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to obligations and agreements that are qualified by materiality, Buyer shall have performed such obligations and agreements, as so qualified, in all respects.
(c) Buyer shall have delivered to Seller a certificate, dated the Closing Date, signed by a duly authorized officer of Buyer certifying as to (i) the fulfillment of the conditions specified in Sections 8.2(a) and (b), and (ii) the incumbency of each Person having authority to execute and deliver this Agreement and the Transaction Documents to which Buyer is party.
(d) There shall not have been any material statute, rule, regulation, order, judgment or decree proposed, enacted, promulgated, entered, issued, enforced or deemed applicable by any foreign or United States federal, state or local Governmental Authority, and there shall be no action, suit or proceeding pending or threatened, which: (i) makes or may make any Transaction Document or any of the Transactions illegal, or imposes or may impose material damages or penalties in connection therewith; or (ii) otherwise prohibits or unreasonably delays, or may prohibit or unreasonably delay the Transactions.
(e) Since the date hereof, nothing shall have occurred, and Sellers shall not have become aware of any circumstance, change or event having occurred prior to such date, which individually or in the aggregate, has had or could reasonably be expected to have, a Material Adverse Effect on the consummation of the Transactions.
(f) Since the date hereof, there shall not have been any Material Adverse Effect on Buyer, or any event, change, or effect that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Buyer.
(g) Buyer shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the Transactions.
Obligations of Both Parties Obligations of Party A:
1. Party A undertakes that the products that it provides have been authorized by the General Administration of Quality Supervision, Inspection and Quarantine of the PRC.
2. In order to enhance Party B’s reputation, Party A hereby authorizes Party B to use the Ninetowns trade name in its company name, provided, however, that Party B shall not use such trade name to engage in business activities that are not related to the business as contemplated hereunder.
3. Party A undertakes that during the term of this agreement, it will obtain Party B’s prior consent before developing other franchisees within the franchised area.
4. Party A shall provide Party B with marketing and training materials in connection with the franchised products.
5. Party A shall provide Party B with technical support services.
6. Upgrade services. Obligations of Party B:
1. Party B is responsible for distribution of Party A’s products, after-sale services and technical support in the franchised area.
2. Party B undertakes that it will comply with relevant state and industrial laws and regulations through its sales activities.
3. Party B undertakes that it will not be any third party’s franchisee for any other product that competes with Party A’s products in the franchised area during the term of this agreement.
4. Party B undertakes that the products that it sells are the official versions of Party A’s products, and Party B undertakes that it will not engage in any form of counterfeit activities.
5. Party B undertakes that it will provide users with after-sales service and technical support in accordance with Party A’s service standards and service contents.
6. Party B undertakes that it will make payments to Party A within the prescribed time limit.
7. Party B undertakes that the sales data delivered by Party B to Party A monthly, i.e. the monthly sales report, will be true and accurate.
Obligations of Buyer Effective as of Closing, Buyer shall indemnify, defend, and hold harmless Seller, its Affiliates and their respective directors, officers, managers, members, shareholders, agents, representatives and subsidiaries (“Seller Indemnified Parties”), from and against any and all Losses resulting from, relating to, arising out of or incurred in connection with any of the following:
(a) Any breach by Buyer of any of Buyer’s representations and warranties contained in this Agreement or the Transaction Documents;
(b) Any breach by Buyer of any of Buyer’s covenants, agreements or obligations contained in this Agreement or the Transaction Documents;
(c) All Assumed Liabilities;
(d) Any injury to, or death of, any person or for damage to property arising in any way from the access afforded to Buyer hereunder or the activities of Buyer in connection with its on-site inspection of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct;
(e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits;
(f) Seller’s guarantee obligations under Section 18(a) of the Cotiga South Lease and the Lease Guarantee Agreement;
(g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease and the applicable Lease Guarantee Agreement; and
(h) Until the Seller Bonds posted with respect to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related to or arising out of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after Closing.
