Common use of Conditions to Each Party’s Obligations to Effect the Mergers Clause in Contracts

Conditions to Each Party’s Obligations to Effect the Mergers. The respective obligations of the parties hereto to consummate the Mergers pursuant to the terms of this Agreement are subject to satisfaction of the following conditions precedent on or prior to the Closing Date. In the event that one or more of these conditions are not satisfied on or prior to the Closing Date, the party or parties whose obligations hereunder are subject to the satisfaction of such condition or conditions may either elect to terminate this Agreement or waive the satisfaction of such condition. The conditions are: (a) this Agreement and the Mergers shall have been approved by the holders of a majority of the shares of Target Stock of each Target REIT other than a Target REIT with respect to which this Agreement has been terminated in accordance with Section 8.2(b); (b) all necessary consents, waivers, approvals, authorizations or orders required to be obtained and the making of all filings required to be made by any of the parties for the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated thereby shall have been obtained or made, as the case may be, on or prior to (and remaining in effect at) the Closing Date; (c) the Company and each of the Target REITs shall have received, on or prior to the Closing Date, an opinion from Wilmer Cutler Pickering Hale and Dorr LLP to the effect that each Merg▇▇ ▇▇▇▇ ▇▇ ▇▇e▇▇▇▇ ▇▇▇ ▇▇▇▇▇al in▇▇▇▇ tax purposes as a reorganization within the meaning of Section 368(a) of the Code (it being agreed that if Wilmer Cutler Pickering Hale and Dorr LLP does not render such opinion, ▇▇▇▇ ▇▇▇▇▇▇i▇▇ ▇▇▇▇▇ ▇▇▇▇▇heles▇ ▇▇ satisfied if another nationally recognized law firm renders such opinion, and that the Company and the Target REITs shall use their respective reasonable best efforts to obtain the opinion required by this subsection). Each of the Company and each Target REIT agrees to provide customary representations to Wilmer Cutler Pickering Hale and Dorr LLP (or such other law firm) in ▇▇▇▇▇▇▇▇▇▇ ▇▇t▇ ▇▇▇ ▇▇▇▇▇▇▇▇ of s▇▇▇ opinion; (d) either the President and Chief Executive Officer or the Vice President and Chief Operating Officer of the Company shall have delivered to each of the Target REITs a certificate on behalf of the Company, dated as of the Closing Date, to the effect that there have been no material adverse changes in the financial condition of the Company between the date of the most recent Company Financial Statements and the Closing Date, and the President of each of the Target REITs shall have delivered to the Company a certificate on behalf of each Target REIT, each dated as of the Closing Date, to the effect that there have been no material adverse changes in the financial condition of such Target REIT between the date of the most recent Target REIT Financial Statements for such Target REIT and the Closing Date; (e) there shall have been no statute, rule, order or regulation enacted or issued by the United States or any State thereof, or by a court, that prohibits the consummation of the Mergers; (f) the representations set forth in Section 3, Section 4 and Article 4A hereof are true and complete in all material respects; provided, however, that the party whose representation was not true and correct shall have no right to not consummate the Closing as a result thereof; and (g) the Company shall have a reasonable belief that (i) the number of Target REIT Stockholders who are not Accredited Investors (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) does not exceed 35 and (ii) that each of such Target REIT Stockholders who is not an Accredited Investor, either alone or with his/her/its purchaser representative(s), has such knowledge and experience in business and financial matters that he/she/it is capable of evaluating the merits and risks of the Mergers. The conditions described in clause (b) above, may be waived by either the Company or the Target REITs, as the case may be, in whole or in part if, in the opinion of either the Company or the Target REITs, as the case may be, such waiver does not materially affect the terms of the transaction, which waiver shall not be unreasonably withheld. The conditions described in clause (f) may be waived, in whole or in part, by the party to which the representation that is not true and correct is made.

Conditions to Each Party’s Obligations to Effect the Mergers. The respective obligations of the parties hereto to consummate the Mergers pursuant to the terms of this Agreement are subject to satisfaction of the following conditions precedent on or prior to the Closing Date. In the event that one or more of these conditions are not satisfied on or prior to the Closing Date, the party or parties whose obligations hereunder are subject to the satisfaction of such condition or conditions may either elect to terminate this Agreement or waive the satisfaction of such condition. The conditions are: (a) this Agreement and the Mergers shall have been approved by the holders of a majority in interest of the shares Company Stockholders and of the Target Stock REIT Stockholders of each Target REIT other than a Target REIT with respect to which this Agreement has been terminated in accordance with Section 8.2(b); (bi) the number of Target REIT Stockholders who the Company does not reasonably believe are not Accredited Investors (as defined in Rule 501(a) of Regulation D of the Securities Act of 1933, as amended) shall not exceed 35 and (ii) each such non Accredited Investor has, either alone or with his/her/its purchase representative, such knowledge and experience in business and financial matters that he/she/it is capable of evaluating the merits of risks of the Common Stock; (c) all necessary consents, waivers, approvals, authorizations or orders required to be obtained and the making of all filings required to be made by any of the parties for the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated thereby shall have been obtained or made, as the case may be, on or prior to (and remaining in effect at) the Closing Date; (cd) there shall not have occurred any material adverse change in the overall business or prospects of any of the Company or the Target REITs or in the tax or other regulatory provisions applicable to the Company, the Target REITs or the Combined Company, and neither the Company Board nor the Target Boards of Directors shall have become aware of any facts that, in their respective reasonable judgment, have or are likely to have a material adverse effect on the Company and each the Target REITs, taken as a whole, the Mergers, or the value of the Target REITs Combined Company; (e) FSP Corp. shall have received, on or prior to the Closing Date, an opinion from Wilmer Cutler Pickering Hale and Dorr LLP to the effect that each Merg▇the Mergers should be treated fo▇ ▇▇▇▇ ▇▇ ▇▇ederal ▇▇▇▇ ▇▇▇ ▇▇▇▇▇al in▇▇▇▇ ome tax purposes as a reorganization reorganizations within the meaning of Section 368(a) of the Code (it being agreed and confirming that if Wilmer Cutler Pickering Hale and Dorr LLP does not render such opinionin all material respects, ▇▇▇▇ ▇▇▇▇▇▇i▇▇ ▇▇▇▇▇ ▇▇▇▇▇heles▇ ▇▇ satisfied if another nationally recognized law firm renders such opinionas of the Closing Date, and that the Company discussion set forth under "Material United States Federal Income Tax Considerations" in the Proxy Statement and the Target REITs shall use their respective reasonable best efforts Consent Solicitation/Offering Memorandum, including any opinions expressed therein, to obtain the opinion required by this subsection). Each extent that it involves matters of the Company and each Target REIT agrees to provide customary representations to Wilmer Cutler Pickering Hale and Dorr LLP (or such other law firm) in ▇▇▇▇▇▇▇▇▇▇ ▇▇t▇ ▇▇▇ ▇▇▇▇▇▇▇▇ of s▇▇▇ opinionlaw, is accurate; (df) either the President and Chief Executive Officer or the Vice President and Chief Operating Officer of the Company shall have delivered to each of the Target REITs a certificate on behalf of the Company, dated as of the Closing Date, to the effect that there have been no material adverse changes in the financial condition of the Company between the date of the most recent Company Financial Statements and the Closing Date, and the President of each of the Target REITs shall have delivered to the Company a certificate on behalf of each Target REIT, each dated as of the Closing Date, to the effect that there have been no material adverse changes in the financial condition of such Target REIT between the date of the most recent Target REIT Financial Statements for such Target REIT and the Closing Date; (eg) there shall have been no statute, rule, order or regulation enacted or issued by the United States or any State thereof, or by a court, that prohibits the consummation of the Mergers;; and (fh) the The representations set forth in Section 3, 3 and Section 4 and Article 4A hereof are true and complete in all material respects; provided, however, that the party whose representation was not true and correct shall have no right to not consummate the Closing as a result thereof; and (g) the Company shall have a reasonable belief that (i) the number of Target REIT Stockholders who are not Accredited Investors (as defined in Rule 501(a) of Regulation D promulgated under the Securities Act) does not exceed 35 and (ii) that each of such Target REIT Stockholders who is not an Accredited Investor, either alone or with his/her/its purchaser representative(s), has such knowledge and experience in business and financial matters that he/she/it is capable of evaluating the merits and risks of the Mergers. The conditions described in clause clauses (b), (c), (d) and (f), above, may be waived by either the Company or the Target REITs, as the case may be, in whole or in part if, in the opinion of either the Company or the Target REITs, as the case may be, such waiver does not materially affect the terms of the transaction, which waiver shall not be unreasonably withheld. The conditions described in clause (f) may be waived, in whole or in part, by the party to which the representation that is not true and correct is made.