Final Closing. (a) Upon satisfaction of the Final Closing Condition (defined below) for one or more Sites, Seller or Purchaser may deliver written notice of such satisfaction (a “Platting Completion Notice”) to the other party and the Title Company. In order for a notice from Seller or Purchaser to be considered a Platting Completion Notice, it must clearly state the words “Platting Completion Notice” at the top of such notice. To the extent that the other party and the Title Company do not already have such materials, the Platting Completion Notice shall include copies of the recorded Plat and the final Survey, if any, for each Site covered by such Platting Completion Notice (to the extent that the party sending the Platting Completion Notice has such materials). Promptly following the Title Company’s receipt of a Platting Completion Notice, the Title Company shall, without the need for any further instruction, promptly take the following actions: (1) Issue to Seller and Purchaser updated Title Commitment(s) (each an “Updated Title Commitment” and collectively, the “Updated Title Commitments”) for the applicable Site(s) covered by such Platting Completion Notice, which reference the recorded Plat(s) for the applicable Site(s) in the legal description for such Site(s) (each an “Updated Legal Description” and collectively, the “Updated Legal Descriptions”). Purchaser shall have the right to elect to instruct the Title Company to either include all of the Sites on a single Updated Title Commitment or to include one or more Sites on multiple Updated Title Commitments. (2) Replace the Preliminary Legal Description attached as Exhibit “A” to the applicable Preliminary Deed(s) with the respective Updated Legal Description for the applicable Site(s) and add any New Permitted Encumbrances appearing on the Updated Title Commitments or the Surveys, if any, to the list of Permitted Encumbrances attached as Exhibit “B” to the applicable Preliminary Deed(s). After each Preliminary Deed has been revised pursuant to this Section 7(a)(2), it shall be deemed an “Updated Deed”. (3) As soon as practicable after the Title Company receives a Platting Completion Notice, and prepares all of the applicable Updated Title Commitment(s) and all of the Updated Deed(s), the Title Company shall deliver written notice of such to Seller and Purchaser (the “Final Closing Notice”). The Final Closing Notice shall include copies of all of the applicable Updated Title Commitment(s) and all of the applicable Updated Deed(s). (b) Notwithstanding anything contained in this Contract to the contrary, during the period between the Preliminary Closing and the Final Closing for a Site, in no event shall Seller or its affiliates encumber, pledge, assign or transfer, by operation of law or otherwise, a Site or all or any portion of the Land or its interest therein; provided, however, that (i) Seller shall have the express right to take any Approved Actions and to execute, record and encumber any Site(s) with New Permitted Encumbrances, and (ii) such actions described in the immediately preceding clause (i) shall in no event be a default, breach or violation of this Contract or this paragraph. Any violation of this paragraph shall be a default by Seller for which, regardless of any other provision of this Contract, Purchaser shall be entitled to any and all remedies at law or in equity, including, without limitation, consequential and punitive damages; provided, however, that Purchaser may only pursue such remedies if Seller fails to cure such violation by causing such matter to be paid in full and released, bonded around or otherwise cured within five (5) business days following Seller’s receipt of written notice from Purchaser regarding such violation. (c) Upon receipt of a Final Closing Notice, Seller and Purchaser shall have a period of five (5) business days (the “Objection Period”) in which to deliver a written objection notice (an “Objection Notice”) to the other party and the Title Company; provided that Seller or Purchaser may only deliver an Objection Notice if either (i) the Final Closing Condition for the applicable Site(s) has not been satisfied or (ii) such party reasonably believes that there is a mistake in the Updated Commitment(s) or Updated Deed(s) for the applicable Site(s); and provided further that neither party may deliver an Objection Notice based on the inclusion of any Permitted Encumbrance or New Permitted Encumbrance (defined below) on the Updated Title Commitment(s) or Updated Deed(s) for the applicable Site(s). Notwithstanding anything to the contrary, if either party delivers an improper Objection Notice or without a reasonable basis for doing so, such party shall be responsible for all costs incurred by the other party as a result thereof, including reasonable attorneys’ fees and court costs. If the Title Company does not receive an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the “Final Closing” for the Site(s) covered by such Final Closing Notice will be deemed to have occurred on the expiration of the applicable Objection Period (the “Actual Final Closing Date” for such Site(s)) and the parties shall promptly take the following actions following the expiration of the Objection Period (collectively, the “Final Closing Actions”): (1) The Title Company shall date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the Actual Final Closing Date for such Site(s), and record such documents in the Real Property Records of the proper County in which the respective Site(s) are located. (2) The Title Company shall date each of the applicable Updated Deed(s) to be effective as of the Actual Final Closing Date for such Site(s) and record such Updated Deeds in the Real Property Records of the proper County in which the respective Site(s) are located. (3) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of an Amendment to Permanent Lease (each an “Amendment to Permanent Lease”) and a Memorandum of Amendment to Permanent Lease (each a “Memorandum of Amendment to Permanent Lease”), both in a form reasonably acceptable to Seller and Purchaser, and pursuant to which the Site(s) covered by such Final Closing are added as part of the Property covered by the Permanent Lease, with the effective date of the Permanent Lease as to such newly added Site(s) being the date of such Final Closing. The Title Company shall date each Memorandum of Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s) and record such Memorandum of Amendment to Permanent Lease in the Real Property Records of the County in which the respective Site(s) are located. (4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Permanent Lease, and deliver one original counterpart of such Permanent Lease to both Seller and Purchaser. If the Final Closing has previously occurred for any of the other Sites, the Title Company shall date the Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Amendment to Permanent Lease, and deliver one original counterpart of such Amendment to Permanent Lease to both Seller and Purchaser. (5) If the Final Closing has occurred for all Sites, then the Title Company shall record one original counterpart of the Release of Memorandum in the Real Property Records of Tarrant, Johnson, Dallas and ▇▇▇▇▇ Counties, Texas. (6) The Title Company shall release the Escrowed Funds for the purpose of paying the expenses shown on the settlement statements, including any title premium for the Owner Policies covering the applicable Site(s) to the extent such premium was escrowed as part of the Escrowed Funds (subject to and as applicable pursuant to Section 6(b)(5) above) and the recording fees for the applicable Site(s). (7) The Title Company shall issue to Purchaser the Owner Policies covering the applicable Site(s) subject only to the exceptions shown on the applicable Updated Title Commitment(s) (subject to and as applicable pursuant to Section 6(b)(5) above). Purchaser may purchase, at its expense, any title insurance coverage in excess of that provided in the Owner Policies by the Title Company. (8) In the event that Final Closing has occurred for all Sites which have not, as of such date, been included in a Deletion Notice pursuant to Section 7(f) below, and all expenses and prorations for all such remaining Sites have been paid including, without limitation, all recording fees, then the Title Company shall refund any remaining Escrowed Funds to Seller. Notwithstanding anything to the contrary, in the event that the Escrowed Funds are not sufficient to cover all expenses in connection with the Final Closing(s), Seller and Purchaser shall promptly deliver to the Title Company any additional funds necessary for the Final Closing(s) (“Additional Final Closing Expenses”), with Seller and Purchaser each being responsible for the same proportional amount of each type of Additional Final Closing Expenses for which such party was originally responsible at the Preliminary Closing pursuant to this Contract. Seller and Purchaser shall pay to the Title Company such party’s proportionate share of Additional Final Closing Expenses within ten (10) days after such party’s receipt of a written notice from the Title Company setting forth the amount owed. (9) Upon completion of the Final Closing for each Site, Seller shall deliver to Purchaser possession of such Site, subject to the applicable Permanent Lease. (d) If the Title Company receives an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the Title Company shall not take any further action with regard to the Final Closing Actions for the Site(s) affected by such Objection Notice until the earlier of: (x) directed to do so in writing by Seller and Purchaser or (xx) a determination is made by a court of competent jurisdiction that the Final Closing Condition for such affected Site(s) has been satisfied or (xxx) the Outside Final Closing Deadline. If an Objection Notice for any Site is based on a mistake in the Updated Title Commitment or the Updated Deed for such Site, Seller and Buyer hereby agree to work with the Title Company to correct such mistake and to authorize the Title Company to proceed with the Final Closing Actions for such Site promptly after the mistake is corrected. (e) The “Outside Final Closing Deadline” shall be September 30, 2009; provided, however, Seller shall have the right to extend the Outside Final Closing Deadline for up to two (2) consecutive 30-day periods by providing written notice to Purchaser on or before the Outside Final Closing Deadline, as such may be extended hereunder. (f) Notwithstanding anything to the contrary, in the event that Seller reasonably determines that, despite Seller’s commercially reasonable best efforts, it will not be able to obtain an approved Plat or otherwise satisfy the Final Closing Condition for one or more Site(s) prior to the Outside Final Closing Deadline, then Seller may elect to delete such Site(s) (each a “Deleted Site” and collectively, the “Deleted Sites”) from the sale by taking the following actions on or before the Outside Final Closing Deadline: (i) providing a written notice (“Deletion Notice”) to Purchaser and the Title Company, which Deletion Notice shall include a detailed description of the reason that Seller was not able to satisfy the Final Closing Condition for such Site(s), and (ii) delivering to the Title Company an amount equal to the product of the number of deleted Sites covered by such Deletion Notice, multiplied by $1,302,857.14 (the “Deletion Repayment”). Notwithstanding anything to the contrary, (i) Seller may delete no more than twelve (12) Sites pursuant to this Section 7(f) or pursuant to any other express provision of this Contract and (ii) as a condition precedent to Seller’s right to delete a Site, Seller must have unconditionally delivered the Deletion Repayment to the Title Company and Title Company must have unconditionally delivered the Deletion Repayment to Purchaser. Promptly following the Title Company’s receipt of a Deletion Notice, the Title Company shall take the following actions (collectively, “Deletion Actions”): (1) Date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the date of the Deletion Notice for such Deleted Site(s), and record such documents in the Real Property Records of the proper County in which the respective Deleted Site(s) are located. (2) Release the Deletion Repayment to Purchaser. (3) Do not record, but rather, release the applicable Preliminary Deed, back to Seller so that Seller can destroy same, and do not include such Deleted Site(s) in Exhibit “A” to the Permanent Lease. (4) Re-calculate the prorated taxes and other expenses set forth on the settlement statements issued at the Preliminary Closing, and tender any reimbursements resulting therefrom to the appropriate party. Notwithstanding anything to the contrary, Seller shall promptly pay any additional amounts owed by Seller as shown on the revised settlement statements as a result of such deletion, and Purchaser shall in no event be responsible for any additional expenses as a result of such deletion. Following the completion of the Deletion Actions, Purchaser shall have no further right, title or interest in and to the Deleted Site(s). Additionally, Purchaser may retain the portion of any previously paid rent applicable to the period between the Preliminary Closing and the date of such Deletion Notice. (g) If the Final Closing for a particular Site occurs prior to the Outside Final Closing Deadline, then the closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Actual Final Closing Date for such Site. (h) In the event that, as of the Outside Final Closing Deadline, the Final Closing Condition for any Site has not been satisfied and Seller has not deleted such Site from the conveyance pursuant to Section 7(f) above, then: (1) The Actual Final Closing Date and the Final Closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Outside Final Closing Deadline. (2) The Title Company shall date the applicable Partial Termination of Master Lease and Partial Termination of Sublease for such Site as of the Outside Final Closing Deadline, and record such documents in the Real Property Records of the proper County in which the Site are located. (3) The Title Company shall date the applicable Preliminary Deed to be effective as of the Outside Final Closing Deadline for such Site and record such Preliminary Deed in the Real Property Records of the proper County in which the Site is located. (4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of
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Final Closing. Upon the terms and subject to the conditions of this Agreement, at the Final Closing provided for in Section 2.03 and, except as provided below in this Section 2.01(c), for no separate consideration under this Agreement or the Brokerage Asset Purchase Agreement, subject to the allocation of the Purchase Price as provided for in the Brokerage Asset Purchase Agreement, Seller shall, and shall cause each other Seller Entity to, sell, convey, assign, transfer and deliver or cause to be sold, conveyed, assigned, transferred and delivered to Buyer (aor to a Subsidiary of Buyer, as directed by Buyer), and Buyer (or such Subsidiary) Upon satisfaction shall purchase, acquire and assume from each Seller Entity, good and valid title in and to all of such Seller Entity's right, title and interest in and to all of the property and assets, real, personal or mixed, tangible or intangible (including goodwill), of every kind and description, wherever located (other than the Excluded Assets, the OMEGA Assets, and the Wrap Assets) used primarily in or necessary to conduct the Asset Management Business (the "Final Closing Assets", and collectively with the OMEGA Assets and the Wrap Assets, the "Asset Management Assets"), free and clear of any Liens other than Permitted Liens, including:
(i) each such Seller Entity's rights with respect to the Eligible Client Accounts as of the Final Closing Condition Date, other than the Excluded Accounts, Eligible OMEGA Accounts and Eligible Wrap Accounts (defined belowthe "Transferred Final Accounts");
(ii) for one or more Sites, each such Seller or Purchaser may deliver written notice of such satisfaction (a “Platting Completion Notice”) Entity's rights under the Advisory and Wrap Agreements and other agreements related to the other party Transferred Final Accounts, including such Seller Entity's rights as to all guarantees, warranties and indemnities related thereto;
(iii) with respect to the Title Company. In order for a notice from Seller or Purchaser Transferred Final Accounts, but subject to be considered a Platting Completion Notice, it must clearly state the words “Platting Completion Notice” at the top of applicable privacy laws:
(A) all material information relating to each Final Transferred Account (all such notice. To the extent that the other party and the Title Company do not already have such materialsinformation, the Platting Completion Notice shall include copies of "Transferred Final Account Information");
(B) all rights granted by Clients to use Transferred Final Account Information, including all Client instructions and consents with respect to solicitation;
(iv) each such Seller Entity's rights with respect to the recorded Plat accrued and unpaid fees (together with accrued and unpaid fees transferred pursuant to Section 2.01(a)(iv) or 2.01(b)(iv), the final Survey, if any, for each Site covered by such Platting Completion Notice "Accrued Fees") with respect to the Transferred Final Accounts;
(v) except to the extent that transferred at the party sending First Closing or the Platting Completion Notice has Second Closing, all equipment, furniture, fixtures, improvements and all other tangible personal property used primarily in or necessary to conduct the Asset Management Business as set forth on Schedule III (together with such materials). Promptly following the Title Company’s receipt of a Platting Completion Noticeproperty set forth on Schedules I and II, the Title Company shall, without the need for any further instruction, promptly take the following actions:"Acquired Property");
(1vi) Issue to Seller and Purchaser updated Title Commitment(s) (each an “Updated Title Commitment” and collectively, the “Updated Title Commitments”) for the applicable Site(s) covered by such Platting Completion Notice, which reference the recorded Plat(s) for the applicable Site(s) in the legal description for such Site(s) (each an “Updated Legal Description” and collectively, the “Updated Legal Descriptions”). Purchaser shall have the right to elect to instruct the Title Company to either include all of the Sites on a single Updated Title Commitment or to include one or more Sites on multiple Updated Title Commitments.
(2) Replace the Preliminary Legal Description attached as Exhibit “A” to the applicable Preliminary Deed(s) with the respective Updated Legal Description for the applicable Site(s) and add any New Permitted Encumbrances appearing on the Updated Title Commitments or the Surveys, if any, to the list of Permitted Encumbrances attached as Exhibit “B” to the applicable Preliminary Deed(s). After each Preliminary Deed has been revised pursuant to this Section 7(a)(2), it shall be deemed an “Updated Deed”.
(3) As soon as practicable after the Title Company receives a Platting Completion Notice, and prepares all of the applicable Updated Title Commitment(s) and all of the Updated Deed(s), the Title Company shall deliver written notice of such to Seller and Purchaser (the “Final Closing Notice”). The Final Closing Notice shall include copies of all of the applicable Updated Title Commitment(s) and all of the applicable Updated Deed(s).
(b) Notwithstanding anything contained in this Contract to the contrary, during the period between the Preliminary Closing and the Final Closing for a Site, in no event shall Seller or its affiliates encumber, pledge, assign or transfer, by operation of law or otherwise, a Site or all or any portion of the Land or its interest therein; provided, however, that (i) Seller shall have the express right to take any Approved Actions and to execute, record and encumber any Site(s) with New Permitted Encumbrances, and (ii) such actions described in the immediately preceding clause (i) shall in no event be a default, breach or violation of this Contract or this paragraph. Any violation of this paragraph shall be a default by Seller for which, regardless of any other provision of this Contract, Purchaser shall be entitled to any and all remedies at law or in equity, including, without limitation, consequential and punitive damages; provided, however, that Purchaser may only pursue such remedies if Seller fails to cure such violation by causing such matter to be paid in full and released, bonded around or otherwise cured within five (5) business days following Seller’s receipt of written notice from Purchaser regarding such violation.
(c) Upon receipt of a Final Closing Notice, Seller and Purchaser shall have a period of five (5) business days (the “Objection Period”) in which to deliver a written objection notice (an “Objection Notice”) to the other party and the Title Company; provided that Seller or Purchaser may only deliver an Objection Notice if either (i) the Final Closing Condition for the applicable Site(s) has not been satisfied or (ii) such party reasonably believes that there is a mistake in the Updated Commitment(s) or Updated Deed(s) for the applicable Site(s); and provided further that neither party may deliver an Objection Notice based on the inclusion of any Permitted Encumbrance or New Permitted Encumbrance (defined below) on the Updated Title Commitment(s) or Updated Deed(s) for the applicable Site(s). Notwithstanding anything to the contrary, if either party delivers an improper Objection Notice or without a reasonable basis for doing so, such party shall be responsible for all costs incurred by the other party as a result thereof, including reasonable attorneys’ fees and court costs. If the Title Company does not receive an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the “Final Closing” for the Site(s) covered by such Final Closing Notice will be deemed to have occurred on the expiration of the applicable Objection Period (the “Actual Final Closing Date” for such Site(s)) and the parties shall promptly take the following actions following the expiration of the Objection Period (collectively, the “Final Closing Actions”):
(1) The Title Company shall date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the Actual Final Closing Date for such Site(s), and record such documents in the Real Property Records of the proper County in which the respective Site(s) are located.
(2) The Title Company shall date each of the applicable Updated Deed(s) to be effective as of the Actual Final Closing Date for such Site(s) and record such Updated Deeds in the Real Property Records of the proper County in which the respective Site(s) are located.
(3) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of an Amendment to Permanent Lease (each an “Amendment to Permanent Lease”) and a Memorandum of Amendment to Permanent Lease (each a “Memorandum of Amendment to Permanent Lease”), both in a form reasonably acceptable to Seller and Purchaser, and pursuant to which the Site(s) covered by such Final Closing are added as part of the Property covered by the Permanent Lease, with the effective date of the Permanent Lease as to such newly added Site(s) being the date of such Final Closing. The Title Company shall date each Memorandum of Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s) and record such Memorandum of Amendment to Permanent Lease in the Real Property Records of the County in which the respective Site(s) are located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Permanent Lease, and deliver one original counterpart of such Permanent Lease to both Seller and Purchaser. If the Final Closing has previously occurred for any of the other Sites, the Title Company shall date the Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Amendment to Permanent Lease, and deliver one original counterpart of such Amendment to Permanent Lease to both Seller and Purchaser.
(5) If the Final Closing has occurred for all Sites, then the Title Company shall record one original counterpart of the Release of Memorandum in the Real Property Records of Tarrant, Johnson, Dallas and ▇▇▇▇▇ Counties, Texas.
(6) The Title Company shall release the Escrowed Funds for the purpose of paying the expenses shown on the settlement statements, including any title premium for the Owner Policies covering the applicable Site(s) except to the extent transferred at the First Closing or the Second Closing, each such premium was escrowed Seller Entity's rights under all Assumed Contracts as part of set forth in the Escrowed Funds applicable Undertaking;
(vii) except to the extent transferred at the First Closing or the Second Closing, all Permits received by or issued to each such Seller Entity or any employee or officer thereof to own, or lease and operate the Asset Management Business and to conduct the Asset Management Business;
(viii) except to the extent transferred at the First Closing or the Second Closing, Trademarks and Intellectual Property, together with all additions, modifications, updates and enhancements;
(ix) except to the extent previously transferred to Buyer under the Brokerage Asset Purchase Agreement or at the First Closing or the Second Closing and subject to Section 3.05, the Books and as applicable pursuant to Section 6(b)(5) above) and the recording fees for the applicable Site(s).Records;
(7) The Title Company shall issue to Purchaser the Owner Policies covering the applicable Site(s) subject only to the exceptions shown on the applicable Updated Title Commitment(s) (subject to and as applicable pursuant to Section 6(b)(5) above). Purchaser may purchase, at its expense, any title insurance coverage in excess of that provided in the Owner Policies by the Title Company.
(8) In the event that Final Closing has occurred for all Sites which have not, as of such date, been included in a Deletion Notice pursuant to Section 7(f) below, and all expenses and prorations for all such remaining Sites have been paid including, without limitation, all recording fees, then the Title Company shall refund any remaining Escrowed Funds to Seller. Notwithstanding anything to the contrary, in the event that the Escrowed Funds are not sufficient to cover all expenses in connection with the Final Closing(s), Seller and Purchaser shall promptly deliver to the Title Company any additional funds necessary for the Final Closing(s) (“Additional Final Closing Expenses”), with Seller and Purchaser each being responsible for the same proportional amount of each type of Additional Final Closing Expenses for which such party was originally responsible at the Preliminary Closing pursuant to this Contract. Seller and Purchaser shall pay to the Title Company such party’s proportionate share of Additional Final Closing Expenses within ten (10) days after such party’s receipt of a written notice from the Title Company setting forth the amount owed.
(9) Upon completion of the Final Closing for each Site, Seller shall deliver to Purchaser possession of such Site, subject to the applicable Permanent Lease.
(d) If the Title Company receives an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the Title Company shall not take any further action with regard to the Final Closing Actions for the Site(s) affected by such Objection Notice until the earlier of: (x) directed except to do so in writing the extent transferred at the First Closing or the Second Closing, such prepaid fees and expenses and other assets as Buyer and Seller shall mutually agree as necessary and appropriate for the operation by Seller and Purchaser or Buyer of the Asset Management Business; and
(xxxi) a determination is made by a court of competent jurisdiction all Purchased Investments, provided that the Final Closing Condition purchase price for such affected Site(s) has been satisfied or (xxx) the Outside Final Closing Deadline. If an Objection Notice for any Site is based on a mistake in the Updated Title Commitment or the Updated Deed for such Site, Seller and Buyer hereby agree to work with the Title Company to correct such mistake and to authorize the Title Company to proceed with the Final Closing Actions for such Site promptly after the mistake is corrected.
(e) The “Outside Final Closing Deadline” Purchased Investments shall be September 30, 2009; provided, however, Seller shall have the right to extend the Outside Final Closing Deadline for up to two (2) consecutive 30-day periods by providing written notice to Purchaser on or before the Outside Final Closing Deadline, as such may be extended hereunderprovided in Section 2.04.
(f) Notwithstanding anything to the contrary, in the event that Seller reasonably determines that, despite Seller’s commercially reasonable best efforts, it will not be able to obtain an approved Plat or otherwise satisfy the Final Closing Condition for one or more Site(s) prior to the Outside Final Closing Deadline, then Seller may elect to delete such Site(s) (each a “Deleted Site” and collectively, the “Deleted Sites”) from the sale by taking the following actions on or before the Outside Final Closing Deadline: (i) providing a written notice (“Deletion Notice”) to Purchaser and the Title Company, which Deletion Notice shall include a detailed description of the reason that Seller was not able to satisfy the Final Closing Condition for such Site(s), and (ii) delivering to the Title Company an amount equal to the product of the number of deleted Sites covered by such Deletion Notice, multiplied by $1,302,857.14 (the “Deletion Repayment”). Notwithstanding anything to the contrary, (i) Seller may delete no more than twelve (12) Sites pursuant to this Section 7(f) or pursuant to any other express provision of this Contract and (ii) as a condition precedent to Seller’s right to delete a Site, Seller must have unconditionally delivered the Deletion Repayment to the Title Company and Title Company must have unconditionally delivered the Deletion Repayment to Purchaser. Promptly following the Title Company’s receipt of a Deletion Notice, the Title Company shall take the following actions (collectively, “Deletion Actions”):
(1) Date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the date of the Deletion Notice for such Deleted Site(s), and record such documents in the Real Property Records of the proper County in which the respective Deleted Site(s) are located.
(2) Release the Deletion Repayment to Purchaser.
(3) Do not record, but rather, release the applicable Preliminary Deed, back to Seller so that Seller can destroy same, and do not include such Deleted Site(s) in Exhibit “A” to the Permanent Lease.
(4) Re-calculate the prorated taxes and other expenses set forth on the settlement statements issued at the Preliminary Closing, and tender any reimbursements resulting therefrom to the appropriate party. Notwithstanding anything to the contrary, Seller shall promptly pay any additional amounts owed by Seller as shown on the revised settlement statements as a result of such deletion, and Purchaser shall in no event be responsible for any additional expenses as a result of such deletion. Following the completion of the Deletion Actions, Purchaser shall have no further right, title or interest in and to the Deleted Site(s). Additionally, Purchaser may retain the portion of any previously paid rent applicable to the period between the Preliminary Closing and the date of such Deletion Notice.
(g) If the Final Closing for a particular Site occurs prior to the Outside Final Closing Deadline, then the closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Actual Final Closing Date for such Site.
(h) In the event that, as of the Outside Final Closing Deadline, the Final Closing Condition for any Site has not been satisfied and Seller has not deleted such Site from the conveyance pursuant to Section 7(f) above, then:
(1) The Actual Final Closing Date and the Final Closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Outside Final Closing Deadline.
(2) The Title Company shall date the applicable Partial Termination of Master Lease and Partial Termination of Sublease for such Site as of the Outside Final Closing Deadline, and record such documents in the Real Property Records of the proper County in which the Site are located.
(3) The Title Company shall date the applicable Preliminary Deed to be effective as of the Outside Final Closing Deadline for such Site and record such Preliminary Deed in the Real Property Records of the proper County in which the Site is located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of
Appears in 1 contract
Final Closing. (a) Upon satisfaction of the Final Closing Condition (defined below) for one or more Sites, Seller or Purchaser may deliver written notice of such satisfaction (a “Platting Completion Notice”) to the other party and the Title Company. In order for a notice from Seller or Purchaser to be considered a Platting Completion Notice, it must clearly state the words “Platting Completion Notice” at the top of such notice. To the extent that the other party and the Title Company do not already have such materials, the Platting Completion Notice shall include copies of the recorded Plat and the final Survey, if any, for each Site covered by such Platting Completion Notice (to the extent that the party sending the Platting Completion Notice has such materials). Promptly following the Title Company’s receipt of a Platting Completion Notice, the Title Company shall, without the need for any further instruction, promptly take the following actions:
(1) Issue to Seller and Purchaser updated Title Commitment(s) (each an “Updated Title Commitment” and collectively, the “Updated Title Commitments”) for the applicable Site(s) covered by such Platting Completion Notice, which reference the recorded Plat(s) for the applicable Site(s) in the legal description for such Site(s) (each an “Updated Legal Description” and collectively, the “Updated Legal Descriptions”). Purchaser shall have the right to elect to instruct the Title Company to either include all of the Sites on a single Updated Title Commitment or to include one or more Sites on multiple Updated Title Commitments.
(2) Replace the Preliminary Legal Description attached as Exhibit “A” to the applicable Preliminary Deed(s) with the respective Updated Legal Description for the applicable Site(s) and add any New Permitted Encumbrances appearing on the Updated Title Commitments or the Surveys, if any, to the list of Permitted Encumbrances attached as Exhibit “B” to the applicable Preliminary Deed(s). After each Preliminary Deed has been revised pursuant to this Section 7(a)(2), it shall be deemed an “Updated Deed”.
(3) As soon as practicable after the Title Company receives a Platting Completion Notice, and prepares all of the applicable Updated Title Commitment(s) and all of the Updated Deed(s), the Title Company shall deliver written notice of such to Seller and Purchaser (the “Final Closing Notice”). The Final Closing Notice shall include copies of all of the applicable Updated Title Commitment(s) and all of the applicable Updated Deed(s).
(b) Notwithstanding anything contained in this Contract to the contrary, during the period between the Preliminary Closing and the Final Closing for a Site, in no event shall Seller or its affiliates encumber, pledge, assign or transfer, by operation of law or otherwise, a Site or all or any portion of the Land or its interest therein; provided, however, that (i) Seller shall have the express right to take any Approved Actions and to execute, record and encumber any Site(s) with New Permitted Encumbrances, and (ii) such actions described in the immediately preceding clause (i) shall in no event be a default, breach or violation of this Contract or this paragraph. Any violation of this paragraph shall be a default by Seller for which, regardless of any other provision of this Contract, Purchaser shall be entitled to any and all remedies at law or in equity, including, without limitation, consequential and punitive damages; provided, however, that Purchaser may only pursue such remedies if Seller fails to cure such violation by causing such matter to be paid in full and released, bonded around or otherwise cured within Within five (5) business days following Seller’s after receipt of written notice from Purchaser regarding such violation.
the Company that it has obtained stockholder approval meeting the requirements of AMEX (the “Stockholder Approval”) to: (a) issue to the Subscribers the balance of the Common Stock and Warrants included in the Units (including any shares of Common Stock issuable upon exercise thereof) subscribed for by the Subscribers and not issued at the Initial Closing, (b) issue to the Placement Agent the warrant pursuant to that certain placement agent agreement by and between the Company and the Placement Agent (the “Placement Warrant”) (including any shares of Common Stock issuable upon exercise thereof), and (c) Upon receipt amend the Company’s Certificate of a Incorporation to increase the number of authorized shares of Common Stock in an amount sufficient to issue the balance of the Common Stock and Warrants included in the Units (including any shares of Common Stock issuable upon exercise thereof) and the Placement Warrant (including any shares of Common Stock issuable upon exercise thereof), each Subscriber is required, and hereby agrees to fulfill the balance of its Subscription at the Final Closing Noticeby forwarding additional funds to the Escrow Agent prior to the Final Closing equal to, Seller and Purchaser shall have on a period of five (5) business days pro-rata basis, the Aggregate Offering Amount minus the Initial Closing Amount (the “Objection PeriodFinal Closing Amount”) in which to deliver a written objection notice (an “Objection Notice”) ). Upon compliance with all conditions to the other party and Final Closing, the Title Placement Agent, with notice to the Company; provided that Seller or Purchaser may only deliver an Objection Notice if either (i) , shall authorize the Escrow Agent to release the proceeds of the Final Closing Condition for to the applicable Site(s) has not been satisfied or (ii) such party reasonably believes that there is a mistake Company, less fees and expenses due to the Placement Agent and the Subscribers shall purchase and the Company shall sell the balance of the Common Stock and Warrants included in the Updated Commitment(s) or Updated Deed(s) for the applicable Site(s); and provided further that neither party may deliver an Objection Notice based on the inclusion of any Permitted Encumbrance or New Permitted Encumbrance Units (defined below) on the Updated Title Commitment(s) or Updated Deed(s) for the applicable Site(s). Notwithstanding anything to the contrary, if either party delivers an improper Objection Notice or without a reasonable basis for doing so, such party shall be responsible for all costs incurred by the other party as a result thereof, including reasonable attorneys’ fees and court costs. If the Title Company does not receive an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the “Final Closing” for the Site(s) covered by and such Final Closing Notice will be deemed to have occurred on the expiration of the applicable Objection Period (the “Actual Final Closing Date” for such Site(s)) and the parties shall promptly take the following actions following the expiration of the Objection Period (collectivelydate, the “Final Closing ActionsDate”):
(1) The Title Company shall date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the Actual Final Closing Date for such Site(s). Interest, and record such documents in the Real Property Records of the proper County in which the respective Site(s) are located.
(2) The Title Company shall date each of the applicable Updated Deed(s) if any, that has accrued with respect to be effective as of the Actual Final Closing Date for such Site(s) and record such Updated Deeds in the Real Property Records of the proper County in which the respective Site(s) are located.
(3) If the Final Closing has not previously occurred for any of Amount while in escrow shall also be distributed to the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If at the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver Subscribers will have no right to such interest. Prior to the Title Company Final Closing and in any event not more than two (2) counterparts business days after Stockholder Approval, the Company shall file with the Secretary of State of the State of Delaware an Amendment amendment to Permanent Lease the Company’s Certificate of Incorporation (each an the “Amendment to Permanent LeaseAmended Certificate of Incorporation”) and a Memorandum increasing the authorized number of Amendment shares of Common Stock in an amount sufficient to Permanent Lease issue the balance of such Securities (each a “Memorandum of Amendment to Permanent Lease”), both in a form reasonably acceptable to Seller and Purchaser, and pursuant to which the Site(s) covered by such Final Closing are added as part including subsequent exercises of the Property covered by the Permanent Lease, with the effective date of the Permanent Lease as to such newly added Site(s) being the date of such Final ClosingWarrants). The Title Company shall date each Memorandum of Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s) and record such Memorandum of Amendment to Permanent Lease in the Real Property Records of the County in which the respective Site(s) are located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Permanent Lease, and deliver one original counterpart of such Permanent Lease to both Seller and Purchaser. If the Final Closing has previously occurred for any of the other Sites, the Title Company shall date the Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Amendment to Permanent Lease, and deliver one original counterpart of such Amendment to Permanent Lease to both Seller and Purchaser.
(5) If the Final Closing has occurred for all Sites, then the Title Company shall record one original counterpart of the Release of Memorandum in the Real Property Records of Tarrant, Johnson, Dallas and ▇▇▇▇▇ Counties, Texas.
(6) The Title Company shall release the Escrowed Funds for the purpose of paying the expenses shown on the settlement statements, including any title premium for the Owner Policies covering the applicable Site(s) to the extent such premium was escrowed as part of the Escrowed Funds (subject to and as applicable pursuant to Section 6(b)(5) above) and the recording fees for the applicable Site(s).
(7) The Title Company shall issue to Purchaser the Owner Policies covering the applicable Site(s) subject only to the exceptions shown on the applicable Updated Title Commitment(s) (subject to and as applicable pursuant to Section 6(b)(5) above). Purchaser may purchase, at its expense, any title insurance coverage in excess of that provided in the Owner Policies by the Title Company.
(8) In the event that Final Closing has occurred for all Sites which have not, as of such date, been included in a Deletion Notice pursuant to Section 7(f) below, and all expenses and prorations for all such remaining Sites have been paid including, without limitation, all recording fees, then the Title Company shall refund any remaining Escrowed Funds to Seller. Notwithstanding anything to the contrary, in the event that the Escrowed Funds are not sufficient to cover all expenses in connection with the Final Closing(s), Seller and Purchaser shall promptly deliver to the Title Company any additional funds necessary for the Final Closing(s) (“Additional Final Closing Expenses”), with Seller and Purchaser each being responsible for the same proportional amount of each type of Additional Final Closing Expenses for which such party was originally responsible at the Preliminary Closing pursuant to this Contract. Seller and Purchaser shall pay to the Title Company such party’s proportionate share of Additional Final Closing Expenses within ten (10) days after such party’s receipt of Stockholder Approval (as further described below) is a written notice from the Title Company setting forth the amount owed.
(9) Upon completion of the Final Closing for each Site, Seller shall deliver to Purchaser possession of such Site, subject to the applicable Permanent Lease.
(d) If the Title Company receives an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the Title Company shall not take any further action with regard condition to the Final Closing Actions for the Site(s) affected by and such Objection Notice until the earlier of: (x) directed to do so in writing by Seller and Purchaser or (xx) a determination is made by a court of competent jurisdiction that the Final Closing Condition for such affected Site(s) has been satisfied or (xxx) the Outside Final Closing Deadline. If an Objection Notice for any Site is based on a mistake in the Updated Title Commitment or the Updated Deed for such Site, Seller and Buyer hereby agree to work with the Title Company to correct such mistake and to authorize the Title Company to proceed with the Final Closing Actions for such Site promptly after the mistake is corrected.
(e) The “Outside Final Closing Deadline” shall be September 30, 2009; provided, however, Seller shall have the right to extend the Outside Final Closing Deadline for up to two (2) consecutive 30-day periods by providing written notice to Purchaser on or before the Outside Final Closing Deadline, as such condition may be extended hereunder.
(f) Notwithstanding anything to the contrary, in the event that Seller reasonably determines that, despite Seller’s commercially reasonable best efforts, it will not be able to obtain an approved Plat or otherwise satisfy waived by the Final Closing Condition for one or more Site(s) prior to the Outside Final Closing Deadline, then Seller may elect to delete such Site(s) (each a “Deleted Site” and collectively, the “Deleted Sites”) from the sale by taking the following actions on or before the Outside Final Closing Deadline: (i) providing a written notice (“Deletion Notice”) to Purchaser and the Title Company, which Deletion Notice shall include a detailed description of the reason that Seller was not able to satisfy the Final Closing Condition for such Site(s), and (ii) delivering to the Title Company an amount equal to the product of the number of deleted Sites covered by such Deletion Notice, multiplied by $1,302,857.14 (the “Deletion Repayment”). Notwithstanding anything to the contrary, (i) Seller may delete no more than twelve (12) Sites pursuant to this Section 7(f) or pursuant to any other express provision of this Contract and (ii) as a condition precedent to Seller’s right to delete a Site, Seller must have unconditionally delivered the Deletion Repayment to the Title Company and Title Company must have unconditionally delivered the Deletion Repayment to Purchaser. Promptly following the Title Company’s receipt of a Deletion Notice, the Title Company shall take the following actions (collectively, “Deletion Actions”):
(1) Date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the date of the Deletion Notice for such Deleted Site(s), and record such documents in the Real Property Records of the proper County in which the respective Deleted Site(s) are locatedSubscribers.
(2) Release the Deletion Repayment to Purchaser.
(3) Do not record, but rather, release the applicable Preliminary Deed, back to Seller so that Seller can destroy same, and do not include such Deleted Site(s) in Exhibit “A” to the Permanent Lease.
(4) Re-calculate the prorated taxes and other expenses set forth on the settlement statements issued at the Preliminary Closing, and tender any reimbursements resulting therefrom to the appropriate party. Notwithstanding anything to the contrary, Seller shall promptly pay any additional amounts owed by Seller as shown on the revised settlement statements as a result of such deletion, and Purchaser shall in no event be responsible for any additional expenses as a result of such deletion. Following the completion of the Deletion Actions, Purchaser shall have no further right, title or interest in and to the Deleted Site(s). Additionally, Purchaser may retain the portion of any previously paid rent applicable to the period between the Preliminary Closing and the date of such Deletion Notice.
(g) If the Final Closing for a particular Site occurs prior to the Outside Final Closing Deadline, then the closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Actual Final Closing Date for such Site.
(h) In the event that, as of the Outside Final Closing Deadline, the Final Closing Condition for any Site has not been satisfied and Seller has not deleted such Site from the conveyance pursuant to Section 7(f) above, then:
(1) The Actual Final Closing Date and the Final Closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Outside Final Closing Deadline.
(2) The Title Company shall date the applicable Partial Termination of Master Lease and Partial Termination of Sublease for such Site as of the Outside Final Closing Deadline, and record such documents in the Real Property Records of the proper County in which the Site are located.
(3) The Title Company shall date the applicable Preliminary Deed to be effective as of the Outside Final Closing Deadline for such Site and record such Preliminary Deed in the Real Property Records of the proper County in which the Site is located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of
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Final Closing. (a) Upon satisfaction of the Final Closing Condition (defined below) for one On or more Sitesbefore 1:00 p.m., Seller Orlando, Florida time, on September 3, 2019, or Purchaser may deliver written notice of such satisfaction (a “Platting Completion Notice”) to the other party and the Title Company. In order for a notice from Seller or Purchaser to be considered a Platting Completion Notice, it must clearly state the words “Platting Completion Notice” at the top of such notice. To the extent that the other party and the Title Company do not already have such materials, the Platting Completion Notice shall include copies of the recorded Plat and the final Survey, if any, for each Site covered by such Platting Completion Notice (to other time on that date as may be mutually agreed upon by the extent that the party sending the Platting Completion Notice has such materials). Promptly following the Title Company’s receipt of a Platting Completion Notice, the Title Company shall, without the need for any further instruction, promptly take the following actions:
(1) Issue to Seller Agency and Purchaser updated Title Commitment(s) (each an “Updated Title Commitment” and collectively, the “Updated Title Commitments”) for the applicable Site(s) covered by such Platting Completion Notice, which reference the recorded Plat(s) for the applicable Site(s) in the legal description for such Site(s) (each an “Updated Legal Description” and collectively, the “Updated Legal Descriptions”). Purchaser shall have the right to elect to instruct the Title Company to either include all of the Sites on a single Updated Title Commitment or to include one or more Sites on multiple Updated Title Commitments.
(2) Replace the Preliminary Legal Description attached as Exhibit “A” to the applicable Preliminary Deed(s) with the respective Updated Legal Description for the applicable Site(s) and add any New Permitted Encumbrances appearing on the Updated Title Commitments or the Surveys, if any, to the list of Permitted Encumbrances attached as Exhibit “B” to the applicable Preliminary Deed(s). After each Preliminary Deed has been revised pursuant to this Section 7(a)(2), it shall be deemed an “Updated Deed”.
(3) As soon as practicable after the Title Company receives a Platting Completion Notice, and prepares all of the applicable Updated Title Commitment(s) and all of the Updated Deed(s), the Title Company shall deliver written notice of such to Seller and Purchaser Lender (the “Final Closing NoticeDate”). The Final Closing Notice shall include copies of all of the applicable Updated Title Commitment(s) and all of the applicable Updated Deed(s).
(b) Notwithstanding anything contained in this Contract to the contrary, during the period between the Preliminary Closing and the Final Closing for a Site, in no event shall Seller or its affiliates encumber, pledge, assign or transfer, by operation of law or otherwise, a Site or all or any portion of the Land or its interest therein; provided, however, that (i) Seller shall have the express right Agency will, subject to take any Approved Actions the terms and conditions hereof including the delivery by the Lender of those documents set forth in Section 4.3, deliver or cause to execute, record and encumber any Site(s) with New Permitted Encumbrances, be delivered to the Lender the documents required of the Agency by Section 4.2 hereof and (ii) the Lender will, subject to the terms and conditions hereof, accept such actions delivery and pay or cause to be paid the Purchase Price of the Series 2019A Bonds as set forth in Section 2.2 hereof by wire transfer in immediately available funds to the order of the Agency (all of the foregoing described transactions are herein called the “Final Closing”). Delivery and payment as aforesaid shall be made at such place as may be mutually agreed upon by the Agency and Lender. If the Agency is unable, as of the Final Closing Date, to satisfy the conditions set forth in Sections 4.1 and 4.2 herein or if the immediately preceding clause obligations of the Lender to accept delivery and pay the Purchase Price for the Series 2019A Bonds is terminated for any reason permitted by this Agreement, then this Agreement will terminate and neither party will be under any further obligation hereunder, except that the Agency shall be obligated to pay the Lender on demand the Breakage Fee calculated in accordance with the Breakage Fee Provisions set forth in Exhibit D hereto. Notwithstanding the foregoing, if the only condition to Final Closing unable to be satisfied by the Agency as of the Final Closing Date is to deliver to the Lender a Bond Counsel’s Opinion required in Section 4.2, which Bond Counsel is unable to provide as to the interest on the Series 2019A Bonds being excludable from gross income for federal income tax purposes due solely to a Tax Law Change, then the Agency shall have the option (i) shall in no event be a default, breach or violation of this Contract or this paragraph. Any violation of this paragraph shall be a default by Seller for which, regardless of any other provision of this Contract, Purchaser shall be entitled to any issue and all remedies at law or in equity, including, without limitation, consequential and punitive damages; provided, however, that Purchaser may only pursue such remedies if Seller fails to cure such violation by causing such matter to be paid in full and released, bonded around or otherwise cured within five (5) business days following Seller’s receipt of written notice from Purchaser regarding such violation.
(c) Upon receipt of a Final Closing Notice, Seller and Purchaser shall have a period of five (5) business days (deliver the “Objection Period”) in which to deliver a written objection notice (an “Objection Notice”) Series 2019A Bonds to the other party and Lender bearing interest at the Title Company; provided that Seller or Purchaser may only deliver an Objection Notice if either (i) the Final Closing Condition for the applicable Site(s) has not been satisfied Taxable Rate or (ii) such party reasonably believes that there is a mistake in terminate the Updated Commitment(s) or Updated Deed(s) for the applicable Site(s); and provided further that neither party may deliver an Objection Notice based on the inclusion of any Permitted Encumbrance or New Permitted Encumbrance (defined below) on the Updated Title Commitment(s) or Updated Deed(s) for the applicable Site(s). Notwithstanding anything Agreement subject to the contraryBreakage Fee Provisions set forth in Exhibit D. Furthermore, notwithstanding the foregoing, if either party delivers an improper Objection Notice or without a reasonable basis for doing sothe Lender is unable, such party shall be responsible for all costs incurred by the other party as a result thereof, including reasonable attorneys’ fees and court costs. If the Title Company does not receive an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the “Final Closing” for the Site(s) covered by such Final Closing Notice will be deemed to have occurred on the expiration of the applicable Objection Period (the “Actual Final Closing Date” for such Site(s)) and , to satisfy the parties shall promptly take conditions set forth in Section 4.3 or fails to purchase the following actions following Series 2019A Bonds on the expiration of the Objection Period (collectively, the “Final Closing Actions”):
(1) The Title Company shall date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the Actual Final Closing Date for any reason for which it is not permitted to do so hereunder, then this Agreement will terminate and neither party will be under any further obligation hereunder, except that the Lender shall be obligated to pay the Agency on demand the Breakage Fee calculated in accordance with the Breakage Fee Provisions set forth in Exhibit D hereto. The Breakage Fee, paid by either party as applicable, shall serve as full liquidated damages hereunder for such Site(s), failure or any defaults hereunder on the part of such party obligated to pay the Breakage Fee and record such documents in once paid shall constitute a full release and discharge of all claims by the Real Property Records receiving party arising out of the proper County in which the respective Site(s) are located.
(2) The Title Company shall date each of the applicable Updated Deed(s) to be effective as of the Actual Final Closing Date for such Site(s) and record such Updated Deeds in the Real Property Records of the proper County in which the respective Site(s) are located.
(3) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are locatedtransactions contemplated hereby. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of an Amendment to Permanent Lease (each an “Amendment to Permanent Lease”) and a Memorandum of Amendment to Permanent Lease (each a “Memorandum of Amendment to Permanent Lease”), both in a form reasonably acceptable to Seller and Purchaser, and pursuant to which the Site(s) covered by such Final Closing are added as part of the Property covered Breakage Fee is not paid by the Permanent Leaseapplicable party when due, with the effective date of the Permanent Lease as to such newly added Site(s) being the date amount of such Final Closing. The Title Company shall date each Memorandum of Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s) and record such Memorandum of Amendment to Permanent Lease in the Real Property Records of the County in which the respective Site(s) are located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Permanent Lease, and deliver one original counterpart of such Permanent Lease to both Seller and Purchaser. If the Final Closing has previously occurred for any of the other Sites, the Title Company shall date the Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Amendment to Permanent Lease, and deliver one original counterpart of such Amendment to Permanent Lease to both Seller and Purchaser.
(5) If the Final Closing has occurred for all Sites, then the Title Company shall record one original counterpart of the Release of Memorandum in the Real Property Records of Tarrant, Johnson, Dallas and ▇▇▇▇▇ Counties, Texas.
(6) The Title Company shall release the Escrowed Funds for the purpose of paying the expenses shown payment will bear interest payable on the settlement statements, including any title premium for the Owner Policies covering the applicable Site(s) to the extent such premium was escrowed as part of the Escrowed Funds (subject to and as applicable pursuant to Section 6(b)(5) above) and the recording fees for the applicable Site(s).
(7) The Title Company shall issue to Purchaser the Owner Policies covering the applicable Site(s) subject only to the exceptions shown on the applicable Updated Title Commitment(s) (subject to and as applicable pursuant to Section 6(b)(5) above). Purchaser may purchasedemand, at its expense, any title insurance coverage in excess of that provided in the Owner Policies by the Title CompanyDefault Rate.
(8) In the event that Final Closing has occurred for all Sites which have not, as of such date, been included in a Deletion Notice pursuant to Section 7(f) below, and all expenses and prorations for all such remaining Sites have been paid including, without limitation, all recording fees, then the Title Company shall refund any remaining Escrowed Funds to Seller. Notwithstanding anything to the contrary, in the event that the Escrowed Funds are not sufficient to cover all expenses in connection with the Final Closing(s), Seller and Purchaser shall promptly deliver to the Title Company any additional funds necessary for the Final Closing(s) (“Additional Final Closing Expenses”), with Seller and Purchaser each being responsible for the same proportional amount of each type of Additional Final Closing Expenses for which such party was originally responsible at the Preliminary Closing pursuant to this Contract. Seller and Purchaser shall pay to the Title Company such party’s proportionate share of Additional Final Closing Expenses within ten (10) days after such party’s receipt of a written notice from the Title Company setting forth the amount owed.
(9) Upon completion of the Final Closing for each Site, Seller shall deliver to Purchaser possession of such Site, subject to the applicable Permanent Lease.
(d) If the Title Company receives an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the Title Company shall not take any further action with regard to the Final Closing Actions for the Site(s) affected by such Objection Notice until the earlier of: (x) directed to do so in writing by Seller and Purchaser or (xx) a determination is made by a court of competent jurisdiction that the Final Closing Condition for such affected Site(s) has been satisfied or (xxx) the Outside Final Closing Deadline. If an Objection Notice for any Site is based on a mistake in the Updated Title Commitment or the Updated Deed for such Site, Seller and Buyer hereby agree to work with the Title Company to correct such mistake and to authorize the Title Company to proceed with the Final Closing Actions for such Site promptly after the mistake is corrected.
(e) The “Outside Final Closing Deadline” shall be September 30, 2009; provided, however, Seller shall have the right to extend the Outside Final Closing Deadline for up to two (2) consecutive 30-day periods by providing written notice to Purchaser on or before the Outside Final Closing Deadline, as such may be extended hereunder.
(f) Notwithstanding anything to the contrary, in the event that Seller reasonably determines that, despite Seller’s commercially reasonable best efforts, it will not be able to obtain an approved Plat or otherwise satisfy the Final Closing Condition for one or more Site(s) prior to the Outside Final Closing Deadline, then Seller may elect to delete such Site(s) (each a “Deleted Site” and collectively, the “Deleted Sites”) from the sale by taking the following actions on or before the Outside Final Closing Deadline: (i) providing a written notice (“Deletion Notice”) to Purchaser and the Title Company, which Deletion Notice shall include a detailed description of the reason that Seller was not able to satisfy the Final Closing Condition for such Site(s), and (ii) delivering to the Title Company an amount equal to the product of the number of deleted Sites covered by such Deletion Notice, multiplied by $1,302,857.14 (the “Deletion Repayment”). Notwithstanding anything to the contrary, (i) Seller may delete no more than twelve (12) Sites pursuant to this Section 7(f) or pursuant to any other express provision of this Contract and (ii) as a condition precedent to Seller’s right to delete a Site, Seller must have unconditionally delivered the Deletion Repayment to the Title Company and Title Company must have unconditionally delivered the Deletion Repayment to Purchaser. Promptly following the Title Company’s receipt of a Deletion Notice, the Title Company shall take the following actions (collectively, “Deletion Actions”):
(1) Date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the date of the Deletion Notice for such Deleted Site(s), and record such documents in the Real Property Records of the proper County in which the respective Deleted Site(s) are located.
(2) Release the Deletion Repayment to Purchaser.
(3) Do not record, but rather, release the applicable Preliminary Deed, back to Seller so that Seller can destroy same, and do not include such Deleted Site(s) in Exhibit “A” to the Permanent Lease.
(4) Re-calculate the prorated taxes and other expenses set forth on the settlement statements issued at the Preliminary Closing, and tender any reimbursements resulting therefrom to the appropriate party. Notwithstanding anything to the contrary, Seller shall promptly pay any additional amounts owed by Seller as shown on the revised settlement statements as a result of such deletion, and Purchaser shall in no event be responsible for any additional expenses as a result of such deletion. Following the completion of the Deletion Actions, Purchaser shall have no further right, title or interest in and to the Deleted Site(s). Additionally, Purchaser may retain the portion of any previously paid rent applicable to the period between the Preliminary Closing and the date of such Deletion Notice.
(g) If the Final Closing for a particular Site occurs prior to the Outside Final Closing Deadline, then the closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Actual Final Closing Date for such Site.
(h) In the event that, as of the Outside Final Closing Deadline, the Final Closing Condition for any Site has not been satisfied and Seller has not deleted such Site from the conveyance pursuant to Section 7(f) above, then:
(1) The Actual Final Closing Date and the Final Closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Outside Final Closing Deadline.
(2) The Title Company shall date the applicable Partial Termination of Master Lease and Partial Termination of Sublease for such Site as of the Outside Final Closing Deadline, and record such documents in the Real Property Records of the proper County in which the Site are located.
(3) The Title Company shall date the applicable Preliminary Deed to be effective as of the Outside Final Closing Deadline for such Site and record such Preliminary Deed in the Real Property Records of the proper County in which the Site is located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of
Appears in 1 contract
Final Closing. (a) Upon satisfaction The closing of the Final Closing Condition (defined below) for one or more Sites, Seller or Purchaser may deliver written notice of such satisfaction (a “Platting Completion Notice”) to the other party and the Title Company. In order for a notice from Seller or Purchaser to be considered a Platting Completion Notice, it must clearly state the words “Platting Completion Notice” at the top of such notice. To the extent that the other party and the Title Company do not already have such materials, the Platting Completion Notice shall include copies exchange of the recorded Plat and the final Survey, if any, Exchanged Notes for each Site covered by such Platting Completion Notice (to the extent that the party sending the Platting Completion Notice has such materials). Promptly following the Title Company’s receipt of a Platting Completion Notice, the Title Company shall, without the need for any further instruction, promptly take the following actions:
(1) Issue to Seller and Purchaser updated Title Commitment(s) (each an “Updated Title Commitment” and collectively, the “Updated Title Commitments”) for the applicable Site(s) covered by such Platting Completion Notice, which reference the recorded Plat(s) for the applicable Site(s) in the legal description for such Site(s) (each an “Updated Legal Description” and collectively, the “Updated Legal Descriptions”). Purchaser shall have the right to elect to instruct the Title Company to either include all of the Sites on a single Updated Title Commitment or to include one or more Sites on multiple Updated Title Commitments.
(2) Replace the Preliminary Legal Description attached as Exhibit “A” to the applicable Preliminary Deed(s) with the respective Updated Legal Description for the applicable Site(s) and add any New Permitted Encumbrances appearing on the Updated Title Commitments or the Surveys, if any, to the list of Permitted Encumbrances attached as Exhibit “B” to the applicable Preliminary Deed(s). After each Preliminary Deed has been revised pursuant to Shares under this Section 7(a)(2), it shall be deemed an “Updated Deed”.
(3) As soon as practicable after the Title Company receives a Platting Completion Notice, and prepares all of the applicable Updated Title Commitment(s) and all of the Updated Deed(s), the Title Company shall deliver written notice of such to Seller and Purchaser Agreement (the “Final Closing NoticeClosing”). The Final Closing Notice ) shall include copies take place at the earlier of all of the applicable Updated Title Commitment(s) and all of the applicable Updated Deed(s).
(b) Notwithstanding anything contained in this Contract to the contrary, during the period between the Preliminary Closing and the Final Closing for a Site, in no event shall Seller or its affiliates encumber, pledge, assign or transfer, by operation of law or otherwise, a Site or all or any portion of the Land or its interest therein; provided, however, that (i) Seller shall have 366 calendar days after the express right to take any Approved Actions and to execute, record and encumber any Site(s) with New Permitted Encumbrances, initial settlement of the Qualified Public Offering and (ii) such actions described if capacity exists for Shares to be issued without triggering any change of control restrictions under applicable U.S. Department of Education regulations or with respect to U.S. accreditors (to be determined by the Company in good faith as of the respective dates of the events specified in the immediately preceding clause following clauses (ix) shall and (y)), at the earlier of (x) 180 days after the initial settlement of the Qualified Public Offering, (y) the release of Wengen Alberta, Limited Partnership (“Wengen”), and/or International Finance Corporation (“IFC”), a member of the World Bank Group, the IFC Africa, Latin American and Caribbean Fund, LP and the Korea Investment Corporation (collectively with IFC, the “IFC Investors”), from the restriction on transfers set forth in no event any lock-up agreements entered into in connection with the Qualified Public Offering or (z) such earlier date after the Qualified Public Offering as may be a default, breach or violation of this Contract or this paragraphdetermined by the Company in its sole discretion. Any violation of this paragraph shall be a default by Seller for which, regardless of any other provision of this Contract, Purchaser shall be entitled The Company will provide written notice to any and all remedies the Undersigned at law or in equity, including, without limitation, consequential and punitive damages; provided, however, that Purchaser may only pursue such remedies if Seller fails to cure such violation by causing such matter to be paid in full and released, bonded around or otherwise cured within five (5) least six business days following Seller’s receipt in advance of written notice from Purchaser regarding such violation.
(c) Upon receipt of a the Final Closing NoticeClosing. At the Final Closing, Seller and Purchaser shall have a period of five (5) business days (the “Objection Period”) in which to deliver a written objection notice (an “Objection Notice”) to the other party and the Title Company; provided that Seller or Purchaser may only deliver an Objection Notice if either (i) the Final Closing Condition for the applicable Site(s) has Undersigned will cause each Holder, severally and not been satisfied jointly, to deliver or (ii) such party reasonably believes that there is a mistake in the Updated Commitment(s) or Updated Deed(s) for the applicable Site(s); and provided further that neither party may deliver an Objection Notice based on the inclusion of any Permitted Encumbrance or New Permitted Encumbrance (defined below) on the Updated Title Commitment(s) or Updated Deed(s) for the applicable Site(s). Notwithstanding anything cause to be delivered to the contrary, if either party delivers an improper Objection Notice or without a reasonable basis for doing so, such party shall be responsible for Company all costs incurred by the other party as a result thereof, including reasonable attorneys’ fees and court costs. If the Title Company does not receive an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the “Final Closing” for the Site(s) covered by such Final Closing Notice will be deemed to have occurred on the expiration of the applicable Objection Period (the “Actual Final Closing Date” for such Site(s)) and the parties shall promptly take the following actions following the expiration of the Objection Period (collectively, the “Final Closing Actions”):
(1) The Title Company shall date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the Actual Final Closing Date for such Site(s), and record such documents in the Real Property Records of the proper County in which the respective Site(s) are located.
(2) The Title Company shall date each of the applicable Updated Deed(s) to be effective as of the Actual Final Closing Date for such Site(s) and record such Updated Deeds in the Real Property Records of the proper County in which the respective Site(s) are located.
(3) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of an Amendment to Permanent Lease (each an “Amendment to Permanent Lease”) and a Memorandum of Amendment to Permanent Lease (each a “Memorandum of Amendment to Permanent Lease”), both in a form reasonably acceptable to Seller and Purchaser, and pursuant to which the Site(s) covered by such Final Closing are added as part of the Property covered by the Permanent Lease, with the effective date of the Permanent Lease as to such newly added Site(s) being the date of such Final Closing. The Title Company shall date each Memorandum of Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s) and record such Memorandum of Amendment to Permanent Lease in the Real Property Records of the County in which the respective Site(s) are located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Permanent Lease, and deliver one original counterpart of such Permanent Lease to both Seller and Purchaser. If the Final Closing has previously occurred for any of the other Sites, the Title Company shall date the Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Amendment to Permanent Lease, and deliver one original counterpart of such Amendment to Permanent Lease to both Seller and Purchaser.
(5) If the Final Closing has occurred for all Sites, then the Title Company shall record one original counterpart of the Release of Memorandum in the Real Property Records of Tarrant, Johnson, Dallas and ▇▇▇▇▇ Counties, Texas.
(6) The Title Company shall release the Escrowed Funds for the purpose of paying the expenses shown on the settlement statements, including any title premium for the Owner Policies covering the applicable Site(s) to the extent such premium was escrowed as part of the Escrowed Funds (subject to and as applicable pursuant to Section 6(b)(5) above) and the recording fees for the applicable Site(s).
(7) The Title Company shall issue to Purchaser the Owner Policies covering the applicable Site(s) subject only to the exceptions shown on the applicable Updated Title Commitment(s) (subject to and as applicable pursuant to Section 6(b)(5) above). Purchaser may purchase, at its expense, any title insurance coverage in excess of that provided in the Owner Policies by the Title Company.
(8) In the event that Final Closing has occurred for all Sites which have not, as of such date, been included in a Deletion Notice pursuant to Section 7(f) below, and all expenses and prorations for all such remaining Sites have been paid including, without limitation, all recording fees, then the Title Company shall refund any remaining Escrowed Funds to Seller. Notwithstanding anything to the contrary, in the event that the Escrowed Funds are not sufficient to cover all expenses in connection with the Final Closing(s), Seller and Purchaser shall promptly deliver to the Title Company any additional funds necessary for the Final Closing(s) (“Additional Final Closing Expenses”), with Seller and Purchaser each being responsible for the same proportional amount of each type of Additional Final Closing Expenses for which such party was originally responsible at the Preliminary Closing pursuant to this Contract. Seller and Purchaser shall pay to the Title Company such party’s proportionate share of Additional Final Closing Expenses within ten (10) days after such party’s receipt of a written notice from the Title Company setting forth the amount owed.
(9) Upon completion of the Final Closing for each Site, Seller shall deliver to Purchaser possession of such Site, subject to the applicable Permanent Lease.
(d) If the Title Company receives an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the Title Company shall not take any further action with regard to the Final Closing Actions for the Site(s) affected by such Objection Notice until the earlier of: (x) directed to do so in writing by Seller and Purchaser or (xx) a determination is made by a court of competent jurisdiction that the Final Closing Condition for such affected Site(s) has been satisfied or (xxx) the Outside Final Closing Deadline. If an Objection Notice for any Site is based on a mistake in the Updated Title Commitment or the Updated Deed for such Site, Seller and Buyer hereby agree to work with the Title Company to correct such mistake and to authorize the Title Company to proceed with the Final Closing Actions for such Site promptly after the mistake is corrected.
(e) The “Outside Final Closing Deadline” shall be September 30, 2009; provided, however, Seller shall have the right to extend the Outside Final Closing Deadline for up to two (2) consecutive 30-day periods by providing written notice to Purchaser on or before the Outside Final Closing Deadline, as such may be extended hereunder.
(f) Notwithstanding anything to the contrary, in the event that Seller reasonably determines that, despite Seller’s commercially reasonable best efforts, it will not be able to obtain an approved Plat or otherwise satisfy the Final Closing Condition for one or more Site(s) prior to the Outside Final Closing Deadline, then Seller may elect to delete such Site(s) (each a “Deleted Site” and collectively, the “Deleted Sites”) from the sale by taking the following actions on or before the Outside Final Closing Deadline: (i) providing a written notice (“Deletion Notice”) to Purchaser and the Title Company, which Deletion Notice shall include a detailed description of the reason that Seller was not able to satisfy the Final Closing Condition for such Site(s), and (ii) delivering to the Title Company an amount equal to the product of the number of deleted Sites covered by such Deletion Notice, multiplied by $1,302,857.14 (the “Deletion Repayment”). Notwithstanding anything to the contrary, (i) Seller may delete no more than twelve (12) Sites pursuant to this Section 7(f) or pursuant to any other express provision of this Contract and (ii) as a condition precedent to Seller’s right to delete a Site, Seller must have unconditionally delivered the Deletion Repayment to the Title Company and Title Company must have unconditionally delivered the Deletion Repayment to Purchaser. Promptly following the Title Company’s receipt of a Deletion Notice, the Title Company shall take the following actions (collectively, “Deletion Actions”):
(1) Date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the date of the Deletion Notice for such Deleted Site(s), and record such documents in the Real Property Records of the proper County in which the respective Deleted Site(s) are located.
(2) Release the Deletion Repayment to Purchaser.
(3) Do not record, but rather, release the applicable Preliminary Deed, back to Seller so that Seller can destroy same, and do not include such Deleted Site(s) in Exhibit “A” to the Permanent Lease.
(4) Re-calculate the prorated taxes and other expenses set forth on the settlement statements issued at the Preliminary Closing, and tender any reimbursements resulting therefrom to the appropriate party. Notwithstanding anything to the contrary, Seller shall promptly pay any additional amounts owed by Seller as shown on the revised settlement statements as a result of such deletion, and Purchaser shall in no event be responsible for any additional expenses as a result of such deletion. Following the completion of the Deletion Actions, Purchaser shall have no further right, title and interest in and to its Exchanged Notes, as specified on Exhibit A hereto, free and clear of any Liens, together with any documents of conveyance or transfer that the Company may reasonably deem necessary or desirable to transfer to and confirm in the Company all right, title and interest in and to the Deleted Site(s). AdditionallyExchanged Notes, Purchaser may retain the portion free and clear of any previously paid rent applicable Liens and (ii) the Company shall deliver (A) the Shares, which shares shall be uncertificated, and (B) cash for the interest accrued with respect to the period between the Preliminary Closing and the date of such Deletion Notice.
(g) If Exchanged Notes to, but excluding, the Final Closing for a particular Site occurs prior to the Outside Final Closing Deadline, then the closing Closing. The cancellation of the sale and purchase of such Site shall, for all purposes, Exchanged Notes shall be deemed effected via DTC’s DWAC service pursuant to have occurred on instructions provided by the Actual Final Closing Date for such Site.
(h) In the event thatCompany. Each Holder will be deemed, as of the Outside Final Closing Deadline, date scheduled to be the Final Closing Condition for any Site has not been satisfied and Seller has not deleted such Site from Date, to be the conveyance pursuant holder of record of the Shares to Section 7(f) above, then:
(1) The Actual Final Closing Date and be delivered to it on the Final Closing Date, regardless of the sale and purchase date such Shares are actually so delivered. No Share will bear or otherwise be subject to any legend restricting its transfer, including any legend referring to registration under the Securities Act of such Site shall1933, for all purposesas amended (the “Securities Act”), be deemed except that any Shares issued to have occurred on the Outside Final Closing Deadline.
an Affiliate (2as defined below) The Title Company shall date the applicable Partial Termination of Master Lease and Partial Termination of Sublease for such Site as of the Outside Final Closing Deadline, and record such documents in the Real Property Records of the proper County in which the Site are locatedCompany will contain an “affiliate” restrictive legend.
(3) The Title Company shall date the applicable Preliminary Deed to be effective as of the Outside Final Closing Deadline for such Site and record such Preliminary Deed in the Real Property Records of the proper County in which the Site is located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of
Appears in 1 contract
Final Closing. (a) Upon satisfaction Subject to the terms and conditions of this Agreement, the purchase and sale of the Final Closing Condition Class B Units in the Company, comprised of the Common Units with Percentage Interest of fifty-one percent (defined below51%) for one (the “51% Interest” or more Sites, Seller or Purchaser may deliver written notice of such satisfaction (a the “Platting Completion NoticeClass B Units”) to the other party and the Title Company. In order for shall take place at a notice from Seller or Purchaser to be considered a Platting Completion Notice, it must clearly state the words “Platting Completion Notice” at the top of such notice. To the extent that the other party and the Title Company do not already have such materials, the Platting Completion Notice shall include copies of the recorded Plat and the final Survey, if any, for each Site covered by such Platting Completion Notice (to the extent that the party sending the Platting Completion Notice has such materials). Promptly following the Title Company’s receipt of a Platting Completion Notice, the Title Company shall, without the need for any further instruction, promptly take the following actions:
(1) Issue to Seller and Purchaser updated Title Commitment(s) (each an “Updated Title Commitment” and collectively, the “Updated Title Commitments”) for the applicable Site(s) covered by such Platting Completion Notice, which reference the recorded Plat(s) for the applicable Site(s) in the legal description for such Site(s) (each an “Updated Legal Description” and collectively, the “Updated Legal Descriptions”). Purchaser shall have the right to elect to instruct the Title Company to either include all of the Sites on a single Updated Title Commitment or to include one or more Sites on multiple Updated Title Commitments.
(2) Replace the Preliminary Legal Description attached as Exhibit “A” to the applicable Preliminary Deed(s) with the respective Updated Legal Description for the applicable Site(s) and add any New Permitted Encumbrances appearing on the Updated Title Commitments or the Surveys, if any, to the list of Permitted Encumbrances attached as Exhibit “B” to the applicable Preliminary Deed(s). After each Preliminary Deed has been revised pursuant to this Section 7(a)(2), it shall be deemed an “Updated Deed”.
(3) As soon as practicable after the Title Company receives a Platting Completion Notice, and prepares all of the applicable Updated Title Commitment(s) and all of the Updated Deed(s), the Title Company shall deliver written notice of such to Seller and Purchaser closing (the “Final Closing Notice”). The Final Closing Notice shall include copies of all of the applicable Updated Title Commitment(s) and all of the applicable Updated Deed(s).
(b) Notwithstanding anything contained in this Contract to the contrary, during the period between the Preliminary Closing and the Final Closing for a Site, in no event shall Seller or its affiliates encumber, pledge, assign or transfer, by operation of law or otherwise, a Site or all or any portion of the Land or its interest therein; provided, however, that (i) Seller shall have the express right to take any Approved Actions and to execute, record and encumber any Site(s) with New Permitted Encumbrances, and (ii) such actions described in the immediately preceding clause (i) shall in no event be a default, breach or violation of this Contract or this paragraph. Any violation of this paragraph shall be a default by Seller for which, regardless of any other provision of this Contract, Purchaser shall be entitled to any and all remedies at law or in equity, including, without limitation, consequential and punitive damages; provided, however, that Purchaser may only pursue such remedies if Seller fails to cure such violation by causing such matter to be paid in full and released, bonded around or otherwise cured within five (5) business days following Seller’s receipt of written notice from Purchaser regarding such violation.
(c) Upon receipt of a Final Closing Notice, Seller and Purchaser shall have a period of five (5) business days (the “Objection PeriodClosing”) in which to deliver a written objection notice (an “Objection Notice”) to the other party and the Title Company; provided that Seller or Purchaser may only deliver an Objection Notice if either (i) the Final Closing Condition for the applicable Site(s) has not been satisfied or (ii) such party reasonably believes that there is a mistake in the Updated Commitment(s) or Updated Deed(s) for the applicable Site(s); and provided further that neither party may deliver an Objection Notice based on the inclusion of any Permitted Encumbrance or New Permitted Encumbrance (defined below) on the Updated Title Commitment(s) or Updated Deed(s) for the applicable Site(s). Notwithstanding anything to the contrary, if either party delivers an improper Objection Notice or without a reasonable basis for doing so, such party shall be responsible for all costs incurred by the other party as a result thereof, including reasonable attorneys’ fees and court costs. If the Title Company does not receive an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the “Final Closing” for the Site(s) covered by such Final Closing Notice will be deemed to have occurred on the expiration of the applicable Objection Period (the “Actual Final Closing Date” for such Site(s)) and the parties shall promptly take the following actions following the expiration of the Objection Period (collectively, the “Final Closing Actions”):
(1) The Title Company shall date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the Actual Final Closing Date for such Site(s), and record such documents in the Real Property Records of the proper County in which the respective Site(s) are located.
(2) The Title Company shall date each of the applicable Updated Deed(s) to be effective as of the Actual Final Closing Date for such Site(s) and record such Updated Deeds in the Real Property Records of the proper County in which the respective Site(s) are located.
(3) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company no later than two (2) counterparts days after the conditions set forth in Section 1.4 have been satisfied or waived, at the offices of an Amendment to Permanent Lease Seller’s counsel, or remotely by exchange of documents and signatures (each an “Amendment to Permanent Lease”) and a Memorandum of Amendment to Permanent Lease (each a “Memorandum of Amendment to Permanent Lease”or their electronic counterparts), both in a form reasonably acceptable to or at such other time or on such other date or at such other place as Seller and Purchaser, and pursuant to which the Site(s) covered by such Final Closing are added as part of the Property covered by the Permanent Lease, with the effective date of the Permanent Lease as to such newly added Site(s) being the date of such Final Closing. The Title Company shall date each Memorandum of Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s) and record such Memorandum of Amendment to Permanent Lease in the Real Property Records of the County in which the respective Site(s) are located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Permanent Lease, and deliver one original counterpart of such Permanent Lease to both Seller and Purchaser. If the Final Closing has previously occurred for any of the other Sites, the Title Company shall date the Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Amendment to Permanent Lease, and deliver one original counterpart of such Amendment to Permanent Lease to both Seller and Purchaser.
(5) If the Final Closing has occurred for all Sites, then the Title Company shall record one original counterpart of the Release of Memorandum in the Real Property Records of Tarrant, Johnson, Dallas and ▇▇▇▇▇ Counties, Texas.
may mutually agree upon in writing (6) The Title Company shall release the Escrowed Funds for day on which the purpose of paying Final Closing takes place being the expenses shown on the settlement statements, including any title premium for the Owner Policies covering the applicable Site(s) to the extent such premium was escrowed as part of the Escrowed Funds (subject to and as applicable pursuant to Section 6(b)(5) above) and the recording fees for the applicable Site(s).
(7) The Title Company shall issue to Purchaser the Owner Policies covering the applicable Site(s) subject only to the exceptions shown on the applicable Updated Title Commitment(s) (subject to and as applicable pursuant to Section 6(b)(5) above“Final Closing Date”). Purchaser may purchaseThe representations, at its expensewarranties, any title insurance coverage in excess of that provided in the Owner Policies by the Title Company.
(8) In the event that Final Closing has occurred for all Sites which have not, as of such date, been included in a Deletion Notice pursuant to Section 7(f) belowcovenants, and all expenses and prorations for all such remaining Sites have been paid including, without limitation, all recording fees, then the Title Company shall refund any remaining Escrowed Funds to Seller. Notwithstanding anything to the contrary, in the event that the Escrowed Funds are not sufficient to cover all expenses in connection with the Final Closing(s), Seller and Purchaser shall promptly deliver to the Title Company any additional funds necessary for the Final Closing(s) (“Additional Final Closing Expenses”), with Seller and Purchaser each being responsible for the same proportional amount of each type of Additional Final Closing Expenses for which such party was originally responsible at the Preliminary Closing pursuant to this Contract. Seller and Purchaser shall pay to the Title Company such party’s proportionate share of Additional Final Closing Expenses within ten (10) days after such party’s receipt of agreements will be made on a written notice from the Title Company setting forth the amount owed.
(9) Upon completion mutatis mutandis basis as of the Final Closing for each Site, Seller shall deliver to Purchaser possession of such SiteDate, subject in each case only to those changes necessary to conform each such representation, warranty, covenant, and agreement to reflect valid changes in the applicable Permanent Lease.
(d) If the Title Company receives an Objection Notice from Seller or Purchaser prior to the expiration ownership of Units of the Objection Period, then Company as a result of the Title Company shall not take any further action with regard Initial Closing. It is understood and agreed that by transferring the 51% Interest to Buyer on the Final Closing Actions for Date, Buyer will become the Site(ssole owner of the Company which owns all of the Permits and Regulated Assets, including the customer base of Buyer and all assets, tangible or intangible, as described in the Recitals above without limitation, including the Business, but excluding assets such as any interests in real estate, the receivables arising or payable by Company’s customers as of the Effective Date and receivables arising or payable by customers of the Company (including any amounts due under the ACP or other Regulated Assets relating to such customers) affected by such Objection Notice until and Seller pursuant to and as described in the earlier of: Master Distribution Agreement and Management Agreement, or other assets which are listed in Schedule 1.1 (xthe “Excluded Assets”) directed to do so in writing which will be transferred from the Company to, and fully assumed by, Seller or another Person designated by Seller and Purchaser or (xx) a determination is made by a court within 30 days of competent jurisdiction that the Final Initial Closing Condition for such affected Site(s) has been satisfied or (xxx) the Outside Final Closing Deadline. If an Objection Notice for any Site is based on a mistake in the Updated Title Commitment or the Updated Deed for such Site, Seller and Buyer hereby agree to work with the Title Company to correct such mistake and to authorize the Title Company to proceed with the Final Closing Actions for such Site promptly after the mistake is corrected.
(e) The “Outside Final Closing Deadline” shall be September 30, 2009Date; provided, however, Seller all Liabilities arising from or in connection with such Excluded Assets shall have the right to extend the Outside Final Closing Deadline for up to two (2) consecutive 30-day periods by providing written notice to Purchaser on or before the Outside Final Closing Deadline, as such may be extended hereunder.
(f) Notwithstanding anything to the contrary, in the event that Seller reasonably determines that, despite Seller’s commercially reasonable best efforts, it will not be able to obtain an approved Plat or otherwise satisfy the Final Closing Condition for one or more Site(s) prior to the Outside Final Closing Deadline, then Seller may elect to delete such Site(s) (each a “Deleted Site” and collectively, the “Deleted Sites”) from the sale by taking the following actions on or before the Outside Final Closing Deadline: (i) providing a written notice (“Deletion Notice”) to Purchaser and the Title Company, which Deletion Notice shall include a detailed description of the reason that Seller was not able to satisfy the Final Closing Condition for such Site(s), and (ii) delivering to the Title Company an amount equal to the product of the number of deleted Sites covered by such Deletion Notice, multiplied by $1,302,857.14 (the “Deletion Repayment”). Notwithstanding anything to the contrary, (i) Seller may delete no more than twelve (12) Sites pursuant to this Section 7(f) or pursuant to any other express provision of this Contract and (ii) as a condition precedent to Seller’s right to delete a Site, Seller must have unconditionally delivered the Deletion Repayment to the Title Company and Title Company must have unconditionally delivered the Deletion Repayment to Purchaser. Promptly following the Title Company’s receipt of a Deletion Notice, the Title Company shall take the following actions (collectively, “Deletion Actions”):
(1) Date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the date of the Deletion Notice for such Deleted Site(s), and record such documents in the Real Property Records of the proper County in which the respective Deleted Site(s) are located.
(2) Release the Deletion Repayment to Purchaser.
(3) Do not record, but rather, release the applicable Preliminary Deed, back to Seller so that Seller can destroy same, and do not include such Deleted Site(s) in Exhibit “A” to the Permanent Lease.
(4) Re-calculate the prorated taxes and other expenses set forth on the settlement statements issued at the Preliminary Closing, and tender any reimbursements resulting therefrom to the appropriate party. Notwithstanding anything to the contrary, Seller shall promptly pay any additional amounts owed by Seller as shown on the revised settlement statements as a result of such deletion, and Purchaser shall in no event be responsible for any additional expenses as a result of such deletion. Following the completion of the Deletion Actions, Purchaser shall have no further right, title or interest in and to the Deleted Site(s). Additionally, Purchaser may retain the portion of any previously paid rent applicable to the period between the Preliminary Closing and the date of such Deletion Notice.
(g) If the Final Closing for a particular Site occurs prior to the Outside Final Closing Deadline, then the closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Actual Final Closing Date for such Site.
(h) In the event that, as of the Outside Final Closing Deadline, the Final Closing Condition for any Site has not been satisfied and Seller has not deleted such Site from the conveyance pursuant to Section 7(f) above, then:
(1) The Actual Final Closing Date and the Final Closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Outside Final Closing Deadline.
(2) The Title Company shall date the applicable Partial Termination of Master Lease and Partial Termination of Sublease for such Site as of the Outside Final Closing Deadline, and record such documents in the Real Property Records of the proper County in which the Site are located.
(3) The Title Company shall date the applicable Preliminary Deed continue to be effective as of the Outside Final Closing Deadline for such Site and record such Preliminary Deed in the Real Property Records of the proper County in which the Site is locatedExcluded Liabilities.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (KonaTel, Inc.)
Final Closing. (a) Upon satisfaction of the Final Closing Condition (defined below) for one On or more Sitesbefore 1:00 p.m., Seller Orlando, Florida time, on October 2, 2019, or Purchaser may deliver written notice of such satisfaction (a “Platting Completion Notice”) to the other party and the Title Company. In order for a notice from Seller or Purchaser to be considered a Platting Completion Notice, it must clearly state the words “Platting Completion Notice” at the top of such notice. To the extent that the other party and the Title Company do not already have such materials, the Platting Completion Notice shall include copies of the recorded Plat and the final Survey, if any, for each Site covered by such Platting Completion Notice (to other time on that date as may be mutually agreed upon by the extent that the party sending the Platting Completion Notice has such materials). Promptly following the Title Company’s receipt of a Platting Completion Notice, the Title Company shall, without the need for any further instruction, promptly take the following actions:
(1) Issue to Seller City and Purchaser updated Title Commitment(s) (each an “Updated Title Commitment” and collectively, the “Updated Title Commitments”) for the applicable Site(s) covered by such Platting Completion Notice, which reference the recorded Plat(s) for the applicable Site(s) in the legal description for such Site(s) (each an “Updated Legal Description” and collectively, the “Updated Legal Descriptions”). Purchaser shall have the right to elect to instruct the Title Company to either include all of the Sites on a single Updated Title Commitment or to include one or more Sites on multiple Updated Title Commitments.
(2) Replace the Preliminary Legal Description attached as Exhibit “A” to the applicable Preliminary Deed(s) with the respective Updated Legal Description for the applicable Site(s) and add any New Permitted Encumbrances appearing on the Updated Title Commitments or the Surveys, if any, to the list of Permitted Encumbrances attached as Exhibit “B” to the applicable Preliminary Deed(s). After each Preliminary Deed has been revised pursuant to this Section 7(a)(2), it shall be deemed an “Updated Deed”.
(3) As soon as practicable after the Title Company receives a Platting Completion Notice, and prepares all of the applicable Updated Title Commitment(s) and all of the Updated Deed(s), the Title Company shall deliver written notice of such to Seller and Purchaser Lender (the “Final Closing NoticeDate”). The Final Closing Notice shall include copies of all of the applicable Updated Title Commitment(s) and all of the applicable Updated Deed(s).
(b) Notwithstanding anything contained in this Contract to the contrary, during the period between the Preliminary Closing and the Final Closing for a Site, in no event shall Seller or its affiliates encumber, pledge, assign or transfer, by operation of law or otherwise, a Site or all or any portion of the Land or its interest therein; provided, however, that (i) Seller shall have the express right City will, subject to take any Approved Actions the terms and conditions hereof including the delivery by the Lender of those documents set forth in Section 4.3, deliver or cause to execute, record and encumber any Site(s) with New Permitted Encumbrances, be delivered to the Lender the documents required of the City by Section 4.2 hereof and (ii) the Lender will, subject to the terms and conditions hereof, accept such actions delivery and pay or cause to be paid the Purchase Price of the Series 2019A Bond as set forth in Section 2.2 hereof by wire transfer in immediately available funds to the order of the City (all of the foregoing described transactions are herein called the “Final Closing”). Delivery and payment as aforesaid shall be made at such place as may be mutually agreed upon by the City and Lender. If the City is unable, as of the Final Closing Date, to satisfy the conditions set forth in Sections 4.1 and 4.2 herein or if the immediately preceding clause obligations of the Lender to accept delivery and pay the Purchase Price for the Series 2019A Bond is terminated for any reason permitted by this Agreement, then this Agreement will terminate and neither party will be under any further obligation hereunder, except that the City shall be obligated to pay the Lender on demand the Breakage Fee calculated in accordance with the Breakage Fee Provisions set forth in Exhibit D hereto. Notwithstanding the foregoing, if the only condition to Final Closing unable to be satisfied by the City as of the Final Closing Date is to deliver to the Lender a Bond Counsel’s Opinion required in Section 4.2, which Bond Counsel is unable to provide as to the interest on the Series 2019A Bond being excludable from gross income for federal income tax purposes due solely to a Tax Law Change, then the City shall have the option (i) shall in no event be a default, breach or violation of this Contract or this paragraph. Any violation of this paragraph shall be a default by Seller for which, regardless of any other provision of this Contract, Purchaser shall be entitled to any issue and all remedies at law or in equity, including, without limitation, consequential and punitive damages; provided, however, that Purchaser may only pursue such remedies if Seller fails to cure such violation by causing such matter to be paid in full and released, bonded around or otherwise cured within five (5) business days following Seller’s receipt of written notice from Purchaser regarding such violation.
(c) Upon receipt of a Final Closing Notice, Seller and Purchaser shall have a period of five (5) business days (deliver the “Objection Period”) in which to deliver a written objection notice (an “Objection Notice”) Series 2019A Bond to the other party and Lender bearing interest at the Title Company; provided that Seller or Purchaser may only deliver an Objection Notice if either (i) the Final Closing Condition for the applicable Site(s) has not been satisfied Taxable Rate or (ii) such party reasonably believes that there is a mistake in terminate the Updated Commitment(s) or Updated Deed(s) for the applicable Site(s); and provided further that neither party may deliver an Objection Notice based on the inclusion of any Permitted Encumbrance or New Permitted Encumbrance (defined below) on the Updated Title Commitment(s) or Updated Deed(s) for the applicable Site(s). Notwithstanding anything Agreement subject to the contraryBreakage Fee Provisions set forth in Exhibit D. Furthermore, notwithstanding the foregoing, if either party delivers an improper Objection Notice or without a reasonable basis for doing sothe Lender is unable, such party shall be responsible for all costs incurred by the other party as a result thereof, including reasonable attorneys’ fees and court costs. If the Title Company does not receive an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the “Final Closing” for the Site(s) covered by such Final Closing Notice will be deemed to have occurred on the expiration of the applicable Objection Period (the “Actual Final Closing Date” for such Site(s)) and , to satisfy the parties shall promptly take conditions set forth in Section 4.3 or fails to purchase the following actions following Series 2019A Bond on the expiration of the Objection Period (collectively, the “Final Closing Actions”):
(1) The Title Company shall date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the Actual Final Closing Date for any reason for which it is not permitted to do so hereunder, then this Agreement will terminate and neither party will be under any further obligation hereunder, except that the Lender shall be obligated to pay the City on demand the Breakage Fee calculated in accordance with the Breakage Fee Provisions set forth in Exhibit D hereto. The Breakage Fee, paid by either party as applicable, shall serve as full liquidated damages hereunder for such Site(s), failure or any defaults hereunder on the part of such party obligated to pay the Breakage Fee and record such documents in once paid shall constitute a full release and discharge of all claims by the Real Property Records receiving party arising out of the proper County in which the respective Site(s) are located.
(2) The Title Company shall date each of the applicable Updated Deed(s) to be effective as of the Actual Final Closing Date for such Site(s) and record such Updated Deeds in the Real Property Records of the proper County in which the respective Site(s) are located.
(3) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are locatedtransactions contemplated hereby. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of an Amendment to Permanent Lease (each an “Amendment to Permanent Lease”) and a Memorandum of Amendment to Permanent Lease (each a “Memorandum of Amendment to Permanent Lease”), both in a form reasonably acceptable to Seller and Purchaser, and pursuant to which the Site(s) covered by such Final Closing are added as part of the Property covered Breakage Fee is not paid by the Permanent Leaseapplicable party when due, with the effective date of the Permanent Lease as to such newly added Site(s) being the date amount of such Final Closing. The Title Company shall date each Memorandum of Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s) and record such Memorandum of Amendment to Permanent Lease in the Real Property Records of the County in which the respective Site(s) are located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Permanent Lease, and deliver one original counterpart of such Permanent Lease to both Seller and Purchaser. If the Final Closing has previously occurred for any of the other Sites, the Title Company shall date the Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Amendment to Permanent Lease, and deliver one original counterpart of such Amendment to Permanent Lease to both Seller and Purchaser.
(5) If the Final Closing has occurred for all Sites, then the Title Company shall record one original counterpart of the Release of Memorandum in the Real Property Records of Tarrant, Johnson, Dallas and ▇▇▇▇▇ Counties, Texas.
(6) The Title Company shall release the Escrowed Funds for the purpose of paying the expenses shown payment will bear interest payable on the settlement statements, including any title premium for the Owner Policies covering the applicable Site(s) to the extent such premium was escrowed as part of the Escrowed Funds (subject to and as applicable pursuant to Section 6(b)(5) above) and the recording fees for the applicable Site(s).
(7) The Title Company shall issue to Purchaser the Owner Policies covering the applicable Site(s) subject only to the exceptions shown on the applicable Updated Title Commitment(s) (subject to and as applicable pursuant to Section 6(b)(5) above). Purchaser may purchasedemand, at its expense, any title insurance coverage in excess of that provided in the Owner Policies by the Title CompanyDefault Rate.
(8) In the event that Final Closing has occurred for all Sites which have not, as of such date, been included in a Deletion Notice pursuant to Section 7(f) below, and all expenses and prorations for all such remaining Sites have been paid including, without limitation, all recording fees, then the Title Company shall refund any remaining Escrowed Funds to Seller. Notwithstanding anything to the contrary, in the event that the Escrowed Funds are not sufficient to cover all expenses in connection with the Final Closing(s), Seller and Purchaser shall promptly deliver to the Title Company any additional funds necessary for the Final Closing(s) (“Additional Final Closing Expenses”), with Seller and Purchaser each being responsible for the same proportional amount of each type of Additional Final Closing Expenses for which such party was originally responsible at the Preliminary Closing pursuant to this Contract. Seller and Purchaser shall pay to the Title Company such party’s proportionate share of Additional Final Closing Expenses within ten (10) days after such party’s receipt of a written notice from the Title Company setting forth the amount owed.
(9) Upon completion of the Final Closing for each Site, Seller shall deliver to Purchaser possession of such Site, subject to the applicable Permanent Lease.
(d) If the Title Company receives an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the Title Company shall not take any further action with regard to the Final Closing Actions for the Site(s) affected by such Objection Notice until the earlier of: (x) directed to do so in writing by Seller and Purchaser or (xx) a determination is made by a court of competent jurisdiction that the Final Closing Condition for such affected Site(s) has been satisfied or (xxx) the Outside Final Closing Deadline. If an Objection Notice for any Site is based on a mistake in the Updated Title Commitment or the Updated Deed for such Site, Seller and Buyer hereby agree to work with the Title Company to correct such mistake and to authorize the Title Company to proceed with the Final Closing Actions for such Site promptly after the mistake is corrected.
(e) The “Outside Final Closing Deadline” shall be September 30, 2009; provided, however, Seller shall have the right to extend the Outside Final Closing Deadline for up to two (2) consecutive 30-day periods by providing written notice to Purchaser on or before the Outside Final Closing Deadline, as such may be extended hereunder.
(f) Notwithstanding anything to the contrary, in the event that Seller reasonably determines that, despite Seller’s commercially reasonable best efforts, it will not be able to obtain an approved Plat or otherwise satisfy the Final Closing Condition for one or more Site(s) prior to the Outside Final Closing Deadline, then Seller may elect to delete such Site(s) (each a “Deleted Site” and collectively, the “Deleted Sites”) from the sale by taking the following actions on or before the Outside Final Closing Deadline: (i) providing a written notice (“Deletion Notice”) to Purchaser and the Title Company, which Deletion Notice shall include a detailed description of the reason that Seller was not able to satisfy the Final Closing Condition for such Site(s), and (ii) delivering to the Title Company an amount equal to the product of the number of deleted Sites covered by such Deletion Notice, multiplied by $1,302,857.14 (the “Deletion Repayment”). Notwithstanding anything to the contrary, (i) Seller may delete no more than twelve (12) Sites pursuant to this Section 7(f) or pursuant to any other express provision of this Contract and (ii) as a condition precedent to Seller’s right to delete a Site, Seller must have unconditionally delivered the Deletion Repayment to the Title Company and Title Company must have unconditionally delivered the Deletion Repayment to Purchaser. Promptly following the Title Company’s receipt of a Deletion Notice, the Title Company shall take the following actions (collectively, “Deletion Actions”):
(1) Date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the date of the Deletion Notice for such Deleted Site(s), and record such documents in the Real Property Records of the proper County in which the respective Deleted Site(s) are located.
(2) Release the Deletion Repayment to Purchaser.
(3) Do not record, but rather, release the applicable Preliminary Deed, back to Seller so that Seller can destroy same, and do not include such Deleted Site(s) in Exhibit “A” to the Permanent Lease.
(4) Re-calculate the prorated taxes and other expenses set forth on the settlement statements issued at the Preliminary Closing, and tender any reimbursements resulting therefrom to the appropriate party. Notwithstanding anything to the contrary, Seller shall promptly pay any additional amounts owed by Seller as shown on the revised settlement statements as a result of such deletion, and Purchaser shall in no event be responsible for any additional expenses as a result of such deletion. Following the completion of the Deletion Actions, Purchaser shall have no further right, title or interest in and to the Deleted Site(s). Additionally, Purchaser may retain the portion of any previously paid rent applicable to the period between the Preliminary Closing and the date of such Deletion Notice.
(g) If the Final Closing for a particular Site occurs prior to the Outside Final Closing Deadline, then the closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Actual Final Closing Date for such Site.
(h) In the event that, as of the Outside Final Closing Deadline, the Final Closing Condition for any Site has not been satisfied and Seller has not deleted such Site from the conveyance pursuant to Section 7(f) above, then:
(1) The Actual Final Closing Date and the Final Closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Outside Final Closing Deadline.
(2) The Title Company shall date the applicable Partial Termination of Master Lease and Partial Termination of Sublease for such Site as of the Outside Final Closing Deadline, and record such documents in the Real Property Records of the proper County in which the Site are located.
(3) The Title Company shall date the applicable Preliminary Deed to be effective as of the Outside Final Closing Deadline for such Site and record such Preliminary Deed in the Real Property Records of the proper County in which the Site is located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of
Appears in 1 contract
Final Closing. (a) Upon satisfaction of the Final Closing Condition (defined below) for one or more Sites, Seller or Purchaser may deliver written notice of such satisfaction (a “Platting Completion Notice”) to the other party and the Title Company. In order for a notice from Seller or Purchaser to be considered a Platting Completion Notice, it must clearly state the words “Platting Completion Notice” at the top of such notice. To the extent that the other party and the Title Company do not already have such materials, the Platting Completion Notice shall include copies of the recorded Plat and the final Survey, if any, for each Site covered by such Platting Completion Notice (to the extent that the party sending the Platting Completion Notice has such materials). Promptly following the Title Company’s receipt of a Platting Completion Notice, the Title Company shall, without the need for any further instruction, promptly take the following actions:
(1) Issue to Seller and Purchaser updated Title Commitment(s) (each an “Updated Title Commitment” and collectively, the “Updated Title Commitments”) for the applicable Site(s) covered by such Platting Completion Notice, which reference the recorded Plat(s) for the applicable Site(s) in the legal description for such Site(s) (each an “Updated Legal Description” and collectively, the “Updated Legal Descriptions”). Purchaser shall have the right to elect to instruct the Title Company to either include all of the Sites on a single Updated Title Commitment or to include one or more Sites on multiple Updated Title Commitments.
(2) Replace the Preliminary Legal Description attached as Exhibit “A” to the applicable Preliminary Deed(s) with the respective Updated Legal Description for the applicable Site(s) and add any New Permitted Encumbrances appearing on the Updated Title Commitments or the Surveys, if any, to the list of Permitted Encumbrances attached as Exhibit “B” to the applicable Preliminary Deed(s). After each Preliminary Deed has been revised pursuant to this Section 7(a)(2), it shall be deemed an “Updated Deed”.
(3) As soon as practicable after the Title Company receives a Platting Completion Notice, and prepares all of the applicable Updated Title Commitment(s) and all of the Updated Deed(s), the Title Company shall deliver written notice of such to Seller and Purchaser (the “Final Closing Notice”). The Final Closing Notice shall include copies of all of take place on the applicable Updated Title Commitment(s) and all of next business day after the applicable Updated Deed(s).
(b) Notwithstanding anything contained in this Contract to the contrary, during the period between the Preliminary Closing and the Final Closing for a Site, in no event shall Seller or its affiliates encumber, pledge, assign or transfer, by operation of law or otherwise, a Site or all or any portion of the Land or its interest therein; provided, however, that (i) Seller shall have the express right to take any Approved Actions and to execute, record and encumber any Site(s) with New Permitted Encumbrances, and (ii) such actions described in the immediately preceding clause (i) shall in no event be a default, breach or violation of this Contract or this paragraph. Any violation of this paragraph shall be a default by Seller for which, regardless of any other provision of this Contract, Purchaser shall be entitled to any and all remedies at law or in equity, including, without limitation, consequential and punitive damages; provided, however, that Purchaser may only pursue such remedies if Seller fails to cure such violation by causing such matter to be paid in full and released, bonded around or otherwise cured within five (5) business days following Seller’s receipt of written notice from Purchaser regarding such violation.
(c) Upon receipt of a Final Closing Notice, Seller and Purchaser shall have a period of five (5) business days Reorganization is completed (the “Objection Period”) in which to deliver a written objection notice (an “Objection Notice”) to the other party and the Title Company; provided that Seller or Purchaser may only deliver an Objection Notice if either (i) the Final Closing Condition for the applicable Site(s) has not been satisfied or (ii) such party reasonably believes that there is a mistake in the Updated Commitment(s) or Updated Deed(s) for the applicable Site(s); and provided further that neither party may deliver an Objection Notice based on the inclusion of any Permitted Encumbrance or New Permitted Encumbrance (defined below) on the Updated Title Commitment(s) or Updated Deed(s) for the applicable Site(s). Notwithstanding anything to the contrary, if either party delivers an improper Objection Notice or without a reasonable basis for doing so, such party shall be responsible for all costs incurred by the other party as a result thereof, including reasonable attorneys’ fees and court costs. If the Title Company does not receive an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the “Final Closing” for the Site(s) covered by such Final Closing Notice will be deemed to have occurred on the expiration of the applicable Objection Period (the “Actual "Final Closing Date” for such Site(s)") and at 9:00 a.m. Eastern Standard Time (the parties shall promptly take the following actions following the expiration of the Objection Period (collectively, the “"Final Closing Actions”):
(1Time") The Title Company shall date each at the offices of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the Actual Final Closing Date for such Site(s), and record such documents in the Real Property Records of the proper County in which the respective Site(s) are located.
(2) The Title Company shall date each of the applicable Updated Deed(s) to be effective as of the Actual Final Closing Date for such Site(s) and record such Updated Deeds in the Real Property Records of the proper County in which the respective Site(s) are located.
(3) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of an Amendment to Permanent Lease (each an “Amendment to Permanent Lease”) and a Memorandum of Amendment to Permanent Lease (each a “Memorandum of Amendment to Permanent Lease”), both in a form reasonably acceptable to Seller and Purchaser, and pursuant to which the Site(s) covered by such Final Closing are added as part of the Property covered by the Permanent Lease, with the effective date of the Permanent Lease as to such newly added Site(s) being the date of such Final Closing. The Title Company shall date each Memorandum of Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s) and record such Memorandum of Amendment to Permanent Lease in the Real Property Records of the County in which the respective Site(s) are located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Permanent Lease, and deliver one original counterpart of such Permanent Lease to both Seller and Purchaser. If the Final Closing has previously occurred for any of the other Sites, the Title Company shall date the Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Amendment to Permanent Lease, and deliver one original counterpart of such Amendment to Permanent Lease to both Seller and Purchaser.
(5) If the Final Closing has occurred for all Sites, then the Title Company shall record one original counterpart of the Release of Memorandum in the Real Property Records of Tarrant, Johnson, Dallas and Tory ▇▇▇▇▇▇ Counties▇▇ Toronto, Texas.Ontario, or at such other time or place as may be agreed upon by the parties, at which time and place:
(6a) The Title Company shall release the Escrowed Funds for the purpose of paying the expenses shown on the settlement statements, including any title premium for the Owner Policies covering the applicable Site(s) following documents in form and substance satisfactory to the extent such premium was escrowed Company and the Parent shall have been delivered:
(i) documents evidencing filing of the Articles of Continuance;
(ii) court approval of the First Amalgamation and a copy of the order as filed with the Registrar under the Companies Act;
(iii) court approval of the Second Amalgamation and a copy of the order as filed with the Registrar under the Companies Act; and
(iv) a copy of the amendment to the memorandum and articles of association of Exchangeco effecting the Reorganization, as filed with the Registrar under the Companies Act;
(b) all certificates representing Exchangeable Shares, cash and shares of Holding Companies will be released to the Shareholders entitled thereto, subject to any applicable withholding tax, by delivery to Company counsel unless otherwise directed, less Exchangeable Shares which are held as part of the Escrowed Funds Escrow Amount;
(subject to c) all certificates representing Parent Common Stock and as applicable cash held by counsel pursuant to Section 6(b)(5section 7.2(a) above(including interest earned thereon) and the recording fees for the applicable Site(s).
(7) The Title Company shall issue to Purchaser the Owner Policies covering the applicable Site(s) subject only will be released to the exceptions shown on the applicable Updated Title Commitment(s) (subject to and as applicable pursuant to Section 6(b)(5) above). Purchaser may purchase, at its expense, any title insurance coverage in excess of that provided in the Owner Policies by the Title Company.
(8) In the event that Final Closing has occurred for all Sites which have not, as of such date, been included in a Deletion Notice pursuant to Section 7(f) below, and all expenses and prorations for all such remaining Sites have been paid including, without limitation, all recording fees, then the Title Company shall refund any remaining Escrowed Funds to Seller. Notwithstanding anything to the contrary, in the event that the Escrowed Funds are not sufficient to cover all expenses in connection with the Final Closing(s), Seller and Purchaser shall promptly deliver to the Title Company any additional funds necessary for the Final Closing(s) (“Additional Final Closing Expenses”), with Seller and Purchaser each being responsible for the same proportional amount of each type of Additional Final Closing Expenses for which such party was originally responsible at the Preliminary Closing pursuant to this Contract. Seller and Purchaser shall pay to the Title Company such party’s proportionate share of Additional Final Closing Expenses within ten (10) days after such party’s receipt of a written notice from the Title Company setting forth the amount owed.
(9) Upon completion of the Final Closing for each Site, Seller shall deliver to Purchaser possession of such SiteShareholders entitled thereto, subject to any applicable withholding tax, by delivery to Company counsel unless otherwise directed, less Parent Company Stock which is held as part of the applicable Permanent Lease.Escrow Amount;
(d) If the Title Company receives an Objection Notice from Seller or Purchaser prior Common shares of Exchangeco will be released to the expiration of the Objection Period, then the Title Company shall not take any further action with regard to the Final Closing Actions for the Site(s) affected by such Objection Notice until the earlier of: (x) directed to do so in writing by Seller and Purchaser or (xx) a determination is made by a court of competent jurisdiction that the Final Closing Condition for such affected Site(s) has been satisfied or (xxx) the Outside Final Closing Deadline. If an Objection Notice for any Site is based on a mistake in the Updated Title Commitment or the Updated Deed for such Site, Seller and Buyer hereby agree to work with the Title Company to correct such mistake and to authorize the Title Company to proceed with the Final Closing Actions for such Site promptly after the mistake is corrected.Holding ULC;
(e) The “Outside Final Closing Deadline” shall Copies of the Related Agreements, the Non-Competition Agreements and any other agreements, documents or instrument held pursuant to the Interim Escrow Agreement will be September 30, 2009; provided, however, Seller shall have the right to extend the Outside Final Closing Deadline for up to two (2) consecutive 30-day periods by providing written notice to Purchaser on or before the Outside Final Closing Deadlinereleased, as such may be extended hereunder.applicable, to the Company, each of the applicable Parent Companies, and shareholders by delivery to Company counsel (as to the shareholders) unless otherwise directed, and
(f) Notwithstanding anything The certificate representing the share of Special Voting Stock of the Parent held by counsel to the contrary, in the event that Seller reasonably determines that, despite Seller’s commercially reasonable best efforts, it will not Parent shall be able to obtain an approved Plat or otherwise satisfy the Final Closing Condition for one or more Site(s) prior released to the Outside Final Closing Deadline, then Seller may elect to delete such Site(s) (each a “Deleted Site” and collectively, the “Deleted Sites”) from the sale by taking the following actions on or before the Outside Final Closing Deadline: (i) providing a written notice (“Deletion Notice”) to Purchaser and the Title Company, which Deletion Notice shall include a detailed description of the reason that Seller was not able to satisfy the Final Closing Condition for such Site(s), and (ii) delivering to the Title Company an amount equal to the product of the number of deleted Sites covered by such Deletion Notice, multiplied by $1,302,857.14 (the “Deletion Repayment”). Notwithstanding anything to the contrary, (i) Seller may delete no more than twelve (12) Sites pursuant to this Section 7(f) or pursuant to any other express provision of this Contract and (ii) as a condition precedent to Seller’s right to delete a Site, Seller must have unconditionally delivered the Deletion Repayment to the Title Company and Title Company must have unconditionally delivered the Deletion Repayment to Purchaser. Promptly following the Title Company’s receipt of a Deletion Notice, the Title Company shall take the following actions (collectively, “Deletion Actions”):
(1) Date each of the applicable Partial Termination(s) of Master Leases and Partial Termination(s) of Subleases as of the date of the Deletion Notice for such Deleted Site(s), and record such documents in the Real Property Records of the proper County in which the respective Deleted Site(s) are locatedTrustee.
(2) Release the Deletion Repayment to Purchaser.
(3) Do not record, but rather, release the applicable Preliminary Deed, back to Seller so that Seller can destroy same, and do not include such Deleted Site(s) in Exhibit “A” to the Permanent Lease.
(4) Re-calculate the prorated taxes and other expenses set forth on the settlement statements issued at the Preliminary Closing, and tender any reimbursements resulting therefrom to the appropriate party. Notwithstanding anything to the contrary, Seller shall promptly pay any additional amounts owed by Seller as shown on the revised settlement statements as a result of such deletion, and Purchaser shall in no event be responsible for any additional expenses as a result of such deletion. Following the completion of the Deletion Actions, Purchaser shall have no further right, title or interest in and to the Deleted Site(s). Additionally, Purchaser may retain the portion of any previously paid rent applicable to the period between the Preliminary Closing and the date of such Deletion Notice.
(g) If the Final Closing for a particular Site occurs prior to the Outside Final Closing Deadline, then the closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Actual Final Closing Date for such Site.
(h) In the event that, as of the Outside Final Closing Deadline, the Final Closing Condition for any Site has not been satisfied and Seller has not deleted such Site from the conveyance pursuant to Section 7(f) above, then:
(1) The Actual Final Closing Date and the Final Closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Outside Final Closing Deadline.
(2) The Title Company shall date the applicable Partial Termination of Master Lease and Partial Termination of Sublease for such Site as of the Outside Final Closing Deadline, and record such documents in the Real Property Records of the proper County in which the Site are located.
(3) The Title Company shall date the applicable Preliminary Deed to be effective as of the Outside Final Closing Deadline for such Site and record such Preliminary Deed in the Real Property Records of the proper County in which the Site is located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of
Appears in 1 contract
Sources: Merger Agreement (Critical Path Inc)
Final Closing. (a) Upon satisfaction of Per the Final Closing Condition (defined below) for one or more Sites, Seller or Purchaser may deliver written notice of such satisfaction (a “Platting Completion Notice”) to the other party CP / CS and the Title Company. In order for a notice from Seller or Purchaser to be considered a Platting Completion Notice, it must clearly state the words “Platting Completion Notice” at the top terms and conditions of such notice. To the extent that the other party and the Title Company do not already have such materialsthis agreement, the Platting Completion Notice final closing will occur no later than 315' Ocbber, 2019. An Interim Closing shall include copies of the recorded Plat and the final Survey, if any, for each Site covered by such Platting Completion Notice (to the extent that the party sending the Platting Completion Notice has such materials). Promptly following the Title Company’s receipt of a Platting Completion Notice, the Title Company shall, without the need for any further instruction, promptly take the following actions:
(1) Issue to Seller and Purchaser updated Title Commitment(s) (each an “Updated Title Commitment” and collectively, the “Updated Title Commitments”) for the applicable Site(s) covered by such Platting Completion Notice, which reference the recorded Plat(s) for the applicable Site(s) in the legal description for such Site(s) (each an “Updated Legal Description” and collectively, the “Updated Legal Descriptions”). Purchaser shall have the right to elect to instruct the Title Company to either include all of the Sites on a single Updated Title Commitment or to include one or more Sites on multiple Updated Title Commitments.
(2) Replace the Preliminary Legal Description attached as Exhibit “A” to the applicable Preliminary Deed(s) with the respective Updated Legal Description for the applicable Site(s) and add any New Permitted Encumbrances appearing on the Updated Title Commitments or the Surveys, if any, to the list of Permitted Encumbrances attached as Exhibit “B” to the applicable Preliminary Deed(s). After each Preliminary Deed has been revised pursuant to this Section 7(a)(2), it shall be deemed an “Updated Deed”.
(3) As soon as practicable after the Title Company receives a Platting Completion Notice, and prepares all of the applicable Updated Title Commitment(s) and all of the Updated Deed(s), the Title Company shall deliver written notice of such to Seller and Purchaser (the “Final Closing Notice”). The Final Closing Notice shall include copies of all of the applicable Updated Title Commitment(s) and all of the applicable Updated Deed(s).
(b) Notwithstanding anything contained in this Contract to the contrary, during the period occur between the Preliminary Closing Initial Closins and the Final Closing for a Site, in no event shall Seller or its affiliates encumber, pledge, assign or transfer, by operation of law or otherwise, a Site or all or any portion Closing. On each of the Land or its interest therein; providedClosing Date, however, that the Committee shall concurrently deliver to the Transferor all (i) Seller shall have duly stamped original share certificate(s) representing the express right to take any Approved Actions and to executeSE.e Shares, record and encumber any Site(s) with New Permitted Encumbrances, duly endorsed in favor of the Transferor and (iiif_ duly stamped, applicable stamped duty paid and executed original share transfer form(s) such actions described in for transferring the immediately preceding clause (i) shall in no event be a default, breach or violation of this Contract or this paragraph. Any violation of this paragraph shall be a default by Seller for which, regardless of any other provision of this Contract, Purchaser shall be entitled Sale Shares to any and all remedies at law or in equity, including, without limitation, consequential and punitive damages; provided, however, that Purchaser may only pursue such remedies if Seller fails to cure such violation by causing such matter to be paid in full and released, bonded around or otherwise cured within five (5) business days following Seller’s receipt of written notice from Purchaser regarding such violationthe Transferor.
(c) Upon receipt of a Final Closing Notice, Seller and Purchaser shall have a period of five (5) business days (the “Objection Period”) in which to deliver a written objection notice (an “Objection Notice”) to the other party and the Title Company; provided that Seller or Purchaser may only deliver an Objection Notice if either (i) i. At the Final Closing Condition for the applicable Site(s) has not been satisfied or (ii) such party reasonably believes that there is a mistake in the Updated Commitment(s) or Updated Deed(s) for the applicable Site(s); and provided further that neither party may deliver an Objection Notice based on the inclusion of any Permitted Encumbrance or New Permitted Encumbrance (defined below) on the Updated Title Commitment(s) or Updated Deed(s) for the applicable Site(s). Notwithstanding anything Closing, all things required to the contrary, if either party delivers an improper Objection Notice or without a reasonable basis for doing so, such party occur shall be responsible for all costs incurred by the other party as a result thereof, including reasonable attorneys’ fees and court costs. If the Title Company does not receive an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the “Final Closing” for the Site(s) covered by such Final Closing Notice will be deemed to have occurred on the expiration of the applicable Objection Period (the “Actual Final Closing Date” for such Site(s)) and the parties shall promptly take the following actions following the expiration of the Objection Period (collectively, the “Final Closing Actions”):
(1) The Title Company shall date concurrently. d. Post each of the applicable Partial Termination(sCovenants relevant to the Closings : i. The Company shall file required documents and forms with the Registrar of Companies (ROC); ii. TRRB shall file required documents in due course with Security Exchange Commission (SEC) of Master Leases USA related to this transaction; iii. The Transferor shall file a Form D with the United States Consideration Shares and Partial Termination(s) Exchange Commission witain the required time frame covering the issue of Subleases as of the Actual Final Closing Date for such Site(s), and record such documents in the Real Property Records of the proper County in which the respective Site(s) are located.
(2) The Title Company shall date each of the applicable Updated Deed(s) to be effective as of the Actual Final Closing Date for such Site(s) and record such Updated Deeds in the Real Property Records of the proper County in which the respective Site(s) are located.
(3) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver unrestricted common stork to the Title Company two (2) counterparts of an Amendment to Permanent Lease (each an “Amendment to Permanent Lease”) and a Memorandum of Amendment to Permanent Lease (each a “Memorandum of Amendment to Permanent Lease”), both in a form reasonably acceptable to Seller and Purchaser, and pursuant to which the Site(s) covered by such Final Closing are added as part of the Property covered by the Permanent Lease, with the effective date of the Permanent Lease as to such newly added Site(s) being the date of such Final ClosingSellers; iv. The Title Company shall date each Memorandum of Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s) and record such Memorandum of Amendment to Permanent Lease in the Real Property Records of the County in which the respective Site(s) are located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Permanent Lease, and deliver one original counterpart of such Permanent Lease to both Seller and Purchaser. If the Final Closing has previously occurred for any of the other Sites, the Title Company shall date the Amendment to Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to the Amendment to Permanent Lease, and deliver one original counterpart of such Amendment to Permanent Lease to both Seller and Purchaser.
(5) If the Final Closing has occurred for all Sites, then the Title Company shall record one original counterpart of the Release of Memorandum in the Real Property Records of Tarrant, Johnson, Dallas and ▇▇▇▇▇ Counties, Texas.
(6) The Title Company shall release the Escrowed Funds for the purpose of paying the expenses shown on the settlement statements, including any title premium for the Owner Policies covering the applicable Site(s) to the extent such premium was escrowed as part of the Escrowed Funds (subject to and as applicable pursuant to Section 6(b)(5) above) and the recording fees for the applicable Site(s).
(7) The Title Company shall issue to Purchaser the Owner Policies covering the applicable Site(s) subject only to the exceptions shown on the applicable Updated Title Commitment(s) (subject to and as applicable pursuant to Section 6(b)(5) above). Purchaser may purchase, at its expense, any title insurance coverage in excess of that provided in the Owner Policies by the Title Company.
(8) In the event that Final Closing has occurred for all Sites which have not, as of such date, been included in a Deletion Notice pursuant to Section 7(f) below, and all expenses and prorations for all such remaining Sites have been paid including, without limitation, all recording fees, then the Title Company shall refund any remaining Escrowed Funds to Seller. Notwithstanding anything to the contrary, in the event that the Escrowed Funds are not sufficient to cover all expenses in connection with the Final Closing(s), Seller and Purchaser shall promptly deliver to the Title Company any additional funds necessary for the Final Closing(s) (“Additional Final Closing Expenses”), with Seller and Purchaser each being responsible for the same proportional amount of each type of Additional Final Closing Expenses for which such party was originally responsible at the Preliminary Closing pursuant to this Contract. Seller and Purchaser shall pay to the Title Company such party’s proportionate share of Additional Final Closing Expenses within ten (10) days after such party’s receipt of a written notice from the Title Company setting forth the amount owed.
(9) Upon completion of the Final Closing for each Site, Seller shall deliver to Purchaser possession of such Site, subject to the applicable Permanent Lease.
(d) If the Title Company receives an Objection Notice from Seller or Purchaser prior to the expiration of the Objection Period, then the Title Company shall not take any further action with regard to the Final Closing Actions for the Site(s) affected by such Objection Notice until the earlier of: (x) directed to do so in writing by Seller and Purchaser or (xx) a determination is made by a court of competent jurisdiction that the Final Closing Condition for such affected Site(s) has been satisfied or (xxx) the Outside Final Closing Deadline. If an Objection Notice for any Site is based on a mistake in the Updated Title Commitment or the Updated Deed for such Site, Seller and Buyer hereby agree to work with the Title Company to correct such mistake and to authorize the Title Company to proceed with the Final Closing Actions for such Site promptly after the mistake is corrected.
(e) The “Outside Final Closing Deadline” shall be September 30, 2009; provided, however, Seller shall have the right to extend the Outside Final Closing Deadline for up to two (2) consecutive 30-day periods by providing written notice to Purchaser on or before the Outside Final Closing Deadline, as such may be extended hereunder.
(f) Notwithstanding anything to the contrary, in the event that Seller reasonably determines that, despite Seller’s commercially reasonable best efforts, it will not be able to obtain an approved Plat or otherwise satisfy the Final Closing Condition for one or more Site(s) prior to the Outside Final Closing Deadline, then Seller may elect to delete such Site(s) (each a “Deleted Site” and collectively, the “Deleted Sites”) from the sale by taking the following actions on or before the Outside Final Closing Deadline: (i) providing a written notice (“Deletion Notice”) to Purchaser and the Title Company, which Deletion Notice shall include a detailed description of the reason that Seller was not able to satisfy the Final Closing Condition for such Site(s), and (ii) delivering to the Title Company an amount equal to the product of the number of deleted Sites covered by such Deletion Notice, multiplied by $1,302,857.14 (the “Deletion Repayment”). Notwithstanding anything to the contrary, (i) Seller may delete no more than twelve (12) Sites pursuant to this Section 7(f) or pursuant to any other express provision of this Contract and (ii) as a condition precedent to Seller’s right to delete a Site, Seller must have unconditionally delivered the Deletion Repayment to the Title Company and Title Company must have unconditionally delivered the Deletion Repayment to Purchaser. Promptly following the Title Company’s receipt of a Deletion Notice, the Title Company shall take the following actions (collectively, “Deletion Actions”):
(1) Date each necessary corporate actiois incliding but not limited to holding such meetings as may be reqt_ red tc approve and take on record the transfer of the applicable Partial Termination(s) of Master Leases Sale Shares and Partial Termination(s) of Subleases luting the Transferor as the beneficial owner of the date Sale shares and the Company shall provide to the Transferor a true copy c the minutes of the Deletion Notice for such Deleted Site(s), and record such documents in meeting approving the Real Property Records transfer of the proper County Sale Shares and a certified extract of the Register of Members of the Company updating Transferor as the owners of the Sale Shares; and v. The Parties shall further co-operate with the Transferor to take the necessary steps to file the Form FCTRS along with requisite 8 v9 enclosures for transfer of Sale Shares within the prescribed timelines and in which the respective Deleted Site(s) are located.
(2) Release the Deletion Repayment to Purchaser.
(3) Do not record, but rather, release the applicable Preliminary Deed, back to Seller so that Seller can destroy same, and do not include such Deleted Site(s) in Exhibit “A” to the Permanent Lease.
(4) Re-calculate the prorated taxes and other expenses set forth on the settlement statements issued at the Preliminary Closing, and tender any reimbursements resulting therefrom to the appropriate partyaccordance with FEMA 20. Notwithstanding anything to the contrary, Seller shall promptly pay any additional amounts owed by Seller as shown on the revised settlement statements as a result of such deletion, and Purchaser shall in no event be responsible for any additional expenses as a result of such deletion. Following the On completion of the Deletion Actions, Purchaser shall have no further right, title or interest in and to the Deleted Site(s). Additionally, Purchaser may retain the portion Initial Closing obligation of any previously paid rent applicable to the period between the Preliminary Closing and the date of such Deletion Notice.
(g) If the Final Closing for a particular Site occurs prior to the Outside Final Closing Deadline, then the closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Actual Final Closing Date for such Site.
(h) In the event that, as of the Outside Final Closing Deadline1NR 9.60 Crore stipulated hereinabove, the Final Closing Condition Transferor shall provide the funding as equity or Convertible instrument for any Site has not been satisfied the Company to inject capital into investee company Apodis Hotels & Resorts Limited (CIN: U55101MH2008PLC200363) and Seller has not deleted such Site from the conveyance pursuant to Section 7(fits subsidiaries namely Apodis Foods ic Bands Pvt. Limited (CIN:U55204MH2012PTC231163) above, thenand Intenista)/ Hotels Private Limited (CIN:
(1) The Actual Final Closing Date and the Final Closing of the sale and purchase of such Site shall, for all purposes, be deemed to have occurred on the Outside Final Closing DeadlineU55101KA2007PTC04431 ).
(2) The Title Company shall date the applicable Partial Termination of Master Lease and Partial Termination of Sublease for such Site as of the Outside Final Closing Deadline, and record such documents in the Real Property Records of the proper County in which the Site are located.
(3) The Title Company shall date the applicable Preliminary Deed to be effective as of the Outside Final Closing Deadline for such Site and record such Preliminary Deed in the Real Property Records of the proper County in which the Site is located.
(4) If the Final Closing has not previously occurred for any of the other Sites, the Title Company shall date the Memorandum of Permanent Lease as of the Actual Final Closing Date for such Site(s), attach the applicable Updated Legal Descriptions as Exhibit “A” to such Memorandum of Permanent Lease, and record such Memorandum of Permanent Lease in the Real Property Records of the proper County in which the respective Site(s) are located. If the Final Closing has previously occurred for any of the other Sites, Seller and Purchaser shall also execute, acknowledge where appropriate, and deliver to the Title Company two (2) counterparts of
Appears in 1 contract
Sources: Exhibit (TripBorn, Inc.)