Leasing Matters Any Lease executed after the date hereof (and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to the Loan Documents); (e) shall not alter, modify or change the terms of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Closing Matters (a) Within one business day of the date of this Agreement, Buyer shall deliver the notice attached as Annex I hereto to Continental.
(b) Prior to the Closing, Seller shall deliver or cause to be delivered to Buyer appropriate instructions for book entry transfers of ownership of the Shares from Seller to Buyer.
(c) The closing of the purchase and sale of the Shares (“Closing”) will occur not later than the first to occur of (i) the first date any funds are disbursed from the Trust Account, except if the Extension is approved, for disbursements to Buyer’s shareholders who exercise their Conversion Rights on or prior to February 12, 2010, (ii) February 18, 2010 if the Extension is not approved, (iii) the fifth business day after the Merger is abandoned, (iv) the third business day after the Merger is not approved by Buyer’s shareholders and (v) February 22, 2010 as such date may be adjourned pursuant to the Escrow Agreement described in Section 6(n) (the “Closing Date”). At the Closing, Buyer and Migami shall pay Seller the Aggregate Purchase Price and the cash portion of the Fees by wire transfer. Payments from the Buyer to the Seller shall be made from the Trust Account in immediately available funds in accordance with the Irrevocable Instructions attached as Annex I hereto to an account specified by Seller and Seller shall deliver the Shares immediately thereafter to Buyer electronically using the Depository Trust Company’s DWAC (Deposit/Withdrawal at Custodian) System to an account specified by Buyer. Notwithstanding anything herein or in the Irrevocable Instructions to the contrary, if the Merger is not consummated, Buyer shall not be obligated to pay the Seller for each Share more than the pro rata amount held in the Trust Account at the time of Buyer’s liquidation for each such Share.
(d) In the event that Seller has not received the Aggregate Purchase Price on a timely basis on the Closing Date, then Migami shall pay to Seller in immediately available funds an amount equal to the lesser of (i) 1.0% total amount of, or (ii) the highest lawful rate of, the total Purchase Price Per Share paid by Seller for all of the Shares calculated from the date such payment was required to be made through the date such payment is actually made.
(e) Upon the execution of this Agreement, Buyer will deliver to the Investor a legal opinion from Buyer’s counsel in the form annexed hereto as Annex II.
Post-Closing Matters Execute and deliver the documents and complete the tasks set forth on Schedule 6.14, in each case within the time limits specified on such schedule, as such time limits may be extended from time to time by Agent in its reasonable discretion.
Pending Matters No suit, action or other proceeding shall be pending or threatened that seeks to restrain, enjoin or otherwise prohibit the consummation of the transactions contemplated by this Agreement.
UCC Matters Such Seller shall not change its state of organization or incorporation or its name, identity or corporate structure such that any financing statement filed to perfect the Purchaser’s interests under this Agreement would become seriously misleading, unless such Seller shall have given the Purchaser not less than thirty (30) days’ prior written notice of such change.
