not exceed
$129,648,266.
63
(e)
Officer's Certificate.
Target shall have delivered to Acquiror a
certificate, dated the date of the Closing, signed by the President or any Vice
President of Target, certifying as to the satisfaction of the conditions
specified in this Section 9.02, and including as an exhibit a Target Disclosure
Letter updated as of the Closing Date.
(f)
Tenant Estoppels.
At least one (1) Business Day prior to the
Closing Date, Target shall have delivered to Acquiror the tenant estoppel
certificates in the form attached hereto as Exhibit J executed by those tenants
listed in Section 9.02(f) of the Target Disclosure Letter, free from material
adverse disclosures not previously disclosed to Acquiror.
(g)
Office Assumed Loan Documents.
The Office Assumed Loan Documents
shall have been fully executed and delivered to Acquiror.
(h)
Corporate Dissolutions.
Prior to the Effective Time, Target shall
have dissolved the corporations listed in Section 9.02(h) of the Target
Disclosure Letter.
(i)
Stock Distribution.
Prior to the Effective Time, Target shall
have caused all of the outstanding stock in each of NVI Communities, Inc. and
Village Ventures, Inc. to be distributed to the Liquidating Trust.
(j)
Assignment of Insurance Loans.
Prior to the Effective Time,
Target shall have transferred all of its rights and obligations relating to the
officers life insurance policies and loans as listed in Section 9.02(j) of the
Target Disclosure Letter to the Liquidating Trust.
9.03.
CONDITIONS TO THE OBLIGATIONS OF TARGET.
The obligations of Target to consummate the Merger are subject to the
satisfaction or waiver (where permissible) of the following additional
conditions:
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF ACQUIROR, ACQUIROR OP AND MERGER SUBSIDIARY IN THIS AGREEMENT THAT
(I) ARE NOT MADE AS OF A SPECIFIC DATE SHALL BE TRUE AND CORRECT AS OF THE DATE
OF THIS AGREEMENT AND AS OF THE CLOSING, AS THOUGH MADE ON AND AS OF THE
CLOSING, AND (II) ARE MADE AS OF A SPECIFIC DATE SHALL BE TRUE AND CORRECT AS OF
SUCH DATE, IN EACH CASE, EXCEPT WHERE THE FAILURE OF SUCH REPRESENTATIONS OR
WARRANTIES TO BE TRUE AND CORRECT IN THE AGGREGATE IS NOT REASONABLY LIKELY TO
RESULT IN AN ACQUIROR MATERIAL ADVERSE EFFECT.
NOTWITHSTANDING THE FOREGOING,
IN DETERMINING WHETHER A CUMULATIVE ACQUIROR MATERIAL ADVERSE EFFECT HAS
OCCURRED AT CLOSING FOR THE PURPOSES OF THIS SECTION 9.03(A), ANY LIMITATION AS
TO MATERIALITY OR ACQUIROR MATERIAL ADVERSE EFFECT IN A REPRESENTATION OR
WARRANTY SHALL BE DISREGARDED.
(B)
AGREEMENTS AND COVENANTS.
ACQUIROR, ACQUIROR OP AND MERGER
SUBSIDIARY SHALL HAVE PERFORMED, IN ALL MATERIAL RESPECTS, ALL OBLIGATIONS OR
COMPLIED WITH, IN ALL MATERIAL RESPECTS, ALL AGREEMENTS AND COVENANTS TO BE
PERFORMED OR COMPLIED WITH BY THEM UNDER THIS AGREEMENT ON OR PRIOR TO THE
CLOSING.
64
(C)
INTENTIONALLY DELETED.
(D)
ARTICLES SUPPLEMENTARY.
THE ARTICLES SUPPLEMENTARY SHALL HAVE
BEEN APPROVED BY THE TRUSTEES OF ACQUIROR, FILED WITH AND ACCEPTED BY THE SDAT
AND BE IN FULL FORCE AND EFFECT.
(E)
MATERIAL ADVERSE EFFECT.
SINCE THE DATE OF THIS AGREEMENT, THERE