Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent: (a) On or before the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice. (b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement. (c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 10 contracts
Samples: Purchase and Sale Agreement (Capital Realty Investors Ii LTD Partnership), Purchase and Sale Agreement (Equity Resource Group Inc Et Al), Purchase and Sale Agreement (Equity Resource Group Inc Et Al)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase consummate the Partnership Interests or otherwise to perform any obligation provided in transactions contemplated by this Agreement shall be conditioned upon is subject to the fulfillment satisfaction or waiver in writing of the following conditions precedent:precedent (the “Buyer Conditions Precedent”):
(a) On The transactions contemplated under this Agreement to be effected on the Closing Date shall not have been restrained or before the expiration prohibited by any injunction or order or judgment rendered by any court or other governmental agency of competent jurisdiction against Sellers, and no proceeding shall have been instituted and be pending in which any creditor of any Seller seeks to restrain such transactions or otherwise to attach any material part of the Inspection PeriodProperties, Buyer provided that any such injunction, order, judgment or proceeding contemplated by this Section 14.1(a) shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall not be deemed to have been satisfied without further noticeinclude any injunction, order, judgment or proceeding brought by, through, under or against, or as a result of any acts or omissions of, Buyer or any person or entity affiliated with Buyer.
(b) On or before the respective dates provided for hereinClosing Date, no Seller shall havehave filed a petition for relief under the Federal Bankruptcy Code or any other present or future federal or state insolvency, in a timely fashionbankruptcy or similar law (all of the foregoing hereinafter collectively called “Applicable Bankruptcy Law”), substantially performed each nor shall an involuntary petition for relief have been filed against such Person under any Applicable Bankruptcy Law and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreementnot been dismissed.
(c) The Title Insurer All of the representations and warranties of Sellers contained in this Agreement shall deliver be true and correct (without regard to Buyer at any materiality qualifiers otherwise included in such representations and warranties) as of the Effective Date and as of the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect Date, except to the Partnership’s ownership extent the failure of such representations and warranties to be true and correct would not reasonably be expected to have a Material Adverse Effect.
(d) Each Seller shall in all material respects have performed or satisfied its covenants and obligations hereunder.
(e) Buyer or any existing or new third party operator shall have obtained (by transfer from the Real applicable Seller or by issuance from the applicable Governmental Authority, as applicable) the Licenses and Permits that are required to operate each Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement currently operated (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted)or, with respect to (i) taxes (except for taxes which are not yet due nontransferable Licenses and payable which are apportioned hereunder)Permits, (ii) mechanic’s lienssuch assurances as may be customary, (iii) survey issues (which shall or otherwise reasonably satisfactory to Buyer, that such nontransferable Licenses and Permits will be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed ratesapplicable Governmental Authority on, as applicable as of or retroactively to, the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter definedClosing Date), insuring the Partnership as owner of fee simple title which Licenses and Permits shall be satisfactory to the Property Buyer in its reasonable discretion.
(f) The Title Company shall be irrevocably committed, subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end payment of the Inspection Period usual and the Title Insurer has agreed customary premium and to issue those conditions set forth in the Title Commitment Commitments to be satisfied by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy andBuyer, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in Policies to Buyer.
(g) If the form Buyer Conditions Precedent are not satisfied as of the “marked-up” Title Commitment promptly after the Closing Date, Buyer may terminate this Agreement by providing Notice to Sellers, in which event the Deposit shall be returned to Buyer, this Agreement shall terminate and none of the parties shall have any further rights or obligations under this Agreement except for Surviving Obligations; provided, however, if the Buyer Conditions Precedent are not satisfied as a result of a Seller Default, Buyer shall have the rights described in Section 16.1.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (CNL Lifestyle Properties Inc), Purchase and Sale Agreement (Senior Housing Properties Trust)
Buyer’s Conditions Precedent. Buyer’s obligation The obligations of Buyer at the Closing are subject to purchase the Partnership Interests satisfaction or otherwise waiver at or prior to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment Closing of the following conditions precedent:precedent (collectively, the “Buyer’s Conditions”):
(a) On or before the expiration (i) The representations and warranties of Seller made in this Agreement will be true and correct in all material respects as of the Inspection PeriodClosing Date, Buyer as if remade on the Closing Date (without duplication of any “materiality” qualifiers in the representations and warranties themselves); and (ii) Seller shall have inspected performed or complied in all material respects with all of the covenants and approvedagreements required of Seller under this Agreement to be performed at or prior to Closing;
(b) No Additional Required Consent, which has not been obtained, would cause Closing of the Transaction to be in Buyerviolation of applicable law which would result in (1) criminal liability to Buyer or Seller or (ii) a material civil fine or penalty to Buyer or Seller;
(c) No order has been entered by any court or governmental agency having jurisdiction over the Parties or the subject matter of this Agreement that restrains or prohibits the Transaction and that remains in effect at the time of Closing;
(d) The Bankruptcy Court shall have approved in connection with the Bankruptcy Case the Transaction contemplated by this Agreement; and
(e) Seller shall have delivered at Closing all Seller Closing Deliveries unless Seller’s sole discretion, all aspects and matters relating failure to deliver the Property, Seller Closing Deliveries results from Seller’s termination of any nature whatsoever, or waived such approval, this Agreement as a result of its termination rights under Section 8.1 above as a result of a failure of Seller’s Conditions. Notwithstanding anything set forth in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein this Agreement to the contrary, if Buyer fails to deliver to Seller, on or before any Buyer’s Condition has not been satisfied by the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereofClosing Date, then Buyer may, as Buyer’s sole and exclusive remedy with respect to such condition Buyer’s Condition, either (1) terminate this Agreement, in which case the Parties shall have no further rights or obligations hereunder except those which expressly survive termination, or (2) proceed to Closing, in which case such Buyer’s Condition shall be deemed to have been satisfied without further noticebe waived for all purposes.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Ultra Petroleum Corp), Restructuring Support Agreement (Ultra Petroleum Corp), Purchase and Sale Agreement
Buyer’s Conditions Precedent. Buyer’s obligation The obligations of Buyer at the Closing are subject to purchase the Partnership Interests satisfaction or otherwise waiver at or prior to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment Closing of the following conditions precedent:precedent (collectively, the “Buyer’s Conditions”):
(a) On or before the expiration (i) The representations and warranties of Seller made in this Agreement will be true and correct in all material respects as of the Inspection PeriodClosing Date, as if remade on the Closing Date (without duplication of any “materiality” qualifiers in the representations and warranties themselves); and (ii) Seller shall have performed or complied in all material respects with all of the covenants and agreements required of Seller or its Affiliates under this Agreement to be performed at or prior to Closing;
(b) No order has been entered by any court or governmental agency having jurisdiction over the Parties or the subject matter of this Agreement that restrains or prohibits the Transaction and that remains in effect at the time of Closing;
(c) No Additional Required Consent, which has not been obtained, would cause Closing of the Transaction to be in violation of applicable law which would result in (i) criminal liability to Buyer or Seller or (ii) a material civil fine or penalty to Buyer or Seller.
(d) Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating received funds sufficient to enable it to pay the Purchase Price through the combination of capital contributions to the PropertyBuyer by one or more of its equity investors, debt financing, and the completion of an equity offering by the parent of the general partner of the Buyer unless such failure results from a failure of performance by Buyer of Section 9.3 of this Agreement;
(e) Seller shall have delivered at Closing all Seller Closing Deliveries unless Seller’s failure to deliver the Seller Closing Deliveries results from Seller’s termination of this Agreement as a result of its termination rights under Section 11.1 above as a result of a failure of Seller’s Conditions; and
(f) There shall not have occurred any nature whatsoever, event or waived such approval, circumstance giving rise to a Material Adverse Effect for Closing Conditions which event or circumstance first occurred after the Effective Date. Notwithstanding anything set forth in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein this Agreement to the contrary, if Buyer fails to deliver to Seller, on or before any Buyer’s Condition has not been satisfied by the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereofClosing Date, then Buyer may, as Buyer’s sole and exclusive remedy with respect to such condition Buyer’s Condition, either (1) terminate this Agreement, in which case the Parties shall have no further rights or obligations hereunder except those which expressly survive termination, or (2) proceed to Closing, in which case such Buyer’s Condition shall be deemed to have been satisfied without further notice.
be waived for all purposes or (b3) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnershipa failure of Buyer’s ownership of the Real Property as contemplated under Section 2.01 hereof and Condition set forth in accordance with the Commitment, as it may have been modified as contemplated by this Agreement subsection (the “Title Policy”d), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted)above, with respect to (i) taxes (except bring suit for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datespecific performance.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Ultra Petroleum Corp), Purchase and Sale Agreement (CorEnergy Infrastructure Trust, Inc.)
Buyer’s Conditions Precedent. In addition to the condition set forth in Section 9.2 hereof, Buyer’s obligation to purchase consummate the Partnership Interests transactions contemplated by this Agreement, including, without limitation, to accept the Subject Assets from Sellers and to pay the Purchase Price in accordance with Article III of this Agreement, is subject to fulfillment on or otherwise to perform any obligation provided in this Agreement shall be conditioned upon before the fulfillment Closing Date, of each the following conditions precedent:
(a) On or before all Governmental Approvals that are required to be obtained in connection with the expiration execution, delivery and performance of this Agreement and the Inspection Periodrelated documents have been obtained and are in effect at Closing, Buyer including, without limitation, that, if applicable, the waiting period under the HSR Act shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, expired or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition early termination shall be deemed to have been satisfied without further notice.granted;
(b) On or before all consents, waivers and approvals from all Governmental Authorities, third parties and such other entities, as necessary for the respective dates provided for herein, Seller consummation of the Transaction shall have, in a timely fashion, substantially performed each have been obtained and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Buyer shall have received copies thereof;
(c) The Title Insurer Sellers shall deliver have performed and complied in all respects with all obligations and agreements required in this Agreement to be performed or complied with by it prior to the Closing Date, including, without limitation, the transfer, conveyance, assignment and delivery to Buyer at of the Subject Assets free and clear of all Liens (other than Permitted Exceptions);
(d) Sellers’ representations and warranties in Article VI of this Agreement that are qualified as to materiality or by the term “Material Adverse Effect” shall be true and correct in all respects as of the Closing and any such representations and warranties that are not so qualified shall be true and correct in all material respects as of the Closing as though made at Buyer’s sole expense an endorsement and as of the Closing (or if made as of a specified date, only as of such date);
(e) Sellers have completed all deliveries they are required to Owner’s Policy make under Section 4.1;
(f) there shall not have occurred since the Effective Date and be continuing as of Title Insurance with respect the Closing Date any Material Adverse Effect;
(g) there shall not be in effect any Order by a Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(h) the Scheduling Order shall have been entered by the Bankruptcy Court in a form and substance reasonably acceptable to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof Buyer and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to such Order shall be a Final Order; and
(i) taxes Sellers have complied in all material respects with their obligations under paragraphs (except for taxes which are not yet due and payable which are apportioned hereunder), a) through (iik) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part Section 9.1 of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datethis Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Cal Dive International Inc), Asset Purchase Agreement (Cal Dive International Inc)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On the issuance of the Owner’s Policy (or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement written commitment therefor) subject only to be performed those matters approved or deemed approved by Seller Buyer pursuant to this Agreement.;
(c) The Title Insurer shall deliver the delivery by Seller to Buyer at XXX of all security deposits and a prorated amount of pre-paid/abated rents under the Closing Lease, if any, in the form of a credit in favor of Buyer against the Purchase Price;
(d) the deposit by Seller with Buyer not later than five (5) days prior to XXX of (i) an original estoppel certificate, in Tenant’s standard form attached hereto as Exhibit G, dated not more than forty-five (45) days prior to XXX, executed by Tenant and naming Buyer (or its designee) and such lender of which Buyer provides written notice to Seller pursuant to the notice provisions hereof (“Lender”) as addressees (Seller shall notify Buyer of the exact names and addresses for the estoppel certificate and subordination, non-disturbance and attornment agreement at least thirty (30) days prior to XXX); (ii) a subordination, non-disturbance and attornment agreement executed by Tenant for the benefit of Lender, in Tenant’s standard form as set forth in the Lease (or, if no form is set forth in the Lease, in a form reasonably acceptable to Tenant); and (iii) provided a reciprocal easement agreement (“REA”) or declaration of covenants, conditions, and/or restrictions (“Declaration”) affects the Premises, and provided such REA or Declaration imposes a recurring monetary obligation on the Premises and imposes an obligation on the parties to such REA or Declaration to provide an estoppel certificate to the other parties thereto upon request, an estoppel certificate executed by the parties to any such REA or Declaration addressed or certified to Buyer and Lender in accordance with such REA or Declaration. In the event any such REA or Declaration imposes a recurring monetary obligation on the Premises but does not impose an obligation on the parties to such REA or Declaration to provide an estoppel certificate to the other parties thereto upon request, Seller shall use commercially reasonable efforts to obtain an estoppel certificate for Buyer and Lender, but in no event, shall receipt of such estoppel certificate be a condition precedent to XXX.
(e) the deposit with Escrow Agent of an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics’ lien exception from the Owner’s Policy;
(f) the delivery by Seller to Buyer of the final Certificate of Occupancy for the Premises (the original Certificate of Occupancy shall be delivered if it is in Seller’s possession);
(g) the deposit with Escrow Agent of a letter from Seller to Tenant requesting that future rent under the Lease be paid to Buyer;
(h) there has been no “Insolvency Event” with respect to Tenant. As used in this subsection (h), an “Insolvency Event” shall have occurred if Tenant becomes insolvent within the meaning of the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the “Bankruptcy Code”), files or notifies Seller or any affiliate of Seller that it intends to file a petition under the Bankruptcy Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, hereinafter, an “Action”), becomes the subject of either a petition under the Bankruptcy Code or an Action, or is not generally paying its debts as the same become due;
(i) delivery to Buyer of the original, fully-executed Lease, and a copy of all guaranties thereof, all exhibits, amendments and other modifications thereto, and, if Seller is not the original landlord under the Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under the Lease; and
(j) delivery to Buyer of originals of the Contracts, Warranties and Permits, if any, in the possession of Seller or Seller’s agents, including, without limitation, any warranties covering the roof or any other part of the Improvements, and any correspondence with respect thereto, together with such non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance with respect to the Premises. If the foregoing conditions have not been satisfied by the specified date or XXX, as the case may be, and provided Buyer notifies Seller in writing of such deficiency and Seller fails to satisfy such deficiency within fifteen (15) days of receipt of such written notice, then Buyer shall have the right, at Buyer’s sole expense an endorsement option, by giving written notice to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof Seller and in accordance with the CommitmentEscrow Agent, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due terminate this Agreement, whereupon the Xxxxxxx Money Deposit shall be paid immediately to Buyer, all documents deposited in escrow by Buyer shall be returned to Buyer without delay and payable which are apportioned hereunder)neither of the Parties shall have any further liability or obligation under this Agreement, or (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closingextend such specified date or XXX, as tenants only without any right or option to purchase all or any part of applicable, for the Property”) and (v) items raised after the effective date of the Title Commitment)Premises, issued by the Title Insurer at its standard filed ratesBuyer’s option, as applicable as of the date and time of the issuance of the Title Policy, in the for such amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements time as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed deems reasonably necessary to issue in the Title Commitment by the end of the Inspection Period. allow Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in satisfy such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateconditions.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.)
Buyer’s Conditions Precedent. Buyer’s obligation The obligations of Buyer at the Closing are subject to purchase the Partnership Interests satisfaction or otherwise waiver at or prior to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment Closing of the following conditions precedent:precedent (collectively, the “Buyer’s Conditions”):
(ai) On The Seller’s Warranties are true and correct in all material respects, as if remade on the Closing Date (and disregarding for this purpose any “materiality” or before “Material Adverse Effect” qualifications to the expiration Seller’s Warranties); (ii) Seller shall have performed or complied in all material respects with all of the Inspection Period, covenants and agreements required of Seller or its Affiliates under this Agreement to be performed at or prior to Closing; and (iii) and Buyer shall have inspected and approvedreceived a certificate of one of Seller’s Representatives, in Buyer’s sole discretiondated the Closing Date, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.foregoing effect;
(b) On No Order has been entered by any court or before governmental agency having jurisdiction over the respective dates provided for herein, Seller shall have, Parties or the subject matter of this Agreement that restrains or prohibits the Transaction and that remains in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.effect;
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof consents and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement approvals set forth on Schedule 11.2(c) (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the PropertyRequired Consents”) and shall have been obtained;
(vd) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of Buyer shall have received funds sufficient to enable it to pay the Purchase Price, containing Buyer’s Endorsements including through the combination of debt financing and the completion of an equity offering by CorEnergy, unless such failure results from a failure of performance by Buyer of Section 9.3;
(as hereinafter defined)e) Seller shall have delivered at Closing all Seller Closing Deliverables and have paid all Seller Closing Payments;
(f) Buyer shall have received, insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used hereineither directly or by assignment, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested Exxon Platform License, executed by the end appropriate Exxon counterparty and with its signature acknowledged;
(g) Buyer shall be qualified pursuant to BOEM regulations and other applicable laws to hold the Federal ROWs, and shall have been assigned a GOM company number by BOEM;
(h) Buyer shall have posted, or shall stand ready to post, the Decommissioning Bonds;
(i) Buyer shall be satisfied, acting reasonably, that following Closing Buyer will satisfy all obligations under applicable law relating to oil spill response planning and financial responsibility for oil spills;
(j) There shall be no breach, default, or failure of performance by Tenant under the Inspection Period and Lease upon the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company execution thereof at Closing; and
(to the extent permitted by the Title Insurerk) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller There shall not incur have occurred any additional cost event or liability, Buyer Endorsements. The Title Policy may be delivered circumstance giving rise to a Material Adverse Effect for Closing Conditions which event or circumstance first occurred after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Effective Date.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Energy XXI LTD), Purchase and Sale Agreement (CorEnergy Infrastructure Trust, Inc.)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase proceed to Closing under this Agreement is subject to the Partnership Interests following conditions precedent (any or otherwise all of which Buyer may elect, in its sole discretion, to perform any obligation provided waive):
(a) Seller shall have performed and satisfied each and all of Seller’s obligations under this Agreement; and
(b) Each and all of Seller’s representations and warranties set forth in this Agreement shall be conditioned upon true and correct at the fulfillment Effective Date and at the Closing Date.
(c) Seller shall have delivered to Buyer the Tenant Estoppel Certificates from (i) Tenants representing at least *** of the following conditions precedent:
(a) On Tenants who lease *** or before the expiration more square feet of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to leased rentable square feet of the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration (ii) Tenants representing at least *** of the Inspection Period, written notice Tenants who lease *** square feet of the failure leased rentable square feet of the condition set forth in Section 6.02 hereofProperty, then such condition and (iii) Tenants representing at least *** of the Tenants who lease less than *** of the leased rentable square feet of the Property, provided that Seller shall be deemed to have been satisfied without further noticedelivered satisfactory Tenant Estoppel Certificates so long as the tenant estoppel certificate executed by the Tenant satisfies Tenant’s estoppel certificate requirement under its Lease. Nevertheless, Seller shall make reasonable efforts to procure an Estoppel Certificate from all Tenants. Further, any qualification of “to Tenant’s knowledge” (or similar qualification) with respect to any assertion in the Tenant Estoppel Certificate regarding the status of the performance of any of landlord’s obligations under the Lease shall be acceptable. Notwithstanding anything contained in this Agreement to the contrary, in the event that, despite Seller’s good faith and reasonable efforts, Seller is unable to obtain a Tenant Estoppel Certificate from any particular Tenant, Seller shall have the right (but not the obligation) to deliver to Buyer on the Closing Date a certificate (a “Seller’s Estoppel Certificate”) in the form attached hereto and made a part hereof as Exhibit N and in such event, Seller shall be deemed to have delivered a Tenant Estoppel Certificate with respect to such Tenant for purposes of satisfying the condition under this Section 9.1. In addition, Seller shall be released from any liability with respect to such Seller’s Estoppel Certificate upon the sooner to occur of (i) one (1) year following the Closing Date and (ii) the date of delivery to Buyer of a Tenant Estoppel Certificate executed by the Tenant for which Seller has delivered such Seller’s Estoppel Certificate. Seller shall be required to deliver to Buyer, promptly upon Seller’s receipt thereof, true and complete copies of all Estoppel Certificates delivered by any and all Tenants.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(cd) The Title Insurer shall deliver later-date the Title Commitments to Buyer at cover the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to and the Partnership’s ownership recording of the Real Property Deed, and shall issue owner’s policies of title insurance (or a pro forma owner’s policy or a so-called “marked-up” title commitment) to Buyer, naming Buyer as contemplated under Section 2.01 hereof the insured and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described providing insurance on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property and subject only to the Permitted Title Exceptions, all in accordance with Section 5 of this Agreement (the “Title Policies”). As used hereinprovided in Section 5, the term “Buyer Title Policies shall include the Endorsements” .
(e) All Leases for space equal to or greater than *** square feet that are in effect on the Inspection Date with respect to a given Project shall mean be in full force and effect on the Closing Date unless such endorsements as Buyer has requested by Lease expires during such period; provided, however, in the end event that the foregoing condition is not satisfied with respect to one or more Projects, then Seller shall have the right to master lease such space on all of the Inspection Period and the Title Insurer has agreed to issue same terms set forth in the Title Commitment by the end applicable Tenant’s Lease for a period of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment *** from and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date. If Seller does elect to so master lease any such leased premises, then such master lease arrangement shall permit Buyer to unilaterally terminate any such master lease on an accelerated basis, so as to permit Buyer to lease such leased premises to a third party. *** In the event any of the foregoing conditions are not satisfied prior to or at the Closing, then subject to Section 7.3 hereof and to the provisions of Section 9.1(e), Buyer may terminate this Agreement by written notice to Seller on the Closing Date and thereafter shall have no obligation to proceed with the Closing, the Xxxxxxx Money shall be immediately returned and paid to Buyer, and neither party shall have any further obligation hereunder, except those which expressly survive the termination of this Agreement. Notwithstanding the foregoing, nothing contained herein shall waive or diminish any right or remedy Buyer may have for Seller’s default or breach of this Agreement as set forth in this Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Duke Realty Limited Partnership/), Purchase and Sale Agreement (Duke Realty Corp)
Buyer’s Conditions Precedent. Buyer’s obligation The obligations of Buyer to purchase consummate the Partnership Interests transactions to be performed by it in connection with the Closing are, in all material respects, subject to satisfaction by Sellers or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment waiver by Buyer of the following conditions precedent:
(a) On or before the expiration The representations and warranties of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition Sellers set forth in Section 6.02 hereof, then such condition 3.4 qualified as to materiality shall be deemed true and correct, and those not so qualified shall be true and correct in all material respects, as of the date of this Agreement and as of the Closing as though made at and as of the Closing, except to have been satisfied without further notice.the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date);
(b) On Sellers shall have performed or before complied in all respects with all covenants and agreements qualified as to materiality, and those not so qualified shall be true and correct in all material respects, they are required to perform or comply with hereunder at or prior to the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Closing;
(ci) The Title Insurer Bidding Procedures Order entered on November 18, 2016 remains in full force and effect and has not been modified or amended since entry and (ii) the Sale Order (with any changes and/or modifications as to which Buyer may reasonably consent) shall deliver have been entered and shall have become a Final Order;
(d) Each of the agreements in the form attached hereto as Exhibit I shall have been executed and delivered by the applicable Seller(s) or Affiliates of Seller(s), as specified therein, and the Loan Agreements shall, as so assigned, be secured by the Mortgages;
(e) Each of the Assigned Contracts to which any Seller is a contracting party shall be assigned to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership by order of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted)Bankruptcy Court or, with respect to any Assigned Contract between the MPV Companies, by the applicable MPV Company;
(f) The Assigned Contracts and the Third Party Contracts shall be in full force and effect and shall not have been terminated, and since the date hereof, shall not have been amended, restated, supplemented or waived in any material respect. Except for any default by Sellers that shall be cured by operation of the Bankruptcy Code or the Sale Order, no party shall be, or shall have been, in default under an Assigned Contract or a Third Party Contract in any material respect, and no event shall have occurred that with the lapse of time or the giving of notice or both would constitute a default in any material respect thereunder;
(g) Sellers shall have obtained any other authorization, license or approval under applicable Law for Sellers to consummate the transactions contemplated by this Agreement;
(h) [intentionally omitted]
(i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages The Mortgage in area”), (iv) leases and parties in possession (which shall be replaced by a reference relation to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.m.
Appears in 2 contracts
Samples: Asset Purchase Agreement (International Shipholding Corp), Asset Purchase Agreement
Buyer’s Conditions Precedent. Buyer’s The obligation of Buyer to purchase consummate the Partnership Interests or otherwise to perform any obligation provided in transaction contemplated by this Agreement shall be conditioned upon is subject to the fulfillment fulfillment, before or on the closing date, of each of the following conditions precedentconditions, any one or a portion of which may be waived in writing by Buyer and shall be deemed waived upon closing of the transaction:
(a) On or before the expiration All representations and warranties made in this Agreement by Seller shall be true as of the Inspection Period, Buyer shall have inspected closing date as fully as though such representations and approved, in Buyer’s sole discretion, all aspects warranties had been made on and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration as of the Inspection Periodclosing date, written notice of the failure of the condition and Seller shall not have violated or failed to perform in accordance with any covenant set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice3.2.
(b) On Buyer shall have been assigned Seller's contract interests or before the respective dates provided for hereinhave entered into new contracts with any customer of Seller with respect to whom Buyer desires to do business, Seller shall havewhich contracts shall, in a timely fashionthe sole discretion of Buyer and its legal counsel, substantially performed each be acceptable in form and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreementsubstance.
(c) The Title Insurer Seller shall deliver have provided to Buyer at documents which shall, in the Closing at Buyer’s sole expense an endorsement to Owner’s Policy discretion of Title Insurance with respect to Buyer and its legal counsel, be acceptable in form and substance and which evidence the Partnership’s ownership termination of all UCC financing statements covering any portion of the Real Property as contemplated under Section 2.01 hereof Assets and the release of all liens against the Assets.
(d) Seller shall have provided to Buyer documents and/or information satisfactory to Buyer and its legal counsel, in their sole discretion, evidencing that the Assets, and the use thereof by Buyer in conduct of the Business, and in accordance with the CommitmentLicense Agreement will not infringe upon the patent, as it may trademark, copyright, or other intellectual property claim or right of any person including those of Seller.
(e) The parties shall have prepared the IRS Form 8594 or other document described in Section 1.5.
(f) Buyer shall have been modified assigned Seller's lease or have entered into a new lease with Xxxxxxxx International Trucks, Inc., which shall, in the sole discretion of Buyer and Buyer's legal counsel, be acceptable in form and substance.
(g) Buyer shall have been assigned Seller's leasehold interests or have entered into new lease agreements for the Premises identified in Exhibit 5.1 which shall, in the sole discretion of Buyer and Buyer's legal counsel, be acceptable in form and substance.
(h) Buyer shall be able to validly obtain all federal, state, and local environmental permits necessary to conduct the Business without interruption and on substantially the same terms and conditions as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect such permits granted to Seller.
(i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which Buyer shall be replaced by able to validly obtain a “reading” of local storm-water permit for discharge purposes on substantially the Survey same terms and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference conditions such permit was granted to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateSeller.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Business Assets (R B Rubber Products Inc)
Buyer’s Conditions Precedent. It is a condition precedent to the performance by Buyer of Buyer’s obligation to purchase 's obligations hereunder that, on or before the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of Closing Date, the following conditions precedentprecedent be satisfied:
(a) On or before the expiration Seller shall have completed construction of the Inspection PeriodProject in substantial accordance with the Construction Documents, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, as evidenced by delivery of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration a Certificate of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.Completion;
(b) On or before the respective dates provided for herein, Seller shall havehave delivered to Buyer a Certificate of Occupancy;
(c) Tenant shall have accepted delivery of the Project and the "Commencement Date", as defined in the Lease, shall have occurred, as evidenced by Seller's delivery of an Estoppel Certificate naming Buyer (or its designee) and Wachovia Bank, National Association as addressees, which Estoppel Certificate must be reasonably acceptable to Buyer, in Tenant's standard form, without any punch list items remaining, executed by Tenant pursuant to Section 26 of the Lease (the "Estoppel Certificate");
(d) The issuance of the Owner's Policy (or a timely fashion, substantially performed each and every covenant, undertaking and agreement written commitment therefore) subject only to be performed those matters approved or deemed approved by Seller Buyer pursuant to this Agreement.;
(ce) The Title Insurer shall deliver deposit with Escrow Agent of a letter from Seller to Tenant requesting that future rent under the Lease be paid to Buyer;
(f) The deposit with Escrow Agent of an executed final lien waiver by the general contractor, an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics' lien exception from the Owner's Policy;
(g) The delivery by Seller to Escrow Agent, for delivery to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership Closing, of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.original Transfer Documents;
Appears in 1 contract
Samples: Assignment of Agreement of Purchase and Sale (Cole Credit Property Trust II Inc)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligations to perform under this Agreement and to close escrow with respect to any Property are expressly subject to satisfaction of the following conditions on or before XXX (or such earlier date that is specified below):
(a) the delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the executed original Transfer Documents for such Property;
(b) the issuance of the Owner’s Policy (or a written commitment therefor) for such Property subject only to the Leases and Permitted Exceptions;
(c) the delivery by Seller to Buyer at XXX of all security deposits and pre-paid rents under the Lease for such Property, if any, in the form of a credit in favor of Buyer against the Purchase Price allocated to such Property;
(d) the deposit by Seller with Buyer not later than five (5) days prior to XXX of (i) as to the Lease for such Property, an original estoppel certificate (“Tenant Estoppel”), in a form reasonably acceptable to Buyer (or in the form required by the Lease, if so required in the Lease) (v) dated not more than thirty (30) days prior to XXX (provided that if Buyer extends XXX with respect to any Property as provided in Section 17, Seller shall not be required to obtain an updated Tenant Estoppel for such Property), (w) executed by Tenant and naming Buyer (or its designee) and any lender of which Buyer provides written notice to Seller pursuant to the notice provisions hereof (“Lender”) as addressees, (x) verifying the basic facts of such Lease (term, rental, expiration date, options, if any exist), (y) confirming that, to Tenant’s actual knowledge, there are no defaults by the landlord under such Lease, no unperformed or “punchlist” construction items, no unpaid tenant improvement allowances or leasing commissions and that no percentage rents or impounds are paid pursuant to such Lease (or specifying the amount(s) thereof), and (z) if Tenant’s obligations under such Lease have been guaranteed by another person or entity, also cover such guaranty and also be signed by such guarantor(s), and (ii) as to the Lease for such Property, a subordination, non-disturbance and attornment agreement executed by Tenant, in form and substance reasonably acceptable to Tenant, for the benefit of Lender (“SNDA”); provided, however, that Seller’s failure to obtain and provide to Buyer a Tenant Estoppel or SNDA despite its good faith and diligent efforts with respect to any Property shall not be an event of default hereunder, but merely a condition to Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:close;
(ae) On or before the deposit with Escrow Agent and Buyer prior to the expiration of the Inspection PeriodFirst Study Period for any Property of an executed waiver by Tenant of any right of first refusal under the Lease for such Property;
(f) the deposit with Escrow Agent of an executed final lien waiver by the general contractor, an executed affidavit of Seller, and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics’ lien exception from the Owner’s Policy for such Property, which other documentation may include an affidavit executed by Seller’s principals or parent entity if Seller is a single asset entity all in a commercially reasonable form;
(g) the delivery by Seller to Buyer of the final Certificate of Occupancy for such Property, if available in such jurisdiction, or, if not available, the jurisdictional equivalent of a Certificate of Occupancy, if any, or certification from Seller that no such documentation is issued by the applicable jurisdiction;
(h) the delivery by Seller to Buyer of the leasehold title insurance policy provided to Tenant for such Property (if required by the Lease for such Property);
(i) the deposit with Escrow Agent of a letter from Seller to Tenant requesting that future rent under the Lease for such Property be paid to Buyer;
(j) there has been no “Insolvency Event” with respect to any Tenant. As used in this subsection (l), an “Insolvency Event” shall have occurred if any Tenant becomes insolvent within the meaning of the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the “Bankruptcy Code”), files or notifies Seller or any affiliate of Seller that it intends to file a petition under the Bankruptcy Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, hereinafter, an “Action”), becomes the subject of either a petition under the Bankruptcy Code or an Action, or is not generally paying its debts as the same become due;
(k) delivery of the SEC Filing Information (as hereinafter defined) by Seller to Buyer not less than five (5) days prior to XXX;
(l) Tenant has accepted possession of such Property and is contractually obligated to pay, and has commenced payment of, full rent pursuant to the Lease for such Property;
(m) the delivery by Seller to Buyer of either (i) a three year latent defect warranty for Buyer’s benefit from either general contractor that constructed the Improvements or another entity reasonably acceptable to Buyer or (ii) an indemnity agreement in a form reasonably acceptable to Buyer executed by an entity reasonably acceptable Buyer indemnifying Buyer for any Claims (as defined below) that may arise on account of or in any way connected to the three year latent defect warranty described in the Leases;
(n) delivery to Buyer of the original, fully-executed Lease and guaranty executed by Dollar General Corporation with respect to such Property, and a copy of all exhibits, amendments and other modifications thereto, and, if seller is not the original landlord under any Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under such Lease; and
(o) delivery to Buyer of all originals in Seller’s possession and, if not in Seller’s possession, copies of all of the Contracts, Warranties and Permits for such Property including, without limitation, any warranties covering the roof or any other part of the Improvements and any warranties required under the Lease, and any correspondence with respect thereto. If the foregoing conditions have not been satisfied as to any Property by the specified date or XXX as the case may be, then Buyer shall have inspected and approvedthe right, in at Buyer’s sole discretionoption, by giving written notice to Seller and Escrow Agent on or before XXX (or within 10 days following the specified date, if such date is other than XXX), to (i) cancel this Agreement as it relates to such Property, whereupon the aggregate Purchase Price shall be reduced by the Purchase Price corresponding to each such Property, the portion of the Xxxxxxx Money Deposit corresponding to such Removed Property (i.e., $10,000.00) plus all aspects interest earned thereon shall be returned immediately to Buyer, and matters relating this Agreement shall continue in full force and effect as to all remaining Properties, (ii) waive such non-satisfaction and proceed to closing on such Property without any adjustment to the Purchase Price for such Property, of any nature whatsoever, or waived such approval, (iii) terminate this Agreement in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to its entirety. In the contrary, if event Buyer fails to deliver to Seller, on or before timely provide the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereofabove, then such condition Buyer shall be deemed to have been satisfied without elected to proceed under subparagraph (i) above. In the event this Agreement is terminated in its entirety, the Xxxxxxx Money Deposit shall be paid immediately by Escrow Agent to Buyer and, except as otherwise provided in this Agreement, neither of the Parties shall have any further notice.
(b) On liability or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to obligation under this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 1 contract
Samples: Master Purchase Agreement (Cole Credit Property Trust V, Inc.)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in Seller agrees that this Purchase Agreement shall be conditioned upon the fulfillment of Buyer satisfying itself, in its sole and absolute judgment, that the following conditions precedentprecedent with respect to the Property are met:
(a) On or before the expiration Buyer's inspection and approval of the Inspection PeriodLand, the Building, the Miscellaneous Improvements, Personal Property, the Other Agreements and the properties covered by 2101 Xxxxxxx Option and Phase II Option (as hereinbefore defined) and all other information required herein to be provided to Buyer by Seller, all during regular weekday business hours. Seller agrees to allow Buyer and its agents the right of any ingress or egress over and through the Property for the purpose of inspecting the same and making other observations as Buyer deems reasonably necessary. Buyer agrees to indemnify and hold Seller harmless from all injury, death or property damage or claims of any kind whatsoever including mechanic's liens arising out of or in any way incidental to Buyer's presence on the Property for the purposes aforesaid. This indemnity shall have inspected survive the termination of this Purchase Agreement, regardless of which party elects to terminate this Purchase Agreement. To the extent Seller has not already done so, Seller agrees to provide to Buyer copies of or allow Buyer access to the following items within two (2) days from the execution of this Purchase Agreement:
(i) copies of Plans and approvedSpecifications, blueprints, operating manuals, surveys and licenses, if any, in Buyer’s sole discretionSeller's possession, used to operate the Buildings and the remainder of the Property;
(ii) complete copies of all aspects service and matters relating maintenance contracts currently affecting the Property ("Other Agreements");
(iii) copies of all permits or authorizations, if any, in Seller's possession, required to be issued by any governmental body having jurisdiction in connection with any state of facts or activity presently existing or being carried on with respect to the Property;
(iv) copies of all warranties and guaranties, of any nature whatsoeverif any, or waived such approval, in Buyer’s sole which are still effective and absolute discretion; provided, that notwithstanding anything herein which pertain to the contrary, if Buyer fails to deliver to Seller, on Property or before the expiration any portion thereof ("Warranties");
(v) inventory of the Inspection Period, written notice Personal Property owned by the Seller and located on the Land and used in connection with the operation of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further noticeProperty.
(b) On Buyer may use the Property for its existing uses ("Current Uses") without being in violation of any zoning classification, land use classification, environmental requirement, or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed any other use classification or building classification or requirement established by Seller pursuant to this Agreementany entity or authority having legal jurisdiction or authority thereover.
(c) The Title Insurer shall deliver All utilities, including but not limited to electricity, gas, water (fire and domestic) storm and sanitary sewer, are available on site, through valid and adequate public or private easements for Current Uses; provided that in the case of private easements, they are appurtenant to the Property, or on the Property's side of abutting streets of size and capacity sufficient to serve the Current Uses.
(d) Buyer approving, as provided in Section V(A) hereof, the environmental audits provided to Buyer at for the Closing at Property or any additional reports obtained by Buyer’s sole expense an endorsement .
(e) Buyer obtaining satisfactory mortgage and equity financing for the Property on terms and conditions satisfactory to Owner’s Policy Buyer.
(f) Buyer's approval of Title Insurance with respect the License Agreement, Parking Easement and Management Agreement as defined in Sections XVIII and XXV hereof. This Purchase Agreement shall be deemed terminated and neither party liable to the Partnership’s ownership other herein unless Buyer affirmatively accepts or waives the foregoing conditions by paying to the Escrow Agent the Deposit by February 26, 1999 at 12:01 p.m. as required by Section II. Seller acknowledges that Buyer's election not to purchase the Property may be based upon Buyer's unwillingness to accept the condition of the Real Property as contemplated under Section 2.01 hereof properties covered by the 2101 Xxxxxxx Option and the Phase II Option, including but not limited to environmental. Notwithstanding the foregoing, Buyer may elect to terminate this Purchase Agreement between February 26, 1999 and the date of closing in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to event (i) taxes (except for taxes which are environmental testing done between such dates pursuant to Section V hereof reveal contamination not yet due and payable which are apportioned hereunder)previously known on February 26, 1999, or (ii) mechanic’s liensa change in any item referred to in (b) above occurs between February 26, 1999 and the date of closing so as to prohibit the use of the Property for Current Uses. Upon any such termination of this Purchase Agreement by Buyer, the Deposit (iiiother than the interest earned thereon) survey issues (which shall be replaced by a “reading” of the Survey returned to Buyer as provided in Section III hereof and an exception only for “shortages in area”), (iv) leases and all parties in possession (which hereto shall be replaced by a reference released from all duties and obligations to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used each other contained herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 1 contract
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation obligations to close escrow and complete the purchase of the Partnership Interests or otherwise to perform any obligation provided in Property under this Agreement shall be conditioned upon are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration Seller’s deposit with Escrow Agent, for delivery to Buyer at Closing, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On or before Seller’s delivery to Buyer of the respective dates estoppel certificate as provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Section 10 above;
(c) The Title Insurer shall deliver Seller’s deposit with Escrow Agent of (i) Escrow Agent’s customary form of “Owner’s Affidavit” and (ii) such additional affidavits, undertakings or other documents as may be reasonably required by Escrow Agent to Buyer at allow for the Closing at Buyerdeletion of any mechanics’ lien exceptions and other standard exceptions from the Owner’s sole expense an endorsement Policy;
(d) Escrow Agent’s irrevocable commitment to issue the Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring Price in the Partnership as owner of fee simple title form approved by Buyer pursuant to the Property subject only terms of Section 6; Purchase and Sale Agreement Academy Sports – Cartersville, GA
(e) Seller’s deposit with Escrow Agent of a letter from Seller to Tenant, complying with the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end notice requirements of the Inspection Period Lease and in form reasonably satisfactory to Buyer, directing that future rent under the Title Insurer has agreed Lease be paid to issue in the Title Commitment by the end Buyer;
(f) Seller’s delivery to Buyer at Closing of the Inspection Period. Seller or the Management Company original, fully-executed Lease (to the extent permitted in the possession of Seller or Seller’s agents) and, if Seller is not the original landlord under the Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under the Lease; and
(g) Seller’s delivery to Buyer of all Warranties, Permits, and Property Documents, if any, in the possession of Seller or Seller’s agents (including without limitation any warranties covering the roof or any other part of the Building); any Intangibles capable of physical delivery; and any non-proprietary leasing and property manuals, files and records applicable to or useful in connection with the continued operation, leasing and maintenance of the Property. If the foregoing conditions have not been satisfied by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the scheduled Closing Date, then Buyer will have the right, at Buyer’s sole option and without limiting any other right or remedy of Buyer, to extend Closing for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions, by giving written notice of such extension to Seller and Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Credit Property Trust V, Inc.)
Buyer’s Conditions Precedent. The obligations of Buyer to proceed with the Closing are subject, at the option of Buyer’s obligation , to purchase the Partnership Interests satisfaction, at or otherwise prior to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment Closing (unless waived by Buyer) of the following conditions precedent:
A. All representations and warranties of Seller contained in this Agreement are true in all material respects (aconsidering this Transaction as a whole and provided, however, that any such representation or warranty of Seller contained in Article 6 that is qualified by a materiality standard shall not be further qualified by materiality for purposes of this Article 10.2.A) On or before the expiration at and as of the Inspection Period, Buyer shall have inspected Closing in accordance with their terms as if such representations and approved, in Buyer’s sole discretion, all aspects warranties were remade at and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration as of the Inspection PeriodClosing;
B. Trilogy (i) has acquired Defensible Title (subject in all respects to any Known Title Defects and Known Environmental Defects that have been addressed as provided herein) to all right, written notice title and interest in the Assets that was previously owned by MRPC, including all present and future right, title and interest of MRPC under the terms of the failure of Farmout, (ii) has terminated the condition Farmout, and (iii) is duly qualified to sell, assign and convey to Buyer all right, title and interest in the Assets that was formerly owned by MRPC. Furthermore, the Assets that Trilogy has acquired from MRPC comply with the representations, warranties and covenants by Seller as set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof C. Seller has performed and in accordance with the Commitment, as it may have been modified as contemplated satisfied all covenants and agreements required by this Agreement (to be performed and satisfied by Seller at or prior to the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due Closing in all material respects;
D. No order has been entered by any court or governmental agency having jurisdiction over the Parties or the subject matter of this Agreement that restrains or prohibits this Transaction and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages that remains in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered effect at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy Closing; and, provided
E. Seller shall not incur any additional cost or liabilityhave obtained all Required Consents described in Exhibit D, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form none of the “marked-up” Title Commitment promptly after the Closing Datesuch Required Consents shall have been withdrawn.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Synergy Resources Corp)
Buyer’s Conditions Precedent. Buyer’s obligation Unless waived by Buyer in writing, the obligations of Buyer hereunder are subject to purchase the Partnership Interests fulfillment, prior to or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment at Closing, of each of the following conditions precedentconditions:
(a) On The representations and warranties of Seller contained in this Agreement or before in any Disclosure Schedule, exhibit, list, certificate or document delivered pursuant to the expiration provisions hereof shall be true and correct in all material respects (except for such representations and warranties that are qualified by their terms as to materiality, which representations and warranties shall be true in all respects) at and as of the Inspection PeriodClosing Date as though such representations and warranties were made at and as of such date, Buyer except and to the extent they relate solely to an earlier date.
(b) Seller shall have inspected performed or complied in all material respects with each of its agreements and approvedcovenants required by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) All the necessary consents, in Buyer’s sole discretion, all aspects approvals and matters relating authorizations of any Person or Governmental Authority prescribed by any Law or Contract to the Propertyconsummation by Seller of the Transaction shall have been obtained.
(d) All the necessary consents, approvals and authorizations of any nature whatsoeverthe Board of Directors, stockholders, preferred stockholders and the Senior Lender to the consummation by Buyer and QSGI of the Transaction shall have been obtained, subject to Section 6.1(e) below.
(e) If the consents, approvals and authorizations set forth in Section 6.1(d) above shall not have been obtained by Buyer or QSGI, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Sellerboth, on or before the expiration of ninetieth (90th) day from the Inspection PeriodEffective Date (the “Early Termination Date”), and if Buyer shall not have terminated this Agreement as provided in Section 11.1 by written notice of to Seller delivered not later than 10 days thereafter, or the failure of Closing Date, whichever occurs earlier, then this condition or the condition conditions set forth in Section 6.02 hereof6.1(d), then such condition as the case may be, shall be deemed to have been satisfied without further noticewaived by Buyer.
(bf) On There shall be no Action pending or before threatened (i) seeking to restrain, delay, prohibit, invalidate, set aside, enjoin or impose any conditions or restrictions upon the respective dates provided for hereinClosing of the Transaction or (ii) which could reasonably be expected to have a Material Adverse Effect on the Company, Seller and no injunction, judgment, order, decree or ruling with respect thereto shall have, exist or be in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreementeffect.
(cg) The Title Insurer shall deliver to Buyer at Since the Closing at Buyer’s sole expense an endorsement to Owner’s Policy date of Title Insurance this Agreement no change or event has occurred with respect to the Partnership’s ownership business, operations or financial condition of the Real Property as contemplated under Section 2.01 hereof Company which has had a Material Adverse Effect on the Company.
(h) The Company’s certificate of incorporation and in accordance with the Commitmentby-laws shall have been amended, as it may have been modified as contemplated and to the extent reasonably determined by this Agreement (Buyer, to include the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect ability of the Company to conduct any lawful business or activity.
(i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which Seller shall be replaced by a “reading” have removed from the Company all of the Survey real property, personal property and an exception only for “shortages in area”), (iv) leases intangible personal property belonging to the eSchool Business and parties in possession (which shall be replaced by a reference to “tenants under allocated any previously shared administrative expenses between the leases described eSchool Business and the Company on the Rent Roll delivered at Company’s books of account.
(j) Seller shall have obtained a release of all Liens on the ClosingShares and any other Liens on the business, as tenants only without any right properties or option to purchase all or any part other assets of the Property”Company, other than Permitted Liens and Liens securing Indebtedness being assumed or paid by Buyer.
(k) and (v) items raised after the effective date Seller shall have delivered to Buyer each of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, closing items listed in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateSection 9.1.
Appears in 1 contract
Samples: Stock Purchase Agreement (Qsgi Inc.)
Buyer’s Conditions Precedent. Buyer’s The obligation of the Buyer to purchase consummate the Partnership Interests transactions contemplated by this Agreement with respect to any Seller is subject to the satisfaction or otherwise waiver (subject to perform applicable Laws) at or prior to the Closing Date of each of the following conditions:
6.1 No preliminary or permanent injunction or other order will have been issued (and remain in force) by any obligation provided Governmental Authority having appropriate jurisdiction preventing consummation of the transactions contemplated by this Agreement;
6.2 No action will have been commenced or threatened against such Seller, the Buyer or any of their respective Affiliates, associates, officers or directors seeking to prevent or challenge the transactions contemplated by this Agreement or seeking material damages arising from the transactions contemplated by this Agreement;
6.3 All representations and warranties of such Seller contained herein (a) that are qualified by the term “material” or contain terms such as “material adverse change,” “material adverse effect” or other terms or Dollar amounts of similar import or effect (whether or not capitalized) shall be true and correct as of the Closing Date as though such representations and warranties were made at such time (except to the extent that a representation specifically relates to an earlier date, in which case as of such earlier date, but disregarding the reference to the date of this Agreement in the first sentence of Section 3), and (b) that are not so qualified shall be true and correct in all material respects as of the Closing Date as though such representations and warranties were made at such time (except to the extent that a representation specifically relates to an earlier date, in which case as of such earlier date, but disregarding the reference to the date of this Agreement in the first sentence of Section 3);
6.4 Such Seller will have performed or satisfied in all material respects on or prior to the Closing Date, all obligations, covenants, agreements and conditions contained in this Agreement shall to be conditioned upon performed or complied with by such Seller on or prior to the fulfillment of the following conditions precedent:Closing Date;
(a) On or before the expiration of the Inspection Period, Buyer 6.5 Such Seller shall have inspected executed and approved, in Buyer’s sole discretion, all aspects and matters relating to delivered a certificate from an officer of such Seller certifying on behalf of such Seller that the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition conditions set forth in Section 6.02 hereof, then such condition shall be deemed to 6.3 and Section 6.4 have been satisfied without further notice.fulfilled by such Seller;
(b) On or before the respective dates provided for herein6.6 If applicable, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership consummation of the Real Property as transactions contemplated under Section 2.01 hereof the terms of this Agreement is not prevented from occurring by (and in accordance with the Commitmentrequired waiting period, as it may if any, has expired under) the HSR Act and the rules and regulations of the FTC and DOJ thereunder and all consents and approvals of any Governmental Authority PURCHASE AND SALE AGREEMENT -44- required for the consummation of the transactions contemplated hereby, except for Customary Post-Closing Consents, shall have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.received;
Appears in 1 contract
Buyer’s Conditions Precedent. Buyer’s 's obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:
(a) On or before the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s 's sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s 's sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer Company shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s 's Policy of Title Insurance with respect to the Partnership’s 's ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “"Title Policy”"), with extended coverage (i.e. with General Standard Exceptions general standard exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s 's liens, (iii) survey issues (which shall be replaced by a “"reading” " of the Survey and an exception only for “"shortages in area”"), (iv) leases and parties in possession (which shall be replaced by a reference to “"tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”") and (v) items raised after the effective date of the Title CommitmentCommitment to the extent the same are acceptable or deemed acceptable by Buyer), issued by the Title Insurer Company at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s 's Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “"Buyer Endorsements” " shall mean such commercially reasonable and customary endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer Company has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) Partnership shall execute at the Closing an affidavit in such form as the Title Insurer Company shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer Company issues a currently effective, duly executed “"marked-up” " Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “"marked-up” " Title Commitment promptly after the Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Berkshire Income Realty Inc)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On the issuance of the Owner’s Policy (or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement written commitment therefor) subject only to be performed those matters approved or deemed approved by Seller Buyer pursuant to this Agreement.;
(c) The Title Insurer shall deliver the delivery by Seller to Buyer at XXX of all pre-paid rents under the Closing Lease, if any, in the form of a credit in favor of Buyer against the Purchase Price;
(d) the deposit by Seller with Buyer not later than three (3) business days prior to XXX of an original estoppel certificate in the form attached hereto as Exhibit I, dated not more than thirty (30) days prior to XXX executed by Tenant naming Buyer (or its designee) and any mortgage lender thereof which has been identified to Seller prior to delivery of such certificate to Tenant, and their respective successors and assigns as addressees and verifying the basic facts of the Lease (term, rental, expiration date, options, if any exist) and confirming that there are no defaults by the landlord under the Lease, no unperformed or “punchlist” construction items and no unpaid tenant improvement allowances or leasing commissions, which certificate must be reasonably acceptable to Buyer;
(e) intentionally deleted;
(f) the deposit with Escrow Agent of an executed final lien waiver by the general contractor, an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics’ lien exception from the Owner’s Policy;
(g) the delivery by Seller to Buyer of the final certificate of occupancy, issued by the applicable governing authorities for the Improvements;
(h) intentionally deleted;
(i) the deposit with Escrow Agent of a letter from Seller to Tenant requesting that future rent under the Lease be paid to Buyer;
(j) intentionally deleted;
(k) there has been no “Insolvency Event” with respect to the Tenant. As used in this subsection (k), an “Insolvency Event” shall have occurred if the Tenant becomes insolvent within the meaning of the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the “Bankruptcy Code”), files or notifies Seller or any affiliate of Seller that it intends to file a petition under the Bankruptcy Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, hereinafter, an “Action”), becomes the subject of either a petition under the Bankruptcy Code or an Action, or is not generally paying its debts as the same become due;
(l) Tenant has accepted possession of the Property and is contractually obligated to pay, and has commenced payment of, full rent pursuant to the Lease;
(m) delivery to Buyer of the original, fully-executed Lease, and a copy of all guaranties thereof, all exhibits, amendments and other modifications thereto, and, if seller is not the original landlord under the Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under the Lease; and
(n) delivery to Buyer of originals of the Contracts, Warranties and Permits, if any, in the possession of Seller or Seller’s agents, including, without limitation, any warranties covering the roof or any other part of the Improvements, and any correspondence with respect thereto, together with such non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance of the Property. If the foregoing conditions have not been satisfied by the specified date or XXX as the case may be, then Buyer shall have the right, at Buyer’s sole expense an endorsement option, by giving written notice to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof Seller and in accordance with the CommitmentEscrow Agent, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (cancel this Agreement, whereupon the Xxxxxxx Money Deposit shall be paid immediately by Escrow Agent to Buyer and, except for taxes which are not yet due and payable which are apportioned hereunder)as otherwise provided in this Agreement, neither of the Parties shall have any further liability or obligation under this Agreement, or (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closingextend such specified date or XXX, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment)applicable, issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the for such amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements time as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed deems reasonably necessary to issue in the Title Commitment by the end of the Inspection Period. allow Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in satisfy such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateconditions.
Appears in 1 contract
Samples: Purchase Agreement (Cole Corporate Income Trust, Inc.)
Buyer’s Conditions Precedent. Buyer’s The obligation of the Buyer to purchase consummate the Partnership Interests transactions contemplated by this Agreement with respect to the Seller is subject to the satisfaction or otherwise waiver (subject to perform applicable Laws) at or prior to the Closing Date of each of the following conditions:
6.1 No preliminary or permanent injunction or other order will have been issued (and remain in force) by any obligation provided Governmental Authority having appropriate jurisdiction preventing consummation of the transactions contemplated by this Agreement;
6.2 No action will have been commenced or threatened against the Seller, the Buyer or any of their respective Affiliates, associates, officers or directors seeking to prevent or challenge the transactions contemplated by this Agreement or seeking material damages arising from the transactions contemplated by this Agreement;
6.3 All representations and warranties of the Seller contained herein (a) that are qualified by the term “material” or contain terms such as “material adverse change,” “material adverse effect” or other terms or Dollar amounts of similar import or effect (whether or not capitalized) shall be true and correct as of the Closing Date as though such representations and warranties were made at such time (except to the extent that a representation specifically relates to an earlier date, in which case as of such earlier date, but disregarding the reference to the date of this Agreement in the first sentence of Section 3), and (b) that are not so qualified shall be true and correct in all material respects as of the Closing Date as though such representations and warranties were made at such time (except to the extent that a representation specifically relates to an earlier date, in which case as of such earlier date, but disregarding the reference to the date of this Agreement in the first sentence of Section 3);
6.4 The Seller will have performed or satisfied in all material respects on or prior to the Closing Date, all obligations, covenants, agreements and conditions contained in this Agreement to be performed or complied with by the Seller on or prior to the Closing Date;
6.5 The Seller shall be conditioned upon the fulfillment have executed and delivered a certificate from an officer of the following conditions precedent:
(a) On or before the expiration Seller certifying on behalf of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to Seller that the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition conditions set forth in Section 6.02 hereof6.3 and Section 6.4 have been fulfilled by the Seller;
6.6 If applicable, then consummation of the transactions contemplated under the terms of this Agreement is not prevented from occurring by (and the required waiting period, if any, has expired under) the HSR Act and the rules and regulations of the FTC and DOJ thereunder and all consents and approvals of any Governmental Authority required for the consummation of the transactions contemplated hereby, except for Customary Post-Closing Consents, shall have been received;
6.7 The Seller shall have received all consents and approvals (and all such condition consents and approvals shall be in full force and effect and not revoked) from OOGC America, Inc. (“CNOOC”) required under that certain Development Agreement by and PURCHASE AND SALE AGREEMENT -46- between the Seller and CNOOC, dated November 15, 2010 (the “Development Agreement”) to permit the Seller to transfer the Properties and the Leases (as defined in the Farmout Agreement) to the Buyer in accordance with the terms of this Agreement or the Farmout Agreement, as applicable, free and clear of any and all restrictions and other terms in the Development Agreement (other than any (i) existing joint operating agreements that were entered into, or (ii) any joint operating agreements that have been deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall haveentered into, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance case in connection with any Well or in connection with any well proposal made with respect to the Partnership’s ownership Properties).
6.8 The Seller shall deliver (or be ready, willing and able to deliver at Closing) duly executed counterparts of the Real Property as contemplated under Section 2.01 hereof and in accordance with Transaction Documents to be delivered by the CommitmentSeller at Closing; and
6.9 The Seller will not have sold, as it may have been modified as contemplated by this Agreement (the “Title Policy”)assigned, with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted)transferred, with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder)encumbered, (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” conveyed or otherwise disposed of any of the Survey and an exception only for “shortages Properties, except as provided in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part Section 5.2 of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datethis Agreement.
Appears in 1 contract
Buyer’s Conditions Precedent. The Buyer’s obligation 's obligations to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned close hereunder are contingent upon the fulfillment satisfaction or waiver by Buyer of all of the following conditions precedent:
precedent (acollectively, the "Buyer's Conditions Precedent") On at or before the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating prior to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
Closing (b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to unless otherwise indicated): (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder)no material default by the Seller under any covenant, (ii) mechanic’s liensrepresentation, (iii) survey issues (which shall be replaced by a “reading” warranty or obligation of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements Seller hereunder (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used set forth herein, the term “Buyer Endorsements” material default shall mean such endorsements as any condition(s) which could reasonably be expected to result in a loss or claim to the Buyer has requested of in excess of Thirty Thousand Dollars [$30,000.00] in the aggregate); (ii) delivery by Seller to Buyer of all the Consents and the Regulatory Approvals; (iii) dismissal with prejudice of the injunction action contemplated by the end lawsuit identified on SCHEDULE 8(A)(III) attached hereto ("Palm Beach Litigation"); (iv) Buyer being satisfied with the status of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end Palm Beach Litigation which determination Buyer shall make within five (5) business days following Buyer's receipt of the Inspection Period. Seller or order dismissing the Management Company (injunction action relating to the extent permitted by the Title InsurerPalm Beach Litigation; (v) shall execute at the Closing receipt of an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided executed comfort letter ("Comfort Letter") addressed to Seller shall not incur any additional cost or liability, and Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form attached hereto and made a part hereof as EXHIBIT 8(A)(V) attached hereto; (vi) there being no "Shareholder Challenge" or "Regulatory Challenge" (as those terms are hereinafter defined) pending or threatened; (vii) receipt of evidence of approval of this Agreement from the board of directors of the “marked-up” Title Commitment promptly after Seller ("Board Approval") on or prior to May 18, 1998; (viii) substitution of Homecare Holdings, Inc. for CTH under the Closing Date.guaranty of CTH for the Lease between Med Tech Services of South Florida, Inc. and Arbors Associates, Inc. dated April 1, 1997 ("Guaranty Substitution"); (ix) release of CTH from Corporate Guaranty dated July 26, 1996 by CTH in favor of Copelco Capital, Inc. securing the obligation of Logan Oncology Care Association, L.P. ("Copelco Release"); and (x) Bxxxx's receipt of all issued and outstanding shares of stock of Ricardo T. Baldonado, M.D.
Appears in 1 contract
Buyer’s Conditions Precedent. Buyer’s obligation The obligations of Buyer at the Closing are subject to purchase the Partnership Interests satisfaction or otherwise waiver at or prior to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment Closing of the following conditions precedent:
(a) On or before Subject to Section 11.2(h), all representations and warranties of Seller contained in this Agreement are true and correct in all material respects (considering the expiration transactions contemplated by the Agreement as a whole) at and as of the Inspection Period, Buyer shall have inspected Closing in accordance with their terms as if such representations and approved, in Buyer’s sole discretion, all aspects warranties were made at and matters relating as of the Closing (except to the Propertyextent such representations or warranties are as of a specific time in which case as of such other time), of any nature whatsoever, and Seller has performed and satisfied all covenants and agreements required by this Agreement to be performed and satisfied by Seller at or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein prior to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth Closing in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further noticeall material respects.
(b) On or before The board of directors of the respective dates provided for herein, Seller Buyer shall have, in a timely fashion, substantially performed each have approved the terms and every covenant, undertaking and agreement to be performed by Seller pursuant to conditions of this Agreement.
(c) The Title Insurer Buyer shall have completed its technical and financial due diligence, including Buyer’s receipt of a third party reserve report by the Buyer’s auditor.
(d) The Buyer shall have received conditional approval of the transactions contemplated by this Agreement from the Exchange on or prior to the Closing Date.
(e) Buyer shall have received at or prior to the Closing Date a favorable legal opinion from counsel to the Seller, addressed to Buyer, in form and substance acceptable to counsel to Buyer, acting reasonably, to the effect that:
(1) the Seller is a corporation incorporated under the laws of the State of Nevada, and has all requisite corporate capacity and power to carry on business;
(2) the execution and delivery of the Agreement and the performance by the Seller, of the transactions contemplated therein, do not result in a breach of and do not conflict with or constitute a default under the articles of incorporation of the Seller, the by-laws of the Seller, or any resolution of the Seller’s directors (or any committee thereof) or shareholders;
(3) the Seller has all requisite capacity and power to execute and deliver the Agreement and to perform all its obligations thereunder. All necessary corporate action has been taken by the Seller to authorize the execution and delivery of the Agreement and the performance by the Seller of its obligations thereunder. The Agreement has been duly authorized, executed and delivered by the Seller and constitutes valid and legally binding obligations of the Seller enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, liquidation, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and the qualification that the enforceability of rights of indemnity and contribution may be limited by applicable law;
(4) such other matters as Buyer may reasonably request in connection with the transaction; and in giving the opinions contemplated above, counsel to the Seller shall be entitled, as to matters of fact, to rely upon certificates of fact from the Seller, signed by the President or other officer of the Seller in position to have knowledge of such facts and their accuracy, certificates of such public officials and other Persons as are necessary or desirable, and certificates of the Transfer Agent as to the number of Common Shares issued and outstanding;
(f) Buyer shall have received an opinion or opinions from Seller’s Montana counsel with respect to title to the Lands and Leases located in Montana, in form and content satisfactory to Buyer at and its counsel;
(g) Buyer shall have received a certificate of the Seller dated as of the Closing at Date, signed by the President, Chief Executive Officer or Chief Financial Officer of the Seller, or by such other officers as may be acceptable to Buyer’s sole expense an endorsement , certifying, to Owner’s Policy the best of Title Insurance the knowledge, information and beliefs of such officers after due inquiry, on behalf of the Seller and not in their personal capacities, as to certain matters reasonably requested by Buyer with respect to the Partnership’s ownership Seller including certification that:
(1) no order prohibiting the transaction has been issued and no proceedings for such purpose are pending or, to the knowledge of the Real Property Seller, threatened; and
(2) all of the representations and warranties of the Seller contained in the Agreement, are true and correct and all covenants, terms and conditions relating to the Seller contained herein, and required to be performed and complied with by the Seller on or as contemplated under Section 2.01 hereof and in accordance with or the Commitment, as it may Closing have been modified performed and complied with by the Seller;
(h) Seller shall have provided Buyer with evidence satisfactory to Buyer in its sole discretion that Seller has Defensible Title to not less than 75% of the aggregate area of the Lands which constitute the Fiddler Creek Property;
(i) Seller shall have received approval from all regulatory bodies necessary for the Unit Agreement to become effective and the Unit Agreement shall be in full force and effect unamended as contemplated by this of Closing;
(j) Seller shall have obtained all necessary Authorizations to permit it to drill the Unit Well and Seller shall, prior to October 31, 2007, have spudded and commenced the drilling of and thereafter diligently pursued the drilling of the Unit Well required to fulfill the initial well commitment under the Unit Agreement and shall have completed all such actions as are necessary to maintain the Leases in full force and effect and good standing;
(k) each of the “Title Policy”)American/Savannah Agreements referenced in Section 7.2(dd) among MAB, with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), Savannah and AOGI shall have been terminated with respect to the Fiddler Creek Area, and be of no further force and effect and any and all claims by Savannah and MAB thereunder or otherwise with respect to the Assets shall have been waived and Buyer shall have entered into an agreement with Savannah to be effective as of and subject to Closing pursuant to which Buyer has granted an overriding royalty interest to Savannah as to any future leases covering lands within the Fiddler Creek Area; and
(il) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” as of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part covenants, agreements and obligations of the Property”) Seller required to be performed or complied with on or before the Closing shall have been so performed or complied with and (v) items raised after the effective date of the Title Commitment), issued all conditions required to be complied with by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datehave been complied with.
Appears in 1 contract
Samples: Purchase and Sale Agreement (PetroHunter Energy Corp)
Buyer’s Conditions Precedent. Buyer’s obligation The obligations of Buyer at the Closing are subject to purchase the Partnership Interests satisfaction or otherwise waiver at or prior to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment Closing of the following conditions precedent:precedent (collectively, the “Buyer’s Conditions”): (a)
(ai) On or before the expiration The representations and warranties of Seller made in this Agreement will be true and correct in all material respects as of the Inspection PeriodClosing Date, Buyer as if remade on the Closing Date (without duplication of any “materiality” qualifiers in the representations and warranties themselves); and (ii) Seller shall have inspected performed or complied in all material respects with all of the covenants and approvedagreements required of Seller under this Agreement to be performed at or prior to Closing; (b) No Additional Required Consent, which has not been obtained, would cause Closing of the Transaction to be in Buyerviolation of applicable law which would result in (1) criminal liability to Buyer or Seller or (ii) a material civil fine or penalty to Buyer or Seller; (c) No order has been entered by any court or governmental agency having jurisdiction over the Parties or the subject matter of this Agreement that restrains or prohibits the Transaction and that remains in effect at the time of Closing; (d) The Bankruptcy Court shall have approved in connection with the Bankruptcy Case the Transaction contemplated by this Agreement; and (e) Seller shall have delivered at Closing all Seller Closing Deliveries unless Seller’s sole discretion, all aspects and matters relating failure to deliver the Property, Seller Closing Deliveries results from Seller’s termination of any nature whatsoever, or waived such approval, this Agreement as a result of its termination rights under Section 8.1 above as a result of a failure of Seller’s Conditions. Notwithstanding anything set forth in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein this Agreement to the contrary, if Buyer fails to deliver to Seller, on or before any Buyer’s Condition has not been satisfied by the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereofClosing Date, then Buyer may, as Buyer’s sole and exclusive remedy with respect to such condition Buyer’s Condition, either (1) terminate this Agreement, in which case the Parties shall have no further rights or obligations hereunder except those which expressly survive termination, or (2) proceed to Closing, in which case such Buyer’s Condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided be waived for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptionspurposes. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.ARTICLE
Appears in 1 contract
Samples: Purchase and Sale Agreement (CorEnergy Infrastructure Trust, Inc.)
Buyer’s Conditions Precedent. Buyer’s The obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:
(a) On or before Buyer to consummate the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as transactions contemplated by this Agreement is subject to the satisfaction or waiver in writing by the Buyer (subject to applicable Laws) at or prior to the Closing Date of each of the following conditions:
6.1 No preliminary or permanent injunction or other order will have been issued (and remain in force) by any Governmental Authority having appropriate jurisdiction preventing consummation of the transactions contemplated by this Agreement;
6.2 No Proceeding will have been commenced or threatened against any of the Sellers, the Buyer or any of their respective Affiliates, associates, officers or directors by any third party seeking to prevent or challenge the transactions contemplated by this Agreement or seeking material damages arising from the transactions contemplated by this Agreement;
6.3 All representations and warranties of each of the Sellers contained herein (a) that are qualified by the term “Title Policy”), with extended coverage material” or contain terms such as “material adverse change,” “material adverse effect” or other terms or Dollar amounts of similar import or effect (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (iwhether or not capitalized) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey true and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable correct as of the date Closing Date as though such representations and warranties were made at such time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (except to the extent permitted by the Title Insurerthat a representation specifically relates to an earlier date, in which case as of such earlier date), and (b) that are not so qualified shall execute at be true and correct in all material respects as of the Closing Date as though such representations and warranties were made at such time (except to the extent that a representation specifically relates to an affidavit earlier date, in which case as of such form as the Title Insurer shall reasonably require for the issuance earlier date);
6.4 Each of the Title Policy and, provided Seller shall not incur any additional cost Sellers will have performed or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits satisfied in writing all material respects on or prior to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date., all obligations, covenants, agreements and conditions contained in this Agreement to be performed or complied with by the Sellers on or prior to the Closing Date;
6.5 No Material Adverse Effect described in clause (a) of the definition of “Material Adverse Effect” shall have occurred since the Execution Date and be continuing as of the Closing Date;
Appears in 1 contract
Samples: Purchase and Sale Agreement
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On the issuance of the Owner’s Policies (or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement written commitment therefor) subject only to be performed those matters approved or deemed approved by Seller Buyer pursuant to this Agreement.;
(c) The Title Insurer shall deliver the delivery by Seller to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy XXX of Title Insurance with respect to the Partnership’s ownership all security deposits and pre-paid/abated rents under each of the Real Property as contemplated under Section 2.01 hereof and Leases, if any, in accordance the form of a credit in favor of Buyer against the Purchase Price;
(d) the deposit by Seller with the CommitmentBuyer not later than five (5) days prior to XXX of, as it may have been modified as contemplated by this Agreement (the “Title Policy”)to each Lease, with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted)an original estoppel certificate, with respect in a form reasonably acceptable to Buyer (i) taxes dated not more than thirty (except for taxes which are not yet due and payable which are apportioned hereunder)30) days prior to XXX, (ii) mechanic’s liensexecuted by Tenant and naming Buyer (or its designee), JPMorgan Chase Bank, N.A., a national banking association, as administrative agent, and any lender of which Buyer provides written notice to Seller pursuant to the notice provisions hereof (collectively, “Lender”) as addressees, (iii) survey issues verifying the basic facts of such Lease (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”term, rental, expiration date, options, if any exist), (iv) leases confirming that there are no defaults by the landlord under such Lease and parties in possession that no percentage rents or impounds are paid pursuant to such Lease (which shall or specifying the amount(s) thereof), (v) confirming that Tenant has waived its right of first offer under such Lease (it being agreed, however, that Seller may provide Buyer with a separate letter from Tenant, addressed to Buyer, confirming such waiver), and (vi) if Tenant’s obligations under such Lease have been guaranteed by another person or entity, also cover such guaranty and also be replaced signed by a reference such guarantor(s);
(e) if and to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part extent required of the Propertyother parties pursuant to the terms of any REA (defined below), the deposit by Seller with Buyer not later than five (5) days prior to XXX of an original estoppel certificate executed by all other parties to any applicable reciprocal easement agreement or declaration of covenants, conditions and/or restrictions, if any, encumbering any Property (the “REA’s”) and addressed or certified to Buyer and Lender stating that such instrument is in full force and effect and is not modified (vexcept as disclosed in such estoppel certificate) items raised after and, to the effective date knowledge of the Title Commitment), issued by party giving the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used hereinestoppel, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by other party or parties thereto is/are not in default under the end applicable instrument and all amounts, if any, owing under the applicable agreement have been paid in full;
(f) the deposit with Escrow Agent of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end an executed affidavit of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.attached hereto as Exhibit F;
Appears in 1 contract
Samples: Master Purchase Agreement (Cole Credit Property Trust Iv, Inc.)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On the delivery by Seller to Escrow Agent, for delivery to Buyer at CXX, of the executed original Transfer Documents;
(b) the issuance of the Owner’s Policies (or before a written commitment therefor) subject only to those matters approved or deemed approved by Buyer pursuant to this Agreement;
(c) the deposit by Seller with Buyer not later than five (5) business days prior to CXX of (i) original estoppel certificates executed by Tenant with respect to each of the Leases naming Buyer (or its designee) and Buyer’s lender, and their successors and assigns, as addressees, which certificates must be reasonably acceptable to Buyer, and, (ii) original subordination, non-disturbance and attornment agreements executed by Tenant with respect to each of the Leases in form and substance reasonably acceptable to Tenant, for the benefit of Buyer’s lender, with such form of agreement to be agreed upon prior to the expiration of the Inspection Study Period;
(d) the deposit with Escrow Agent of an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics’ lien exception from each of the Owner’s Policies;
(e) delivery of the SEC Filing Information (as hereinafter defined) and the SEC Filings Letter (as hereinafter defined) by Seller to Buyer not less than five (5) days prior to CXX;
(f) delivery to Buyer of copies of executed terminations of the Existing Leases between Seller and Tenant in a form reasonably acceptable to Buyer;
(g) delivery to Buyer of the original Leases with respect to the Properties executed by Tenant and in the form agreed upon prior to the end of the Study Period; and
(h) delivery to Buyer of originals of the Contracts and Permits, if any, in the possession of Seller or Seller’s agents, and any correspondence with respect thereto, together with such non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance with respect to each of the Properties. If the foregoing conditions have not been satisfied as to any Property by the specified date or CXX as the case may be, then Buyer shall have inspected and approvedthe right, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement option, by giving written notice to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof Seller and in accordance with the CommitmentEscrow Agent, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes cancel this Agreement as it relates to such Property (except for taxes which are not yet due and payable which are apportioned hereundereach such Property, a “Removed Property”), whereupon the Purchase Price shall be reduced by the amount corresponding to such Property as set forth on Exhibit A attached hereto and this Agreement shall continue in full force and effect as to all remaining Properties, or (ii) mechanicextend such specified date or CXX, as applicable, for such Properties or all the Properties, at Buyer’s liensoption, for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions, provided, however, that such amount of time shall not exceed thirty (iii30) survey issues (which days following the originally scheduled CXX date. In the event this Agreement is canceled for all of the Properties, the Exxxxxx Money Deposit plus interest shall be replaced paid immediately by a “reading” Escrow Agent to Buyer and, except as otherwise provided in this Agreement, neither of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which Parties shall be replaced by a reference to “tenants have any further liability or obligation under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datethis Agreement.
Appears in 1 contract
Samples: Master Purchase Agreement (Cole Credit Property Trust II Inc)
Buyer’s Conditions Precedent. Buyer’s The obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:
(a) On or before Buyer to consummate the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as transactions contemplated by this Agreement is subject to the satisfaction or waiver (subject to applicable law) at or prior to the “Title Policy”)Closing Date of each of the following conditions: (a) no preliminary or permanent injunction or other order will have been issued by any court of competent jurisdiction or any regulatory body preventing consummation of the transactions contemplated by this Agreement; (b) no action will have been commenced or threatened against the Seller, the Corporation, any Subsidiary, the Buyer or any of their respective affiliates, associates, officers or directors seeking damages arising from, to prevent or challenge the transactions contemplated by this Agreement; (c) all representations and warranties of the Seller contained herein will be true and correct in all material respects on and as of the Closing Date; (d) the Seller will have performed or satisfied on and as of the Closing Date, all obligations, covenants, agreements and conditions contained in this Agreement to be performed or complied with extended coverage by the Seller including the sale of all of the Acquisition Shares; (i.e. e) all actions, proceedings, instruments and documents required to carry out the transactions contemplated hereby will have been satisfactory to the Buyer and the Buyer's counsel, and the Seller will have delivered such additional certificates and other documents as the Buyer reasonably requests including, without limitation, such certificates of the Seller dated the Closing Date evidencing compliance with General Standard Exceptions 1 through 5 deleted)the conditions set forth in this paragraph 6; (f) there will have been no material adverse change in the business or condition of the Corporation, with respect to any Subsidiary or the Buyer's business; (g) the Buyer will have obtained any necessary approvals or clearance for this transaction required by the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976; (h) the Shares will constitute not less than 25.7426% of all of the outstanding shares of the RAM Common Stock; (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under Buyer will have reached such agreements with the leases described on Noteholders as the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title PolicyBuyer determines, in the amount Buyer's sole discretion, to be necessary to facilitate the closing of this transaction; (j) the Buyer will have completed the Buyer's due diligence pursuant to paragraph 5.2 of this Agreement and determined to consummate the transaction; and (k) the Buyer will have acquired all of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner RAM Common Stock owned by Annix Xxxxxx Xxxnet and such stock will constitute not less than 24.75% of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end all of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end outstanding shares of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateRAM Common Stock.
Appears in 1 contract
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in Seller agrees that this Purchase Agreement shall be conditioned upon the fulfillment of Buyer satisfying itself, in its sole and absolute judgment, that the following conditions precedentprecedent with respect to the Property are met:
(a) On or before the expiration Buyer's inspection and approval of the Inspection PeriodLand, the Building, the Parking Land, Personal Property, the Other Agreements (as hereinafter defined) and all other information required herein to be provided to Buyer by Seller, all during regular weekday business hours. Seller agrees to allow Buyer and its agents the right of any ingress or egress over and through the Property for the purpose of inspecting the same and making other observations as Buyer deems reasonably necessary. Buyer agrees to indemnify and hold Seller harmless from all injury, death or property damage or claims of any kind whatsoever including mechanic's liens arising out of or in any way incidental to Buyer's presence on the Property for the purposes aforesaid. This indemnity shall have inspected survive the termination of this Purchase Agreement, regardless of which party elects to terminate this Purchase Agreement. To the extent Seller has not already done so, Seller agrees to provide to Buyer or allow Buyer access to the following items within ten (10) days from the execution of this Purchase Agreement:
(i) copies of Plans and approvedSpecifications, blueprints, operating manuals, surveys and licenses, if any, in Buyer’s sole discretionSeller's possession, used to operate the Building and the remainder of the Property;
(ii) complete copies of all aspects contracts ("Other Agreements") and matters relating leases ("Leases") currently affecting the Property;
(iii) copies of all permits or authorizations, if any, in Seller's possession, required to be issued by any governmental body having jurisdiction in connection with any state of facts or activity presently existing or being carried on with respect to the Property;
(iv) copies of all warranties and guaranties, of any nature whatsoeverif any, or waived such approval, in Buyer’s sole which are still effective and absolute discretion; provided, that notwithstanding anything herein which pertain to the contrary, if Buyer fails to deliver to Seller, on Property or before the expiration any portion thereof ("Warranties");
(v) inventory of the Inspection Period, written notice Personal Property owned by the Seller and located on the Land and used in connection with the operation of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.Property;
(b) On Buyer may use the Property for its existing uses and it uses of the property located at 2201 Kennedy, 614 McKinley and 000 XxKinley xs of Febrxxxx, 0099 ("Current Uses") without being in violation of any zoning classification, land use classification, environmental requirement, or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed any other use classification or building classification or requirement established by Seller pursuant to this Agreementany entity or authority having legal jurisdiction or authority thereover.
(c) The Title Insurer All utilities, including but not limited to electricity, gas, water (fire and domestic) storm and sanitary sewer, are available on site, through valid and adequate public or private easements for Current Uses; provided that in the case of private easements, they are appurtenant to the Property, or on the Property's side of abutting streets of size and capacity sufficient to serve the Current Uses.
(d) Buyer approving, as provided in Section V(A) hereof, any environmental audits for the Property.
(e) Within thirty (30) days of the date of this Purchase Agreement, Seller shall deliver provide Buyer with original estoppel certificates from all tenants of the Property in form reasonably acceptable to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership extent Seller is able to obtain the same by exercising its best effort. This Purchase Agreement shall be deemed terminated and neither party liable to the other herein unless Buyer affirmatively accepts or waives in writing to Seller the foregoing conditions by January 15, 2005. Upon any such termination of this Purchase Agreement by Buyer failing to waive or accept all of the Real Property foregoing conditions or as contemplated provided in the last sentence of this Section, all parties hereto shall be released from all duties and obligations to each other contained herein (except for Buyer's Indemnity under Section 2.01 hereof Sections IV(a) and V(A) hereof) and upon such termination Buyer shall be entitled to a partial or full refund as described in accordance with Sections III(b) or III(c) hereof. Notwithstanding the Commitmentforegoing, as it Buyer may have been modified as contemplated by elect to terminate this Purchase Agreement (between January 15, 2005 and the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to date of closing in the event (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder)environmental testing done between such dates pursuant to Section V hereof reveal a contamination previously unknown on January 15, 2005, or (ii) mechanic’s liensa change in any item referred to in (b) above occurs between January 15, (iii) survey issues (which shall be replaced by a “reading” 2005 and the date of closing so as to prohibit the use of the Survey and an exception only Property for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateCurrent Uses.
Appears in 1 contract
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation obligations to close escrow and complete the purchase of each, and all, of the Partnership Interests or otherwise to perform any obligation provided in Properties under this Agreement shall be conditioned upon the fulfillment of are expressly subject to the following conditions precedentwith respect to each Property:
(a) On or before the expiration Seller’s deposit with Escrow Agent, for delivery to Buyer at Closing, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On or before Seller’s delivery to Buyer of the respective dates estoppel certificate as provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Section 10 above;
(c) The Title Insurer shall deliver Seller’s deposit with Escrow Agent of (i) Escrow Agent’s customary form of “Owner’s Affidavit” and (ii) such additional affidavits, undertakings or other documents as may be reasonably required by Escrow Agent to Buyer at allow for the Closing at Buyerdeletion of any mechanics’ lien exceptions and other standard exceptions from the Owner’s sole expense an endorsement Policy;
(d) Escrow Agent’s irrevocable commitment to issue the Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring Price in the Partnership as owner of fee simple title form approved by Buyer pursuant to the Property subject only terms of Section 6;
(e) Seller’s deposit with Escrow Agent of a letter from Seller to Tenant, complying with the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end notice requirements of the Inspection Period respective Lease and in form reasonably satisfactory to Buyer, directing that future rent under the Title Insurer has agreed Lease be paid to issue in the Title Commitment by the end Buyer;
(f) Seller’s delivery to Buyer at Closing of the Inspection Period. Seller or the Management Company original, fully-executed Lease (to the extent permitted in the possession of Seller or Seller’s agents) and, if Seller is not the original landlord under any Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under such Lease; and
(g) Seller’s delivery to Buyer of all Warranties, Permits, and Property Documents, if any, in the possession of Seller or Seller’s agents (including without limitation any warranties covering the roof or any other part of the Building); any Intangibles capable of physical delivery; and any non-proprietary leasing and property manuals, files and records applicable to or useful in connection with the continued operation, leasing and maintenance of such Property. If the foregoing conditions have not been satisfied by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the scheduled Closing Date, then Buyer will have the right, at Buyer’s sole option and without limiting any other right or remedy of Buyer, to extend Closing for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions, by giving written notice of such extension to Seller and Escrow Agent.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Cole Credit Property Trust V, Inc.)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On the issuance of the Owner’s Policy (or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement written commitment therefor) subject only to be performed those matters approved or deemed approved by Seller Buyer pursuant to this Agreement.;
(c) The Title Insurer shall deliver the delivery by Seller to Buyer at XXX of all security deposits and pre-paid/abated rents under the Closing Lease, if any, in the form of a credit in favor of Buyer against the Purchase Price;
(d) the deposit by Seller with Buyer not later than five (5) days prior to XXX of an original estoppel certificate dated not more than thirty (30) days prior to XXX executed by Tenant naming Buyer (or its designee) as addressee and verifying the basic facts of the Lease (term, rental, expiration date, options, if any exist) and confirming that there are no defaults by the landlord under the Lease, no unpaid tenant improvement allowances or leasing commissions, which certificate must be reasonably acceptable to Buyer;
(e) reserved;
(f) the delivery by Seller to Buyer of the final Certificate of Occupancy for the Improvements;
(g) the delivery by Seller to Buyer of an architect’s affidavit in the form attached hereto as Exhibit F;
(h) the delivery by Seller to Buyer of a copy of the leasehold title insurance policy provided to Tenant;
(i) the deposit with Escrow Agent of a letter from Seller to Tenant requesting that future rent under the Lease be paid to Buyer;
(j) to the extent the Property is subject to zoning regulations, the receipt by Buyer of evidence reasonably satisfactory to Buyer that the Property is properly zoned for its intended use and that the Property is in full compliance with all such zoning regulations;
(k) there has been no “Insolvency Event” with respect to the Tenant. As used in this subsection (l), an “Insolvency Event” shall have occurred if the Tenant becomes insolvent within the meaning of the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the “Bankruptcy Code”), files or notifies Seller or any affiliate of Seller that it intends to file a petition under the Bankruptcy Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, hereinafter, an “Action”), becomes the subject of either a petition under the Bankruptcy Code or an Action, or is not generally paying its debts as the same become due;
(l) delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the original, fully-executed Lease, and a copy of all guaranties thereof, all exhibits, amendments and other modifications thereto, and, if seller is not the original landlord under the Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under the Lease; and
(m) delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of originals of the Contracts and Permits, if any, in the possession of Seller or Seller’s agents, including, without limitation, any warranties covering the roof or any other part of the Improvements, and any correspondence with respect thereto, together with such non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance of the Property. If the foregoing conditions have not been satisfied by the specified date or XXX as the case may be, then Buyer shall have the right, at Buyer’s sole expense an endorsement option, by giving written notice to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof Seller and in accordance with the CommitmentEscrow Agent, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (cancel this Agreement, whereupon the Xxxxxxx Money Deposit shall be paid immediately by Escrow Agent to Buyer and, except for taxes which are not yet due and payable which are apportioned hereunder)as otherwise provided in this Agreement, neither of the Parties shall have any further liability or obligation under this Agreement, or (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closingextend such specified date or XXX, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment)applicable, issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the for such amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements time as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed deems reasonably necessary to issue in the Title Commitment by the end of the Inspection Period. allow Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in satisfy such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateconditions.
Appears in 1 contract
Samples: Purchase Agreement (Cole Credit Property Trust Iv, Inc.)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in The obligations of Buyer under this Agreement shall be conditioned upon to proceed with the transactions contemplated hereby are, at the option of Buyer, subject to the fulfillment of the following conditions precedentat or prior to the Closing:
(a) On no action, suit or proceeding shall have been instituted against Buyer or Seller by, in or before any court, tribunal or governmental body or agency (other than any involving matters coming within the expiration jurisdiction of the Inspection PeriodFCC), Buyer shall have inspected and approvedbe unresolved, in Buyer’s sole discretion, all aspects and matters relating each case to the Property, of any nature whatsoeverrestrain or prevent, or waived such approvalto obtain substantial damages by reason of, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration any of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.transactions contemplated hereby;
(b) On or before the respective dates provided for herein, representations and warranties of Seller shall have, contained in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement., any Schedules and Exhibits hereto and/or any certificates or documents delivered in connection with this Agreement shall be true and correct in all material respects when made, and shall also be true and correct in all material respects at the time of Closing with the same force and effect as though such representations and warranties were made at that time, except for changes expressly permitted by this Agreement;
(c) The Title Insurer shall deliver each covenant, agreement and obligation required by the terms of this Agreement to Buyer be complied with and performed by Seller at or prior to the Closing at Buyer’s sole expense an endorsement shall have been duly and properly complied with and performed;
(d) the Final Order shall have been granted by the Commission and Buyer shall be entitled to Owner’s Policy be the holder of Title Insurance with respect to the Partnership’s ownership each of the Real Property as contemplated under Section 2.01 hereof and in accordance with the CommitmentCommission Authorizations;
(e) Buyer shall have received an opinion of Seller's counsel, as it may have been modified as contemplated by this Agreement (the “Title Policy”)Straxxx & Xroy, with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted)XXA, with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”)opinion of Seller's special communications counsel, (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after each dated the Closing Date, addressed to Buyer and favorably opining as to the matters included in EXHIBITS 4.5(e)(i) AND 4.5(e)(ii) hereto; and
(f) there shall be delivered to and for the benefit of Buyer a certificate of the Seller executed on the Closing Date that the conditions set forth in subsections (b) through (d) of this Section 4.5 have been fulfilled.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Regent Communications Inc)
Buyer’s Conditions Precedent. Buyer’s obligation Subject to purchase the Partnership Interests or otherwise provisions of Section 9.3 hereof, Seller has provided and/or shall provide Buyer and its consultants and other agents and representatives with access to the Property to perform any obligation provided in this Agreement shall be conditioned upon Buyer's inspections and review and determine the fulfillment present condition of the following conditions precedent:
(a) On Property. Seller has either delivered to Buyer's offices or before the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver made available to Buyer at the Closing at Buyer’s sole expense an endorsement Property copies of all Due Diligence Materials (as defined in Section 2.2 below) in Seller's possession or reasonably accessible to Owner’s Policy of Title Insurance with respect Seller, except as otherwise specifically provided herein. Notwithstanding anything to the Partnership’s ownership contrary contained herein, the Due Diligence Materials shall expressly exclude (i) those portions of the Due Diligence Materials that would disclose Seller's cost of acquisition of the Real Property, or cost of construction of the Improvements and related soft costs, or any estimates of costs to repair, replace, remediate or maintain the Real Property, (ii) any reports, presentations, summaries and the like prepared for any of Seller's boards, committees, partners or investors in connection with its consideration of the acquisition of the Real Property, construction of the Improvements or sale of the Property, (iii) any proposals, letters of intent, draft contracts or the like prepared by or for other prospective purchasers of the Property as contemplated under Section 2.01 hereof or any part thereof, (iv) Seller's internal memoranda, attorney-client privileged materials, or internal appraisals, and in accordance with (v) any information which is the Commitment, as it may have been modified as contemplated by this Agreement subject of a confidentiality agreement between Seller and a third party (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to items described in clauses (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after being collectively referred to as the effective date "CONFIDENTIAL INFORMATION"). Buyer's obligation to purchase the Property is conditioned upon Buyer's review and approval of the following, within the applicable time periods described in Sections 2.2 and 4.1 hereof:
(A) Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only and survey matters in accordance with Article IV below.
(B) The Due Diligence Materials, including, but not limited to, tenant leases, any guaranties thereof and any other occupancy agreements, and all amendments and modifications thereof (collectively, the "LEASES") affecting the Property, and of all contracts pertaining to the Permitted Exceptions. As used hereinoperation of the Property, including all management, leasing, service and maintenance agreements listed on EXHIBIT G, and equipment leases listed on EXHIBIT G (collectively, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end "SERVICE CONTRACTS").
(C) The physical condition of the Inspection Period Property.
(D) The zoning, land use, building, environmental and other statutes, rules, or regulations applicable to the Title Insurer has agreed Property.
(E) Operating statements and financial books and records pertaining to issue in the Title Commitment by the end operation of the Inspection Period. Property for each of the three (3) most recent years during which the Property has been owned by Seller or and for the Management Company current year (to the extent permitted by the Title Insurer) shall execute available), current rent roll, schedule of accounts receivable, tenant correspondence files, current real estate tax bills, any warranties, licenses, permits, certificates of occupancy and plans and specifications either in Seller's possession or within Seller's control at the Closing an affidavit Property, a list of Tangible Personal Property in such form as the Title Insurer Seller shall reasonably require have in its possession for the issuance of Property, other agreements or documents pertaining to the Title Policy andProperty which will be binding on Buyer after Closing, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after and the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateother items listed on EXHIBIT L attached hereto.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Buyer’s Conditions Precedent. In addition to the condition set forth in Section 9.2 hereof, Buyer’s obligation to purchase consummate the Partnership Interests transactions contemplated by this Agreement, including, without limitation, to accept the Subject Assets from Sellers and to pay the Purchase Price in accordance with Article III of this Agreement, is subject to fulfillment on or otherwise to perform any obligation provided in this Agreement shall be conditioned upon before the fulfillment Closing Date, of each the following conditions precedent:
(a) On or before all Governmental Approvals that are required to be obtained in connection with the expiration execution, delivery and performance of this Agreement and the Inspection Periodrelated documents have been obtained and are in effect at Closing, Buyer including, without limitation, that, if applicable, the waiting period under the HSR Act shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, expired or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition early termination shall be deemed to have been satisfied without further notice.granted;
(b) On or before all consents, waivers and approvals from all Governmental Authorities, third parties and such other entities, as necessary for the respective dates provided for herein, Seller consummation of the Transaction shall have, in a timely fashion, substantially performed each have been obtained and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Buyer shall have received copies thereof;
(c) The Title Insurer Sellers shall deliver have performed and complied in all respects with all obligations and agreements required in this Agreement to be performed or complied with by it prior to the Closing Date, including, without limitation, the transfer, conveyance, assignment and delivery to Buyer at of the Subject Assets free and clear of all Liens (other than Permitted Exceptions);
(d) Sellers’ representations and warranties in Article VI of this Agreement that are qualified as to materiality or by the term “Material Adverse Effect” shall be true and correct in all respects as of the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership and any such representations and warranties that are not so qualified shall be true and correct in all material respects as of the Real Property Closing as contemplated though made at and as of the Closing (or if made as of a specified date, only as of such date);
(e) Sellers have completed all deliveries they are required to make under Section 2.01 4.1;
(f) there shall not have occurred since the date hereof and be continuing as of the Closing Date any Material Adverse Effect;
(g) there shall not be in accordance with effect any Order by a Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting the Commitment, as it may have been modified as consummation of the transactions contemplated by this Agreement hereby;
(h) the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to Scheduling Order shall be a Final Order; and
(i) taxes Sellers have complied in all material respects with their obligations under paragraphs (except for taxes which are not yet due and payable which are apportioned hereunder), a) through (iij) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part Section 9.1 of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datethis Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cal Dive International Inc)
Buyer’s Conditions Precedent. The following shall be conditions precedent to Buyer’s obligation to close, in addition to all other conditions precedent set forth in this Agreement.
i. The City Council of the City of Anaheim, acting as the legislative body of Buyer, shall have approved this Agreement and authorized its designative representative to execute of behalf of Buyer all documents necessary to Close.
ii. Seller shall have timely delivered to Escrow Agent all of the items to be delivered by Seller pursuant to Paragraph 6.A hereof. Seller shall have timely delivered to Buyer all of the items to be delivered by Seller pursuant to Paragraph 6.B hereof.
iii. As of the Closing, the Americana Hotel shall be vacant without any occupants (which Buyer may verify by on-site physical inspection of the hotel) and the Seller shall have terminated (and provide proof of such termination acceptable to Buyer), any Contracts involving the use and management of the Americana Hotel.
iv. As of the Closing, all Tenants remaining in possession shall be subject to a written lease, either by way of written Leases assumed by Buyer as provided herein or such other written lease between the applicable Tenant and Buyer (as landlord therein), which lease shall be in a form approved by Buyer and which shall become effective as of the Closing.
v. If, in the course of performing the Buyer’s Due Diligence contamination was discovered, Buyer has determined that the cost of remediation is reasonable and Buyer and Seller have agreed on an adjustment of the purchase price mutually acceptable to the Partnership Interests parties, or otherwise alternatively, Seller has assumed financial responsibility for the RAW in a manner acceptable to perform any obligation Buyer as provided in Paragraph 4.D.
vi. As of the Closing, Seller shall have timely performed all of the material obligations required by the terms of this Agreement to be performed by Seller.
vii. Title Company is irrevocably committed to issue the Title Policy.
viii. All representations and warranties made by Seller to Buyer in this Agreement shall be conditioned upon the fulfillment true and correct as of the following conditions precedent:Closing.
ix. The Real Property (aor portion thereof) On or before the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to not have been satisfied without further notice.
(b) On damaged or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each destroyed by casualty or otherwise and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership no portion of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may shall have been modified as contemplated by condemned or subject to any pending or threatened condemnation proceedings. Unless all of Buyer’s conditions precedent contained in this Agreement (are satisfied within the “Title Policy”)time period specified, with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted)or if no time period is specified, with respect prior to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered or at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment)Buyer, issued by the Title Insurer at its standard filed rateselection, as applicable as of may, either (a) extend the date and time of for Closing until such conditions are satisfied, but no longer than ten (10) days beyond the issuance of the Title Policyoriginal Closing date, in the amount of the Purchase Priceor (b) terminate this Agreement, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.or
Appears in 1 contract
Samples: Agreement for Sale of Property
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:
(a) On or before the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.shall
Appears in 1 contract
Samples: Purchase and Sale Agreement (Equity Resource Group Inc Et Al)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in Seller agrees that this Agreement shall be conditioned upon Buyer's satisfaction, in its sole and absolute judgment, that the fulfillment following contingencies with respect to the Property are met:
a) Not less than 85% of the following conditions precedent:
(a) On or before the expiration square footage of the Inspection PeriodProperty is useable for the proposed use without violation of governmental regulations regulating wetlands and without incurring significant land preparation charges exclusive only of grading and fill charges.
b) Buyer's inspection, testing, sampling and approval of the Property and its soil and such other attributes as may be deemed necessary by the Buyer shall have inspected in order to ascertain whether the Property is suitable for the construction of an office warehouse building and approveda parking lot (collectively, the "Proposed Use"). This Proposed Use contingency is satisfied if Buyer is able to construct an office/warehouse building of 75,000 square feet, together with a parking lot. Seller agrees to allow Buyer and its agents the right of any ingress or egress over and through the Property for the purpose of inspecting and testing the same and making other observations as Buyer deems reasonably necessary. Buyer agrees to indemnify and hold Seller harmless from all injury, death or property damage or claims of any kind whatsoever arising out of or in any way incidental to Buyer’s sole discretion's or Buyer's agent's presence on the Property for the purposes aforesaid.
c) The Property is or will be properly zoned for the Proposed Use and Buyer is able to obtain reasonable assurances that it can obtain a building permit for the Proposed Use.
d) All utilities, all aspects including but not limited to electricity, gas, water (fire and matters relating domestic), storm and sanitary sewer, are available to the site, through valid and adequate public or private easements for the proposed use; provided that in the case of private easements, they are appurtenant to the Property, or on the Property's side of any nature whatsoeverabutting streets of size and capacity sufficient to serve the Proposed Use.
e) That none of the encumbrances set forth on Exhibit B attached hereto (the "Permitted Encumbrances") interfere with Buyer's Proposed Use and that there are no land use restrictions, environmental requirements, or waived such approvalother requirements established by any entity or authority having legal jurisdiction there over which would prohibit Buyer's Proposed Use.
f) Buyer obtaining, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth as provided in Section 6.02 V(A) hereof, then such condition shall be deemed the hazardous waste report(s) for the Property from any environmental consultant organization selected by Buyer showing the absence of hazardous substances, pollutants and trash thereon and otherwise solely satisfactory to have been satisfied without further noticeBuyer and certified in favor of Buyer.
(bg) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each All of Seller's warranties herein contained are true and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable correct as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title Closing. The conditions precedent enumerated above shall be deemed not found to exist to the Property subject only reasonable satisfaction of Buyer, and this Agreement shall be deemed terminated unless Buyer gives written notice hereunder to Seller that Buyer affirmatively waives in writing these conditions precedent prior to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as date which is sixty (60) days after Buyer has requested received an original copy of this Purchase Agreement executed by Seller and Buyer ("Contingency Date"); provided, however, that the end Contingency Date shall be extended to Closing with respect to item f) above should the Buyer deem it necessary to have a Phase 2 environmental audit undertaken pursuant to Section V(a) hereof. Upon termination of the Inspection Period this Agreement as a result of Buyer's not waiving these conditions precedent, all parties hereto shall be released from all duties and the Title Insurer has agreed obligations to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateeach other contained herein.
Appears in 1 contract
Samples: Purchase Agreement (Research Inc)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to close escrow and complete the purchase of the Partnership Interests or otherwise to perform any obligation provided in Properties under this Agreement shall be conditioned upon is expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration Seller’s deposit with Escrow Agent, for delivery to Buyer at Closing, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On or before Seller’s delivery to Buyer of the respective dates estoppel certificates as provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Section 10 above;
(c) The Title Insurer shall deliver Seller’s representations and warranties being true and correct in all material respects, and Seller not being in breach or default of any obligation of Seller under this Agreement;
(d) Seller’s deposit with Escrow Agent of (i) Escrow Agent’s customary form of “Owner’s Affidavit” in form and substance reasonably acceptable to Buyer at Seller and Escrow Agent and sufficient to allow the Closing at Buyer’s sole expense an endorsement Escrow Agent to delete the so-called standard exceptions in the Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof (other than any such exception for survey matters) and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanicsuch additional affidavits, undertakings or other documents as may be reasonably required by Escrow Agent (and in form and substance reasonably acceptable to Seller and Escrow Agent) to allow for the deletion of any mechanics’ lien exceptions and other standard exceptions from the Owner’s liens, Policy;
(iiie) survey issues (which shall be replaced by a “reading” of Escrow Agent’s irrevocable commitment to issue the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, Owner’s Policy in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to such exceptions as have been approved, or are deemed to have been approved, by Buyer in accordance with this Agreement, and further provided that if deletion of any general exception for survey matters (or issuance of extended coverage with respect to survey matters) requires a Survey, Buyer will furnish the Permitted Exceptions. As used hereinsame to the Escrow Agent;
(f) Seller’s deposit with Escrow Agent of a letter from Seller to the Tenants, complying with the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end notice requirements of the Inspection Period respective Lease and the Title Insurer has agreed in form reasonably satisfactory to issue in the Title Commitment by the end Buyer, directing that future rent under such Lease be paid to Buyer;
(g) Seller’s delivery to Buyer at Closing of the Inspection Period. Seller or the Management Company a fully-executed original of each Lease (to the extent permitted in the possession of Seller or Seller’s agents) and, if Seller is not the original landlord under a Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under such Lease;
(h) Seller’s delivery to Buyer of all Warranties, Permits, and Property Documents, if any, in the possession of Seller or Seller’s agents (including without limitation any warranties covering the roof or any other part of the Buildings); any Intangibles capable of physical delivery; and any non-proprietary leasing and property manuals, files and records applicable to or useful in connection with the continued operation, leasing and maintenance of such Property;
(i) Seller’s delivery to Buyer of written consent from LG&E authorizing the building encroachment on the easements recorded in Book 7758, Page 521 and Book 7597, Page 904; and
(j) Seller’s delivery to Buyer of the estoppel certificates relating to the documents recorded in Deed Book 7435, Page 909, Deed Book 6916, Page 110, and Deed Book 10146, Page 395 in the Jefferson County, Kentucky records as set forth in Seller’s Title Response dated October 16, 2014 relating to Xxxxxxxxxxxx Plaza. Master Purchase and Sale Agreement MT – Louisville, Kentucky; Rockford, Illinois Seller will use commercially reasonable efforts to satisfy those conditions that require Seller’s action or are otherwise within Seller’s control. If the foregoing conditions have not been satisfied by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the scheduled Closing Date, then Buyer will have the right, at Buyer’s sole option and without limiting any other right or remedy of Buyer, to extend Closing for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions, by giving written notice of such extension to Seller and Escrow Agent.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Cole Credit Property Trust V, Inc.)
Buyer’s Conditions Precedent. Buyer’s 's obligation to purchase and accept delivery of and purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement Aircraft from Seller shall be conditioned upon the fulfillment subject to satisfaction of each of the following conditions precedentat such time as is indicated below:
(a) On or before the expiration of the Inspection Period, Buyer shall have inspected and approved, in receipt by Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration Delivery of the Inspection Periodfollowing:
(i) executed counterparts of this Agreement duly executed by Seller (for Seller compliance) and the Bills of Sale have been prepositioned with FAA Counsel, as signed by Seller;
(ii) written disclaimer of interest and release of lien in and to the Aircraft by Nordea upon Delivery, in such form as Buyer shall reasonably request (which originally signed document shall have been prepositioned with FAA Counsel prior to Delivery for filing with the FAA immediately after Delivery (for Seller compliance);
(iii) written evidence of the immediate termination of the lease between Finnair and Seller upon Delivery (which originally signed document shall have been prepositioned with FAA Counsel prior to Delivery for filing with the FAA immediately after Delivery (for Seller compliance);
(iv) written evidence of the deregistration of the Aircraft from Finland, which evidence shall also have been provided to the FAA by the Finnish Aviation Authorities (for Seller compliance);
(v) Seller and Buyer shall have registered Buyer's rights (including its international interests) under this Agreement with the International Registry;
(vi) the originally signed letter from Pacific Coast Group, Inc. in the form of Exhibit G hereto (for Seller compliance);
(vii) a letter signed by Finnair with respect to the absence of Eurocontrol charges outstanding with respect to the Aircraft and all aircraft in Finnair's fleet (for Seller compliance);
(viii) from FAA Counsel, written notice evidence that there are no liens, claims or encumbrances recorded against the Aircraft or any part thereof at either of the failure FAA or the International Registry (other than, in the case of the condition set forth in Section 6.02 hereofInternational Registry, then such condition shall be deemed to registration of the sale under this Agreement as Seller and Buyer have been satisfied without further noticejointly made).
(b) On or before the respective dates provided for herein, Seller Buyer shall havebe satisfied prior to Technical Acceptance, in a timely fashionits sole discretion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.with the condition of the Aircraft; and
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance No Total Loss or other damage with respect to the Partnership’s ownership Aircraft shall have occurred after Technical Acceptance and prior to Buyer's delivery to Seller of the Real Property as contemplated under Delivery Receipt. The conditions in this Section 2.01 hereof 4.3 are for the sole benefit of Buyer and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policywaived, in the amount of the Purchase Pricewhole or in part, containing only by Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 1 contract
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligations to perform under this Agreement and to close escrow with respect to any Property are expressly subject to satisfaction of the following conditions on or before the XXX (or such earlier date that is specified below):
(a) the delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the executed original Transfer Documents for such Property;
(b) the issuance of a pro-forma Owner’s Policy (or a written commitment therefore) for such Property subject only to those matters approved or deemed approved by Buyer pursuant to this Agreement;
(c) the delivery by Seller to Buyer at XXX of all security deposits and pre-paid/abated rents under the Lease for such Property, if any, in the form of a credit in favor of Buyer against the Purchase Price allocated to such Property;
(d) the deposit by Seller with Buyer not later than five (5) days prior to XXX of (i) as to the Lease for such Property, an original estoppel certificate (“Tenant Estoppel”), in a form reasonably acceptable to Buyer (or in the form required by the Lease, if so required in the Lease) (v) dated not more than thirty (30) days prior to XXX, (w) executed by Tenant and naming Buyer (or its designee) and any lender of which Buyer provides written notice to Seller pursuant to the notice provisions hereof (“Lender”) as addressees, (x) verifying the basic facts of such Lease (term, rental, expiration date, options, if any exist), and (y) confirming that, to Tenant’s actual knowledge, there are no defaults by the landlord under such Lease, and (ii) as to the Lease for such Property, a subordination, non-disturbance and attornment agreement executed by Tenant, in form and substance reasonably acceptable to Tenant, for the benefit of Lender (“SNDA”); provided, however, that Seller’s failure to obtain and provide to Buyer a Tenant Estoppel or SNDA despite its good faith and diligent efforts with respect to any Property shall not be an event of default hereunder, but merely a condition to Buyer’s obligation to purchase close;
(e) intentionally deleted;
(f) the Partnership Interests deposit with Escrow Agent prior to XXX of an executed final lien waiver by the general contractor, an executed affidavit of Seller or, if Seller is a single-asset entity, of Seller’s principals or otherwise parent entity, and such other documentation as may be reasonably required by Escrow Agent to perform allow for the deletion of the mechanics’ lien exception from the Owner’s Policy for such Property;
(g) the delivery by Seller to Buyer of the final Certificate of Occupancy for such Property;
(h) intentionally deleted;
(i) the deposit with Escrow Agent prior to XXX of a letter from Seller to Tenant requesting that future rent under the Lease for such Property be paid to Buyer;
(j) to the extent such Property is subject to zoning regulations, the receipt by Buyer of evidence reasonably satisfactory to Title Agent to issue an appropriate Zoning Endorsement to the Owner’s Policy for such Property at Buyer’s expense if requested by Buyer.
(k) there has been no “Insolvency Event” with respect to any obligation provided Tenant. As used in this Agreement subsection (j), an “Insolvency Event” shall be conditioned upon have occurred if any Tenant becomes insolvent within the fulfillment meaning of the following conditions precedent:United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the “Bankruptcy Code”), files or notifies Seller or any affiliate of Seller that it intends to file a petition under the Bankruptcy Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, hereinafter, an “Action”), becomes the subject of either a petition under the Bankruptcy Code or an Action, or is not generally paying its debts as the same become due;
(al) On intentionally deleted;
(m) Tenant has accepted possession of such Property and is contractually obligated to pay, and has commenced payment of, full rent pursuant to the Lease Commencement Date Agreement / Lease Modification Agreement attached as “Exhibit E” to the Lease for such Property, a copy of which to be delivered concurrently with its delivery to Tenant;
(n) delivery at XXX to Buyer or before the expiration Escrow Agent of the Inspection Periodoriginal, fully-executed Lease with respect to such Property, and a copy of all guaranties thereof, all exhibits, amendments and other modifications thereto, and, if Seller is not the original landlord under any Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under such Lease;
(o) delivery at XXX to Buyer or Escrow Agent of originals of the Contracts, Warranties and Permits for such Property including, without limitation, any warranties covering the roof or any other part of the Improvements and any warranties required under the lease (including the 3-year latent defect warranty), and any correspondence with respect thereto, together with such non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance with respect to such Property; and
(p) Seller’s completion of unperformed or “punchlist” construction items, if any, identified in Tenant Estoppels or Buyer’s Post-Construction Reports or any punchlist items identified by Tenant. If the foregoing conditions have not been satisfied as to any Property by the specified date or XXX as the case may be, then Buyer shall have inspected and approvedthe right, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement option, by giving written notice to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof Seller and in accordance with the CommitmentEscrow Agent, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes cancel this Agreement as it relates to such Property, whereupon the aggregate Purchase Price shall be reduced by the Purchase Price corresponding to each such Property, the portion of the Xxxxxxx Money Deposit corresponding to such Removed Property (except for taxes which are not yet due i.e., $20,000.00) plus all interest earned thereon shall be returned immediately to Buyer, and payable which are apportioned hereunder)this Agreement shall continue in full force and effect as to all remaining Properties, (ii) mechanicextend such specified date or XXX, as applicable, for such Property, at Buyer’s liensoption, for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions (and subject to Buyer’s ongoing right to exercise its rights under either subsection (i) or (iii) survey issues hereof at any time thereafter until the satisfaction of such conditions) but in no event shall such extension exceed fifteen (which 15) days without Seller’s consent, or (iii) terminate this Agreement in its entirety. In the event this Agreement is terminated in its entirety, the Xxxxxxx Money Deposit shall be replaced paid immediately by a “reading” Escrow Agent to Buyer and, except as otherwise provided in this Agreement, neither of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which Parties shall be replaced by a reference to “tenants have any further liability or obligation under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datethis Agreement.
Appears in 1 contract
Samples: Master Purchase Agreement (Cole Credit Property Trust V, Inc.)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise to perform If any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedentprecedent to Buyer’s obligations under this Contract is not satisfied, then Buyer may, at its option, waive such condition and close this transaction, or, as Buyer’s sole and exclusive remedy, terminate this Contract, in which event the Exxxxxx Money shall be returned to Buyer, and neither party shall have any further rights or obligations hereunder except other than as set forth herein with respect to rights or obligations which survive termination:
(a) On or before the expiration Each of the Inspection Period, Buyer representations and warranties made by Seller in Section 12 shall have inspected be true and approved, correct in Buyer’s sole discretion, all aspects material respects when made and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration as of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further noticeClosing Date.
(b) On Seller shall have performed or complied in all material respects with each obligation and covenant required by applicable laws and by this Contract to be performed or complied with by Seller on or before the respective dates provided for herein, Closing.
(c) Seller shall have, have performed or complied in a timely fashion, substantially performed all material respects with each material obligation and every covenant, undertaking and agreement covenant required to be performed by Seller pursuant to this Agreementthe Tenant Leases and the Service Contracts; provided that if Seller is in default of any such obligation, Seller shall be afforded an opportunity to either cure such default or to escrow at Closing an amount reasonably necessary to effect such cure.
(cd) The Title Insurer to the Property and the other assets to be transferred hereunder shall deliver be delivered to Buyer in the manner required under Section 6.
(e) From the expiration of the Feasibility Period to the Closing Date, there has been no unlawful introduction of Hazardous Materials that would materially and adversely affect the environmental condition of the Property from that which existed at the Closing at expiration of the Feasibility Period. If any of the above described conditions precedent to Buyer’s sole expense an endorsement obligations hereunder is not satisfied, Buyer may, at its option, (A) waive such condition and close this transaction with no reduction in the Sales Price, or (B) terminate this Contract by notice in writing to Owner’s Policy of Title Insurance Seller in which event the Exxxxxx Money and any Extension Fee shall be returned to Buyer, and neither party shall have any further rights or obligations hereunder except other than as set forth herein with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes rights or obligations which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datesurvive termination.
Appears in 1 contract
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation obligations to close escrow and complete the purchase of the Partnership Interests or otherwise to perform any obligation provided in Property under this Agreement shall be conditioned upon are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration Seller’s deposit with Escrow Agent, for delivery to Buyer at Closing, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On or before Seller’s delivery to Buyer of the respective dates estoppel certificate as provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Section 10 above;
(c) The Title Insurer shall deliver Seller’s deposit with Escrow Agent of (i) Escrow Agent’s customary form of “Owner’s Affidavit”, as applicable in the State of Alabama and (ii) such additional affidavits, undertakings or other documents as may be reasonably required by Escrow Agent to Buyer at allow for the Closing at Buyerdeletion of any mechanics’ lien exceptions and other standard exceptions from the Owner’s sole expense an endorsement Policy;
(d) Escrow Agent’s irrevocable commitment to issue the Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring Price in the Partnership as owner of fee simple title form approved by Buyer pursuant to the Property subject only terms of Section 6;
(e) Seller’s deposit with Escrow Agent of a letter from Seller to Tenant, complying with the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end notice requirements of the Inspection Period Lease and in form reasonably satisfactory to Buyer, directing that future rent under the Title Insurer has agreed Lease be paid to issue in the Title Commitment by the end Buyer;
(f) Seller’s delivery to Buyer at Closing of the Inspection Period. Seller or the Management Company original, fully-executed Lease (to the extent permitted in the possession of Seller or Seller’s agents) and, if Seller is not the original landlord under the Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under the Lease; and
(g) Seller’s delivery to Buyer of all Warranties, Permits, and Property Documents, if any, in the possession of Seller or Seller’s agents capable of physical delivery (including without limitation any warranties covering the roof or any other part of the Building); any Intangibles capable of physical delivery; and any non-proprietary leasing and property manuals, files and records applicable to or useful in connection with the continued operation, leasing and maintenance of the Property. If the foregoing conditions have not been satisfied by the Title Insurerscheduled Closing Date, then Buyer will have the right, at Buyer’s sole option and without limiting any other right or remedy of Buyer to (i) terminate this agreement in which case the Deposit shall execute at be returned to Buyer or (ii) waive such condition and proceed to Closing. Notwithstanding the foregoing, the failure of the Seller to deliver the estoppel certificate as required under Section10 shall not constitute a default under this Agreement but Buyer shall have the right to (i) terminate this agreement in which case the Deposit shall be returned to Buyer (ii) extend the Closing an affidavit in up to fifteen (15) days or (iii) waive such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment condition and irrevocably commits in writing proceed to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.Closing
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Buyer’s Conditions Precedent. Buyer’s The obligation of the Buyer to purchase consummate the Partnership Interests or otherwise to perform any obligation provided in transactions contemplated by this Agreement shall be conditioned upon with respect to any Seller is subject to the fulfillment satisfaction by the Sellers or waiver in writing by the Buyer (subject to applicable Laws) on or prior to the Closing Date of each of the following conditions precedent:
6.1 No preliminary or permanent injunction or other Order will have been issued (aand remain in force) On or before the expiration by any Governmental Authority having appropriate jurisdiction preventing consummation of the Inspection Periodtransactions contemplated by this Agreement;
6.2 No Proceeding will have been commenced against any Seller, the Buyer shall have inspected and approvedor any of their respective Affiliates, in Buyer’s sole discretionassociates, all aspects and matters relating officers or directors by any Third Party seeking to the Propertyenjoin, of any nature whatsoeverprevent, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to challenge the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as transactions contemplated by this Agreement or seeking material damages arising from the transactions contemplated by this Agreement;
6.3 All representations and warranties of such Seller contained herein (a) that are qualified by the term “Title Policymaterial”, or contain terms such as “material adverse change,” “Material Adverse Effect” or other terms, or Dollar amounts of similar import or effect (whether or not capitalized), with extended coverage shall be true and correct as of the Closing Date as though such representations and warranties were made at such time (i.e. with General Standard Exceptions 1 through 5 deletedexcept to the extent that a representation specifically relates to an earlier date, in which case as of such earlier date), and (b) that are not so qualified shall be true and correct in all material respects as of the Closing Date as though such representations and warranties were made at such time (except to the extent that a representation specifically relates to an earlier date, in which case as of such earlier date);
6.4 Such Seller will have performed or satisfied in all material respects on or prior to the Closing Date all obligations, covenants and agreements contained in this Agreement to be performed or complied with respect by such Seller on or prior to (i) taxes the Closing Date;
6.5 Each Seller shall have received all consents, authorizations, waivers, and approvals required to be obtained prior to the Closing Date from any court or other Governmental Authority under any applicable Law concerning the transactions contemplated herein (except for taxes Customary Post-Closing Consents); and
6.6 Each Seller shall have delivered to Buyer releases of all Liens (if any) encumbering the Properties, excluding Permitted Encumbrances and Liens for which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference adjustment to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DatePrice is made under Section 2.1.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Energy & Exploration Partners, Inc.)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise 's obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On the delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the executed original Transfer Documents;
(b) the issuance of the Owner's Policies (or before a written commitment therefor) subject only to those matters approved or deemed approved by Buyer pursuant to this Agreement;
(c) the delivery by Seller to Buyer at XXX of all security deposits and pre-paid/abated rents under each of the Leases, if any, in the form of a credit in favor of Buyer against the Additional Funds;
(d) the deposit by Seller with Buyer prior to expiration of the Study Period of (i) an executed original estoppel certificate naming Buyer (or its designee) and Wachovia Bank, National Association, as addressees, which certificate must be reasonably acceptable to Buyer, in Tenant's standard form, without any punch list items remaining, and (ii) a subordination, non-disturbance and attornment agreement, in form and substance reasonably acceptable to Tenant, for the benefit of Wachovia Bank, National Association, both executed by Tenant with respect to each of the Leases;
(e) the deposit with Escrow Agent and Buyer prior to the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, Study Period of an executed waiver by Tenant of any nature whatsoeverright of first refusal under each of the Leases;
(f) the deposit with Escrow Agent of an executed final lien waiver by the general contractor, or waived an executed affidavit of Seller and such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein other documentation as may be reasonably required by Escrow Agent to allow for the contrarydeletion of the mechanics' lien exception from each of the Owner's Policies;
(g) the delivery by Seller to Buyer of the Certificate of Occupancy for each of the Premises;
(h) the delivery by Seller to Buyer of the leasehold title insurance policy provided to Tenant for each of the Premises, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants any is required under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.Leases;
Appears in 1 contract
Samples: Master Purchase Agreement (Cole Credit Property Trust II Inc)
Buyer’s Conditions Precedent. Buyer’s obligation The obligations of Buyer to purchase consummate the Partnership Interests or otherwise to perform any obligation provided in transactions contemplated by this Agreement shall be conditioned upon are subject to the fulfillment satisfaction or waiver by Buyer of each of the following conditions precedentconditions:
(a) On or before the expiration of the Inspection Period, Buyer 6.2.1 Seller shall have inspected performed and approved, in Buyer’s sole discretion, complied with all aspects and matters relating to the Property, terms of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement this Agreement required to be performed or complied with by Seller pursuant prior to Closing.
6.2.2 No action or proceeding by or before any governmental authority shall have been instituted or threatened (and not subsequently dismissed, settled, or otherwise terminated) which might restrain, prohibit or invalidate any of the transactions contemplated by this Agreement.
(c) 6.2.3 The Title Insurer representatives and warranties of Seller contained in this Agreement shall, if qualified by materiality standards, be true, and if not so qualified, shall deliver to Buyer be true in all material respects, on the date of this Agreement and also at and as of the Closing as if such representations and warranties were made at Buyer’s sole expense an endorsement to Owner’s Policy and as of Title Insurance the Closing.
6.2.4 All material federal, state and local government consents or approvals required for the consummation of the transactions contemplated hereby (other than those routine consents and approvals that are customarily obtained after the consummation of transactions of the type contemplated hereby) shall have been obtained.
6.2.5 Since the Effective Date of Sale, no events shall have occurred that, individually or in the aggregate, may reasonably be expected to:
(i) materially and adversely affect the value of all or any material portion of the Assets, except affecting the value of oil and gas properties generally, or
(ii) result in substantial liabilities with respect to the Partnership’s ownership of the Real Property as contemplated which Seller is entitled to indemnification by Buyer under Section 2.01 hereof and this Agreement, or
(iii) result in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), substantial liabilities with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder)Buyer is entitled to indemnification by Seller under this Agreement.
6.2.6 This transaction is subject to Buyer obtaining approval of its Board of Directors. Buyer will use its best efforts to obtain such approval, (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey promptly sought and an exception only for “shortages in area”), (iv) leases and parties in possession (which Seller shall be replaced by a reference timely notified. However should Buyer fail to “tenants under the leases described on the Rent Roll delivered at the Closingobtain such approval, deposit shall be refunded to Buyer as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, provided in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date2.1.
Appears in 1 contract
Buyer’s Conditions Precedent. Buyer’s The obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:
(a) On or before Buyer to consummate the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as transactions contemplated by this Agreement is subject to the satisfaction or waiver (subject to applicable law) at or prior to the “Title Policy”)Closing Date of each of the following conditions: (a) no preliminary or permanent injunction or other order will have been issued by any court of competent jurisdiction or any regulatory body preventing consummation of the transactions contemplated by this Agreement; (b) no action will have been commenced or threatened against the Seller, the Corporation, any Subsidiary, the Buyer or any of their respective affiliates, associates, officers or directors seeking damages arising from, to prevent or challenge the transactions contemplated by this Agreement; (c) all representations and warranties of the Seller contained herein will be true and correct in all material respects on and as of the Closing Date; (d) the Seller will have performed or satisfied on and as of the Closing Date, all obligations, covenants, agreements and conditions contained in this Agreement to be performed or complied with extended coverage by the Seller including the sale of all of the Shares; (i.e. e) all actions, proceedings, instruments and documents required to carry out the transactions contemplated hereby will have been satisfactory to the Buyer and the Buyer's counsel, and the Seller will have delivered such additional certificates and other documents as the Buyer reasonably requests including, without limitation, such certificates of the Seller dated the Closing Date evidencing compliance with General Standard Exceptions 1 through 5 deleted), with respect the conditions set forth in this paragraph 6; (f) there will have been no material adverse change in the business or condition of the Corporation; (g) the Buyer will have obtained any necessary approvals or clearance for this transaction required by the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976; (h) the Buyer will have completed the Buyer's due diligence pursuant to paragraph 5.2 of this Agreement and not terminated this Agreement; and (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” the Buyer will have acquired all of the Survey and RAM Common Stock owned by Willxxx Xxxaxx Xxxxx xxx/or an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateRAM Common Stock.
Appears in 1 contract
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On the issuance of the Owner’s Policies (or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement written commitment therefor) subject only to be performed those matters approved or deemed approved by Seller Buyer pursuant to this Agreement.;
(c) The Title Insurer shall deliver the delivery by Seller to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy XXX of Title Insurance with respect to the Partnership’s ownership all security deposits and pre-paid/abated rents under each of the Real Property as contemplated under Section 2.01 hereof and Leases, if any, in accordance the form of a credit in favor of Buyer against the Purchase Price;
(d) the deposit by Seller with the Commitment, as it may have been modified as contemplated by this Agreement Buyer not later than two (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect 2) business days prior to XXX of (i) taxes an original estoppel certificate as to each of the Leases, in a form reasonably acceptable to Buyer and dated not more than thirty (except for taxes 30) days prior to XXX, executed by Tenant and naming Buyer (or its designee) and any lender of which Buyer provides written notice to Seller pursuant to the notice provisions hereof (“Lender”) as addressees and (x) verifying the basic facts of each Lease (term, rental, expiration date, options, if any exist), (y) confirming that there are not yet due no defaults by the landlord under each Lease, no unperformed or “punchlist” construction items and payable which are apportioned hereunderno unpaid tenant improvement allowances or leasing commissions, and (z) if Tenant’s obligations under any Lease have been guaranteed by another person or entity, also cover such guaranty and also be signed by such guarantor(s), (ii) mechanic’s liensa subordination, non-disturbance and attornment agreement as to each Lease executed by Tenant, in form and substance reasonably acceptable to Tenant, for the benefit of Lender, and (iii) survey issues (which shall be replaced an original estoppel certificate executed by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and all other parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted reasonably practicable) to any applicable reciprocal easement agreement or declaration of covenants, conditions and/or restrictions affecting any Property (the “REA’s”) addressed or certified to Buyer and Lender stating that such instrument is in full force and effect and is not modified (except as disclosed in such estoppel certificate) and, to the best knowledge of the party giving the estoppel, the other party or parties thereto is/are not in default under the applicable instrument and all amounts, if any, owing under the applicable agreement have been paid in full;
(e) reserved;
(f) the deposit with Escrow Agent of an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics’ lien exception from each of the Owner’s Policies;
(g) the delivery by Seller to Buyer of the final Certificate of Occupancy for each Property;
(h) the deposit with Escrow Agent of a letter from Seller to Tenant requesting that future rent under each of the Leases be paid to Buyer;
(i) to the extent any Property is subject to zoning regulations, the receipt by Buyer of evidence reasonably satisfactory to Buyer that each such Property is properly zoned for its intended use;
(j) there has been no “Insolvency Event” with respect to any Tenant. As used in this subsection (j), an “Insolvency Event” shall have occurred if any Tenant becomes insolvent within the meaning of the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the “Bankruptcy Code”), files or notifies Seller or any affiliate of Seller that it intends to file a petition under the Bankruptcy Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, hereinafter, an “Action”), becomes the subject of either a petition under the Bankruptcy Code or an Action, or is not generally paying its debts as the same become due;
(k) reserved;
(l) delivery to Buyer of the original, fully-executed Lease with respect to each Property, to the extent available (and, if not available, a copy thereof), and a copy of all guaranties thereof, all exhibits, amendments and other modifications thereto, and, if Seller is not the original landlord under any Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under such Lease; and
(m) delivery to Buyer of originals of the Contracts, Warranties and Permits, if any, in the possession of Seller or Seller’s agents, including, without limitation, any warranties covering the roof or any other part of the Improvements, and any correspondence with respect thereto, together with such non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance with respect to each Property. If the foregoing conditions have not been satisfied as to any Property by the Title Insurer) shall execute at the Closing an affidavit in such form specified date or XXX as the Title Insurer case may be, then Buyer shall reasonably require have the right, at Buyer’s sole option, by giving written notice to Seller and Escrow Agent, to (i) cancel this Agreement as it relates to such Property, whereupon the Purchase Price shall be reduced by the amount corresponding to each such Property as set forth on Exhibit A attached hereto and this Agreement shall continue in full force and effect as to all remaining Properties, (ii) extend such specified date or XXX, as applicable, for such Property or all Properties, at Buyer’s option, for such amount of time as Buyer and Seller mutually agree to allow Seller to satisfy such conditions, or (iii) terminate this Agreement in its entirety. In the issuance event this Agreement is terminated in its entirety, the Xxxxxxx Money Deposit shall be paid immediately by Escrow Agent to Buyer and, except as otherwise provided in this Agreement, neither of the Title Policy and, provided Seller Parties shall not incur have any additional cost further liability or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateobligation under this Agreement.
Appears in 1 contract
Samples: Master Purchase Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.)
Buyer’s Conditions Precedent. The following shall be conditions precedent to Buyer’s obligation to purchase close, in addition to all other conditions precedent set forth in this Agreement.
(i) As of the Partnership Interests or otherwise Closing, Seller shall have timely performed all of the material obligations required by the terms of this Agreement to perform any obligation provided be performed by Seller.
(ii) All representations and warranties made by Seller to Buyer in this Agreement shall be conditioned upon the fulfillment true and correct as of the following conditions precedent:Closing.
(aiii) On The Property (or before the expiration portion thereof) shall not have been damaged or destroyed by casualty or otherwise and no portion of the Inspection PeriodProperty shall have been condemned or subject to any pending or threatened condemnation proceedings.
(iv) Seller has demonstrated to Buyer’s satisfaction that the Property is within the City of Anaheim’s Industrial Zoning classification.
(v) Buyer has satisfied the LLA Contingency and the time for a third party to challenge the Lot Line Adjustment has expired. Unless all of Buyer’s conditions precedent contained in this Agreement are satisfied within the time period specified, or if no time period is specified, prior to or at Closing, Buyer, at its election, may, either (i) extend the date for Closing until such conditions are satisfied, but no longer than ten (10) days beyond the original Closing date, or (ii) terminate this Agreement and have the Initial Deposit and any Extension Deposit and any interest earned thereon immediately refunded to Buyer without any further authorizations or approvals of any kind from Seller or any other party, or (iii) waive in writing the satisfaction of any such conditions, in which event this Agreement shall be read as if such conditions no longer existed. Notwithstanding the foregoing, if the failure of a Buyer’s condition to Closing is caused by a default by Seller, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating the right to exercise the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition remedies set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 1 contract
Samples: Agreement for Sale of Real Property
Buyer’s Conditions Precedent. Subject to the provisions of Section 9.3 hereof, Seller has provided and/or shall provide Buyer and its consultants and other agents and representatives with access to the Property to perform Buyer’s obligation to purchase inspections and review and determine the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment present condition of the following conditions precedent:
Property. Seller has delivered or made available to Buyer, or shall within the Delivery Period (aas defined below) On deliver or before make available to Buyer, copies of all Due Diligence Materials and Buyer’s 3-14 Audit Documents (as such terms are defined in Section 2.2 below) in Seller’s possession or control, except as otherwise specifically provided herein. Notwithstanding anything to the expiration contrary contained herein, the Due Diligence Materials shall expressly exclude (i) those portions of the Inspection PeriodDue Diligence Materials that would disclose Seller’s cost of acquisition of the Real Property, Buyer shall have inspected or cost of construction of the Improvements and approvedrelated soft costs, or any estimates of costs to repair, replace, remediate or maintain the Real Property, (ii) any reports, presentations, summaries and the like prepared for any of Seller’s boards, committees, partners or investors in Buyer’s sole discretionconnection with its consideration of the acquisition of the Real Property, all aspects and matters relating to construction of the Improvements or sale of the Property, (iii) any proposals, letters of any nature whatsoeverintent, draft contracts or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on like prepared by or before the expiration for other prospective purchasers of the Inspection PeriodProperty or any part thereof, written notice (iv) Seller’s internal memoranda, attorney-client privileged materials, appraisals, structural or physical inspection reports (other than existing environmental reports for the Property (but excluding any reports covering the Property as a part of the failure an investigation of the condition set forth a larger area of real property) in Section 6.02 hereofSeller’s possession or control, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer which it shall deliver to Buyer at Buyer), and (v) any information which is the Closing at Buyer’s sole expense an endorsement to Owner’s Policy subject of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof a confidentiality agreement between Seller and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement a third party (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to items described in clauses (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title being collectively referred to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements“Confidential Information”). The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Buyer’s Conditions Precedent. The obligations of Buyer at the Closing are subject, at the option of Buyer’s obligation , to purchase the Partnership Interests satisfaction or otherwise waiver at or prior to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment Closing of the following conditions precedent:
(a) On Except for representations qualified by “material” or before the expiration “materiality” in which case such representations must be true and accurate in all respects when made and at Closing when serving as a condition to Closing, all representations and warranties of Seller contained in this Agreement are true in all material respects at and as of the Inspection PeriodClosing in accordance with their terms as if such representations were remade at and as of the Closing, Buyer shall have inspected and approvedexcept for covenants, agreements and conditions qualified by “material” or “materiality” in Buyer’s sole discretionwhich case compliance must be performed and complied with in all respects by Seller prior to or at the Closing, Seller has performed and satisfied all aspects covenants and matters relating agreements required by this Agreement to be performed and satisfied by Seller at or prior to the Property, Closing in all material respects and Seller shall deliver a certificate to Buyer in the form of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to Exhibit K confirming the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.foregoing;
(b) On No order has been entered by any court or before governmental agency having jurisdiction over the respective dates provided for herein, Seller shall have, Parties or the subject matter of this Agreement that restrains or prohibits this Transaction and that remains in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.effect at the time of Closing;
(c) The aggregate of Purchase Price adjustments for Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof Defects, Environmental Defects, Excluded Assets, and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except any other adjustments for taxes which are defects does not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, exceed in the amount aggregate 10% of the Purchase Price;
(d) There has been no Material Adverse Effect;
(e) The Parties shall have agreed to the Preliminary Settlement Statement pursuant to Section 3.4(a);
(f) The Escrow Amount shall have been returned to Buyer concurrently with the Closing and pursuant to the Escrow Agreement; and
(g) All other actions, containing corporate or otherwise, to be taken by Seller in connection with the Transaction shall be reasonably satisfactory in form and substance to Buyer and Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datecounsel.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Magnum Hunter Resources Corp)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise 's obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On the delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the executed original Transfer Documents;
(b) the issuance of the Owner's Policy (or before a written commitment therefor) subject only to those matters approved or deemed approved by Buyer pursuant to this Agreement;
(c) the delivery by Seller to Buyer at XXX of all security deposits and pre-paid/abated rents under the Lease, if any, in the form of a credit in favor of Buyer against the Additional Funds;
(d) the deposit by Seller with Buyer not later than ten (10) business days prior to XXX of (i) an original estoppel certificate naming Buyer (or its designee) and Wachovia Bank, National Association as addressees, which certificate must be reasonably acceptable to Buyer, in Tenant's standard form, and (ii) a subordination, non-disturbance and attornment agreement, in form and substance reasonably acceptable to Tenant, for the benefit of Wachovia Bank, National Association, both executed by Tenant under the Lease;
(e) the deposit with Escrow Agent and Buyer prior to the expiration of the Inspection PeriodStudy Period of an executed waiver by Tenant of the right of first refusal under the Lease, Buyer which Seller shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating seek to obtain immediately after the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretionEffective Date; provided, that notwithstanding anything herein to the contraryherein, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition this Agreement shall be deemed terminated upon receipt of written notice and verifying documentation by Buyer from Seller that Tenant has exercised its right of first refusal under the Lease, in which event the Xxxxxxx Money Deposit plus interest shall be returned immediately to Buyer and, except as otherwise provided in this Agreement, neither of the Parties shall have been satisfied without any further notice.liability or obligation under this Agreement;
(bf) On or before the respective dates provided deposit with Escrow Agent of an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed the deletion of the mechanics' lien exception from the Owner's Policy;
(g) the delivery by Seller pursuant to this Agreement.Buyer of the final Certificate of Occupancy for the Improvements;
(ch) The Title Insurer shall deliver the deposit with Escrow Agent of a letter from Seller to Buyer at Tenant requesting that future rent under the Closing at Lease be paid to Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to ;
(i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” delivery of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements SEC Filing Information (as hereinafter defined), insuring ) and the Partnership SEC Filings Letter (as owner hereinafter defined) by Seller to Buyer not less than five (5) days prior to XXX; and
(j) delivery to Buyer of fee simple title to originals of the Property subject only to the Permitted Exceptions. As used hereinLease, the term “Buyer Endorsements” shall mean Contracts and Permits, if any, in the possession of Seller or Seller's agents, and any correspondence with respect thereto, together with such endorsements as Buyer has requested non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance of the Property. If the foregoing conditions have not been satisfied by the end specified date or XXX as the case may be, then Buyer shall have the right, at Buyer's sole option, by giving written notice to Seller and Escrow Agent, to cancel this Agreement, whereupon the Xxxxxxx Money Deposit plus interest shall be paid immediately by Escrow Agent to Buyer and, except as otherwise provided in this Agreement, neither of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller Parties shall have any further liability or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateobligation under this Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Cole Credit Property Trust II Inc)
Buyer’s Conditions Precedent. The following shall be conditions precedent to Buyer’s obligation to consummate the purchase and sale transaction contemplated herein (the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:“Buyer’s Conditions Precedent”):
(a) On or before the expiration All representations and warranties of Sellers in Section 4 shall be true and correct as of the Inspection PeriodClosing Date and all agreements, Buyer shall have inspected covenants and approved, in Buyer’s sole discretion, all aspects and matters relating obligations of Sellers under this Agreement to the Property, of any nature whatsoever, be performed or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, complied with on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition Closing Date shall be deemed to have been satisfied without further noticeperformed or complied with and Sellers shall have executed and delivered to Buyer a certificate to that effect in the form attached as Exhibit 16A hereto (“Sellers’ Certificate”).
(b) On No material breach or before the respective dates provided for herein, default by any Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement have occurred hereunder that has not been cured to be performed Buyer’s reasonable satisfaction. Buyer shall provide Sellers with written notice of any material breach or default by Seller pursuant to this AgreementSellers promptly upon Buyer’s discovering that such breach or default exists.
(c) The Title Insurer applicable waiting periods, if any, under the HSR Act shall deliver have expired or been terminated.
(d) The Nevada Gaming Authorities shall have determined that Buyer is a suitable purchaser of the Purchased Assets and the Casino Property and the Sports Bar Property and shall have granted to Buyer nonrestricted gaming licenses for the Casino Business and the Sports Bar Business effective as of the Closing Date. Approvals from all other applicable counties, cities and other municipalities having jurisdiction over the Casino Business, Casino Property, Sports Bar Business and Sports Bar Property shall have been obtained. No certificate of occupancy or any liquor or gaming license shall have been revoked or suspended by the responsible governmental agency.
(e) Sellers shall have executed and delivered to Buyer at the Closing at Buyer’s sole expense an endorsement the documents which they are required to Owner’s Policy so execute and deliver pursuant to Section 8.
(f) Buyer shall have received the legal opinion of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the CommitmentAvansino, as it may have been modified as contemplated by this Agreement (the “Title Policy”)Melarkey, with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy Xxxxxx & Xxxxxxxx in the form attached hereto as Exhibit 17.
(g) The Closing shall not directly or indirectly (with or without notice or lapse of time), violate, contravene, materially conflict with or result in a violation of any law and shall not violate any Order or decree of any court or Governmental Authority, and no suit, action, proceeding or investigation shall have been brought or threatened by any Person (other than Buyer or an affiliate of Buyer) which questions the “marked-up” Title Commitment promptly after validity or legality of this Agreement or the Closing Datetransactions contemplated hereby.
Appears in 1 contract
Buyer’s Conditions Precedent. BuyerThe following shall be conditions precedent to Bxxxx’s obligation herein to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:Property from Seller (“Buyer’s Conditions Precedent”):
(a) On or before the expiration As of the Inspection PeriodClosing Date, Buyer Seller’s representations and warranties contained herein shall have inspected be true and approved, correct in Buyer’s sole discretion, all aspects material respects and matters relating to the Property, Seller shall not be in default of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.obligation herein;
(b) On or before As of the respective dates provided for hereinClosing Date, Seller the Title Company shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement be irrevocably committed to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver issue to Buyer at the Closing at Buyer’s sole expense an endorsement to ALTA extended coverage Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), ) with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, liability in the full amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used hereinExceptions (as defined in Section 4.2), insuring Buyer’s interest in the Real Property, dated as of the Closing Date (provided, however, that if Buyer does not obtain prior to the Due Diligence Expiration Date a Survey that is sufficient to allow the Title Company to issue an ALTA extended coverage owner’s policy of title insurance, then, notwithstanding the foregoing, the term “Buyer EndorsementsTitle Policy” shall mean such endorsements as Buyer has requested by the end be a standard coverage owner’s policy of the Inspection Period and title insurance unless the Title Insurer has agreed Company otherwise agrees to issue extended coverage with a survey exception); and
(c) Seller shall have executed and delivered to the Escrow Agent at least one (1) business day prior to the Closing Date, the following:
(i) a Grant Deed for the Real Property in the Title Commitment by form attached hereto as Exhibit C and made a part hereof (the end of “Deed”), duly acknowledged;
(ii) the Inspection Period. General Assignment;
(iii) the Settlement Statement;
(iv) the Seller Lease;
(v) a California Franchise Tax Board Form 593-C, or the Management Company (similar document, to the extent permitted required by the Title Insurerapplicable law;
(vi) shall execute at the Closing an affidavit in such form as certifying that Seller is not a “foreign person” within the Title Insurer shall reasonably require for the issuance meaning of Section 1445(f)(3) of the Title Policy andInternal Revenue Code of 1986, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy substantially in the form attached hereto as Exhibit D and/or as required by the laws of the State where the Real Property is located (collectively, the “marked-up” FIRPTA Affidavit”);
(vii) any other documents reasonably required of it by Escrow Agent or the Title Commitment promptly after Company, including without limitation a Seller’s Affidavit; and
(viii) a certificate certifying to Buyer that all of the representations and warranties of Seller contained herein, updated, if necessary, to reflect events that have occurred since the Effective Date that do not constitutes breaches of this Agreement by Seller, are true and correct in all material respects as of Closing, or if untrue, specifying which are not true and correct. The conditions set forth in this Section 7.2 are solely for the benefit of Buyer and may be waived only by Bxxxx. Buyer shall, at all times prior to the termination of this Agreement, have the right to waive any of these conditions. Notwithstanding anything to the contrary herein, if Seller is unable to timely satisfy a Buyer’s Condition Precedent, then, (i) Seller may, if it so elects and without any abatement in the Purchase Price, adjourn the Closing Datefor a period not to exceed twenty (20) days in the aggregate, during which Seller shall use commercially reasonable efforts to satisfy Buyer’s Conditions Precedent and (ii) if, after any such extension, the Buyer’s Conditions Precedent continue not to be satisfied (and Bxxxx has not waived the same) or Seller does not elect such extension and, in either case, such failure of Buyer’s Condition Precedent is not the result of Seller’s default hereunder, then Buyer shall be entitled to terminate this Agreement by notice thereof to Seller. If this Agreement is so terminated, then Buyer shall be entitled to receive the Deposit and neither party shall have any further obligations hereunder, except those expressly stated to survive the termination hereof.
Appears in 1 contract
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise 's obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On the delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the executed original Transfer Documents;
(b) the issuance of the Owner's Policy (or before a written commitment therefor) subject only to those matters approved or deemed approved by Buyer pursuant to this Agreement;
(c) the delivery by Seller to Buyer at XXX of all security deposits and pre-paid/abated rents under the Lease, if any, in the form of a credit in favor of Buyer against the Additional Funds;
(d) the deposit by Seller with Buyer prior to expiration of the Study Period of (i) an original estoppel certificate naming Buyer (or its designee) and Wachovia Bank, National Association as addressees, which certificate must be reasonably acceptable to Buyer and Seller, and (ii) a subordination, non-disturbance and attornment agreement, in form and substance reasonably acceptable to Tenant, for the benefit of Wachovia Bank, National Association, both executed by Tenant under the Lease;
(e) the deposit with Escrow Agent and Buyer prior to the expiration of the Inspection PeriodStudy Period of an executed waiver by Tenant of any right of first refusal under the Lease;
(f) the deposit with Escrow Agent of an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics' lien exception from the Owner's Policy;
(g) the delivery by Seller to Buyer of the Certificate of Occupancy for the Improvements or a copy thereof, if available;
(h) the deposit with Escrow Agent of a letter from Seller to the lessee under that certain Oil & Gas Lease recorded March 9, 1990 in Volume 911, Page 451 and re-recorded July 23, 1999 in Imaging No. 1999057057 of the Xxxxx County, Ohio real property records (the "Oil & Gas Lease") requesting that future rent under said Oil & Gas Lease be paid to Buyer;
(i) the deposit with Escrow Agent of a letter from Seller to Tenant requesting that future rent under the Lease be paid to Buyer; and Rite Aid Alliance, OH
(j) delivery to Buyer of originals of the Lease, the Contracts and Permits, if any, in the possession of Seller or Seller's agents, and any correspondence with respect thereto, together with such non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance of the Property. If the foregoing conditions have not been satisfied or expressly waived in writing by Buyer by the specified date or XXX as the case may be, such failure shall not constitute a breach or default by Seller, but Buyer shall have inspected the right, at Buyer's sole option, by giving written notice to Seller and approvedEscrow Agent, to cancel this Agreement, whereupon the Xxxxxxx Money Deposit plus interest shall be paid immediately by Escrow Agent to Buyer and, except as otherwise provided in Buyer’s sole discretionthis Agreement, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration neither of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition Parties shall be deemed to have been satisfied without any further notice.
(b) On liability or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to obligation under this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 1 contract
Samples: Assignment of Purchase Agreement (Cole Credit Property Trust II Inc)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in Seller agrees that this Purchase Agreement shall be conditioned upon the fulfillment of Buyer satisfying itself, in its sole and absolute judgment, that the following conditions precedentprecedent with respect to the Property are met:
(a) On or before the expiration Buyer's inspection and approval of the Inspection PeriodLand, the Building, the Parking Land, Personal Property, the Other Agreements (as hereinafter defined) and all other information required herein to be provided to Buyer by Seller, all during regular weekday business hours. Seller agrees to allow Buyer and its agents the right of any ingress or egress over and through the Property for the purpose of inspecting the same and making other observations as Buyer deems reasonably necessary. Buyer agrees to indemnify and hold Seller harmless from all injury, death or property damage or claims of any kind whatsoever including mechanic's liens arising out of or in any way incidental to Buyer's presence on the Property for the purposes aforesaid. This indemnity shall have inspected survive the termination of this Purchase Agreement, regardless of which party elects to terminate this Purchase Agreement. To the extent Seller has not already done so, Seller agrees to provide to Buyer copies of or allow Buyer access to the following items within ten (10) days from the execution of this Purchase Agreement:
(i) copies of Plans and approvedSpecifications, blueprints, operating manuals, surveys and licenses, if any, in Buyer’s sole discretionSeller's possession, used to operate the Buildings and the remainder of the Property;
(ii) complete copies of all aspects contracts ("Other Agreements") and matters relating leases ("Leases") currently affecting the Property;
(iii) copies of all permits or authorizations, if any, in Seller's possession, required to be issued by any governmental body having jurisdiction in connection with any state of facts or activity presently existing or being carried on with respect to the Property;
(iv) copies of all warranties and guaranties, of any nature whatsoeverif any, or waived such approval, in Buyer’s sole which are still effective and absolute discretion; provided, that notwithstanding anything herein which pertain to the contrary, if Buyer fails to deliver to Seller, on Property or before the expiration any portion thereof ("Warranties");
(v) inventory of the Inspection Period, written notice Personal Property owned by the Seller and located on the Land and used in connection with the operation of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.Property;
(b) On Buyer may use the Property for its existing uses and its uses of the property located at 2201 Kennedy, 614 McKinley and 640 XxXxxxxy, xx xx February, 0000 ("Current Uses") without being in violation of any zoning classification, land use classification, environmental requirement, or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed any other use classification or building classification or requirement established by Seller pursuant to this Agreementany entity or authority having legal jurisdiction or authority thereover.
(c) The Title Insurer All utilities, including but not limited to electricity, gas, water (fire and domestic) storm and sanitary sewer, are available on site, through valid and adequate public or private easements for Current Uses; provided that in the case of private easements, they are appurtenant to the Property, or on the Property's side of abutting streets of size and capacity sufficient to serve the Current Uses.
(d) Buyer approving, as provided in Section V(A) hereof, any environmental audits for the Property.
(e) Within thirty (30) days of the date of this Purchase Agreement, Seller shall deliver provide Buyer with original estoppel certificates from all tenants of the Property in form reasonably acceptable to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership extent Seller is able to obtain the same by exercising its best effort. This Purchase Agreement shall be deemed terminated and neither party liable to the other herein unless Buyer affirmatively accepts or waives in writing to Seller the foregoing conditions by January 15, 2002. Upon any such termination of this Purchase Agreement by Buyer failing to waive or accept all of the Real Property foregoing conditions or as contemplated provided in the last sentence of this Section, all parties hereto shall be released from all duties and obligations to each other contained herein (except for Buyer's Indemnity under Section 2.01 hereof Sections IV(a) and V(A) hereof) and upon such termination Buyer shall be entitled to a partial or full refund of the Deposit as described in accordance with Sections III(b) or III(c) hereof. Notwithstanding the Commitmentforegoing, as it Buyer may have been modified as contemplated by elect to terminate this Purchase Agreement (between January 15, 2002 and the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to date of closing in the event (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder)environmental testing done between such dates pursuant to Section V hereof reveal a contamination previously unknown on January 15, 2002, or (ii) mechanic’s liensa change in any item referred to in (b) above occurs between January 15, (iii) survey issues (which shall be replaced by a “reading” 2002 and the date of closing so as to prohibit the use of the Survey and an exception only Property for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateCurrent Uses.
Appears in 1 contract
Samples: Option Agreement (Techne Corp /Mn/)
Buyer’s Conditions Precedent. Notwithstanding anything in this Agreement to the contrary, Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement Property shall be conditioned subject to and contingent upon the fulfillment satisfaction or timely waiver by Buyer of each of the following conditions precedent:
(a) On or before the expiration Closing Date, the timely performance by Seller of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, material covenant and undertaking and agreement to be performed by Seller pursuant to this AgreementAgreement and the continued truth or accuracy as of the Closing Date of the representations and warranties of Seller made as of the Effective Date. If Seller becomes aware that any representation or warranty of Seller should be modified due to changes in circumstances or additional information which becomes available following the Effective Date, Seller shall deliver to Buyer a statement correcting such representation or warranty. Seller shall not be liable to Buyer for, or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty which results from any change that (A) occurs between the Effective Date and the Closing Date, and (B) is not prohibited under this Agreement or is beyond the reasonable control of Seller to prevent (including the discovery by Buyer or Seller of additional information prior to the Closing Date). Notwithstanding the foregoing, if the breach of such representation or warranty is materially adverse to Buyer, Buyer may treat such event as a failure of its conditions precedent and may terminate this Agreement under Section 3.3 below, or if such breach arises from a change which is a result of Seller’s breach of its obligations under this Agreement or an intentional act or omission which makes a Seller’s representation or warranty untrue, then Buyer may treat such event as a default by Seller. If Buyer proceeds to purchase the Property, it shall be deemed to have waived any claims arising out of such breach.
(b) Prior to the expiration of the Investigation Period, Buyer’s inspection and approval, in Buyer’s sole discretion, of all physical, environmental, economic and legal matters relating to the Property, all pursuant to and subject to the limitations in Section 3.4 below.
(c) The Title Insurer Buyer’s receipt at least five (5) days prior to the Closing Date of Estoppel Certificates substantially in the form of EXHIBIT H, or with such modifications thereto as may be made by the tenant so long as the tenant has made at least the certifications required in a form of estoppel certificate attached to its Tenant Occupancy Lease, executed by Dewey, Ballantine, Xxxxxxx XxXxxxxxx, DLA Xxxxx Xxxxxxx, Xxxxxxxxx Xxxxxxx and Xxxxxx & Xxxxx (the “Major Tenants”) and at least two (2) of the following tenants: Xxxxx Xxxxxxx, Greater Bay Bancorp and Wachovia Securities, LLC (the “Secondary Tenants”) and estoppels from tenants must include those from tenants (inclusive of the Major Tenants and the requisite Secondary Tenants) which, in the aggregate, lease at least seventy five percent (75%) of the leased square footage. Seller shall not be obligated to expend any funds in connection with obtaining any Estoppel Certificates and the failure of Seller to obtain any Estoppel Certificates shall not be a breach of this Agreement by Seller. In the event that Seller has been unable to obtain the Estoppel Certificates from tenants under Tenant Occupancy Leases covering at least seventy five percent (75%) of the leased area in the Property, the condition precedent set forth in this paragraph 3.1(c) relating to obtain estoppel certificates for at least seventy five percent (75%) of the leased area shall be deemed satisfied if Seller shall deliver its own certificate (“Seller’s Certificate”) to Buyer at in the Closing at Buyer’s sole expense an endorsement to Owner’s Policy form of Title Insurance EXHIBIT H-1 with respect to those Tenant Occupancy Leases for which Seller did not obtain a tenant’s Estoppel Certificate; provided that a Seller’s Certificate may not be substituted for any Major Tenant or Secondary Tenant or for other tenants which, in the Partnership’s ownership aggregate, lease more than ten percent (10%) of the Real Property as contemplated leased square footage in the Property. If an Estoppel Certificate from a tenant that did not execute one previously is delivered to Buyer, then such tenant’s certificate shall replace the Seller’s Certificate to the extent they are not inconsistent, and Seller shall not have any obligations or liabilities under Section 2.01 hereof the Seller’s Certificate to the extent that it is so replaced. Buyer shall not be required to accept (and in accordance the same shall not count towards satisfaction of the estoppel condition, any certificate which discloses: (i) a material uncured default by the tenant or the landlord under the lease; (ii) any correct information that is materially inconsistent with the Commitmentterms of the lease; (iii) any right to set-off in favor of the tenant or (iv) any material claim by the tenant against the landlord.
(d) Prior to the expiration of the Investigation Period, as it may Buyer’s review and approval of the matters affecting title to the Property.
(e) Prior to the end of the Investigation Period, Buyer and the Existing Lender shall have been modified as contemplated by this agreed upon the form of the Loan Assumption Agreement and prior to the closing Date, the Existing Lender shall have executed, acknowledged and delivered the Assumption Agreement into Escrow.
(f) As of the Closing, the absence of any outstanding default of Seller under the Existing Loan Documents.
(g) The willingness of Title Company to issue, upon the sole condition of the payment of its regularly scheduled premium, its American Land Title Association (“ALTA”) owner’s extended coverage form policy of title insurance (“Buyer’s Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, insuring Buyer in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple Price that title to the Property Land and Improvements is vested of record in Buyer on the Closing Date, subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean printed conditions and exceptions of such endorsements as Buyer has requested by the end of the Inspection Period policy and the Title Insurer has agreed to issue Permitted Exceptions described in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateSection 5.1 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Buyer’s Conditions Precedent. The following shall be conditions precedent to Buyer’s obligation to purchase consummate the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment Closing of the following conditions precedent:Transactions (collectively, “Buyer’s Conditions Precedent”):
(a) On or before 9.1.1 Buyer shall have obtained the approval of the board of directors of its member, Xxxxx Properties, Inc., of the purchase and sale transaction contemplated herein, provided that any such approval must be obtained prior to expiration of the Inspection Period, Due Diligence Period and Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further noticewaived such condition if it delivers its notice of election to proceed pursuant to Section 4.5.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) 9.1.2 The Title Insurer Company shall deliver stand ready to Buyer issue at the Closing at Buyeran extended coverage ALTA Owner’s sole expense Policy of Title Insurance for each Individual Property (and an endorsement to ALTA Leasehold Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of leasehold interests under the Real Property as contemplated under Section 2.01 hereof and in accordance Salisbury Ground Lease), together with a non-imputation endorsement reasonably acceptable to Buyer, subject only to the CommitmentPermitted Exceptions (collectively, as it may have been modified as contemplated by this Agreement (the “Title PolicyPolicies”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due insuring each Owner’s and payable which are apportioned hereunder), (ii) mechanicthe purchaser of Salisbury Ground Seller’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages interest in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the each Individual Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase PricePrice allocated thereto, containing Buyerdated as of the day of the Closing.
9.1.3 There shall exist no breach of any of Seller’s Endorsements representations and warranties set forth in Section 7 or elsewhere hereunder (and without taking into effect any updates thereto which disclose a breach thereof) or any material obligation or covenant of Seller hereunder as hereinafter defined), insuring of the Partnership as owner of fee simple title Closing.
9.1.4 Seller shall have delivered to the Property subject only to Escrow Company the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue items described in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateSection 11.1.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rouse Properties, Inc.)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise proceed to perform any obligation provided in Closing under this Agreement shall be conditioned upon the fulfillment of is subject to the following conditions precedent:
(a) On or before the expiration of the Inspection Period, Buyer Seller shall have inspected performed and approved, in Buyersatisfied each and all of Seller’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further noticeobligations under this Agreement.
(b) On or before Each and all of Seller’s representations and warranties set forth in this Agreement shall be true and correct at the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each Contract Date and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreementat the Closing Date.
(c) The Title Insurer Buyer receiving all corporate and partnership approvals to complete this transaction on or before the Inspection Date. In the event this condition is not satisfied on or prior to the Inspection Date, Buyer may deliver written notice thereof to Seller on or before the Inspection Date whereupon this Agreement shall deliver cease and terminate, the Xxxxxxx Money shall be returned and paid to Seller, and neither party shall have any further obligation hereunder except those which expressly survive the termination of this Agreement. If Buyer fails to notify Seller on or before the Inspection Date, this condition shall be deemed waived.
(d) There shall have been no adverse change to the title to the Property which has not been cured.
(e) Buyer shall have received the Tenant Estoppel Certificate in the form of Exhibit “M” attached hereto, duly executed by the Tenant and delivered to Buyer at least five (5) days prior to the Closing at Buyer’s sole expense an endorsement to Owner’s Policy Date.
(f) Seller will deliver a copy of Title Insurance with respect the letter of understanding (“Letter of Understanding”) substantially in the form attached as Exhibit B of the Lease executed by the Tenant on or before five (5) days prior to the Partnership’s ownership Closing Date. In the event any of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which foregoing conditions are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference satisfied prior to “tenants under the leases described on the Rent Roll delivered or at the Closing, as tenants only without subject to Section 8.2 hereof, Buyer may terminate this Agreement by written notice to Seller and thereafter shall have no obligation to proceed with the Closing, the Xxxxxxx Money shall be returned and paid to Buyer, and neither party shall have any further obligation hereunder except those which expressly survive the termination of this Agreement. Notwithstanding the foregoing, nothing contained herein shall waive or diminish any right or option to purchase all remedy Buyer may have for Seller’s default or any part breach of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datethis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Fund Xiv Lp)
Buyer’s Conditions Precedent. Buyer’s The obligation of Buyer to purchase the Partnership Interests Assets is subject to the satisfaction, at or otherwise to perform any obligation provided in this Agreement shall be conditioned upon before the fulfillment Closing, of each of the following conditions precedentconditions:
(a) On The representations and warranties of Seller contained in Section 9 shall be true and correct in all material respects, except as to those representations and warranties which contain a materiality exception in which case such representations and warranties of Seller shall be true and correct in all respects, at Closing as if the same were made on and as of that date.
(b) Seller shall have performed and complied with all agreements, covenants and conditions required by this Agreement to be performed or before the expiration complied with by Seller prior to or at Closing.
(c) The simultaneous closing of each of the Inspection Periodtransactions subject to the Wildflower Purchase Agreement and Willow Brook Purchase Agreement (the “Related Agreements”) with this transaction on the terms provided for in each respective Related Agreement, it being specifically understood and agreed between Buyer and Seller that this Agreement represents one part of a multi-part transaction related to three (3) properties and that it is the agreement of Buyer and Seller that, unless this condition is waived in writing by Buyer and Seller, this transaction shall not close unless the transactions subject to the Related Agreements close simultaneously with this transaction; provided, however, if the transaction subject to the either or both of the Related Agreements is terminated on account of material damage to the real property subject thereto, the closing of such transaction shall not be a condition precedent to this Closing.
(d) Seller shall not be in default, where said default cannot be cured by Closing, under any mortgage, contract, lease or other agreement affecting or relating to the Facility or any of the other Assets.
(e) No suit, action or proceeding shall be pending or threatened by any third party before any governmental authority in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with this Agreement or the transactions contemplated thereby nor shall there have been filed by or against Seller at any time prior to the Closing Date any bankruptcy, reorganization or arrangement petition.
(f) Buyer shall have inspected secured all necessary consents and/or approvals of governmental authorities or third parties listed on Exhibit 11(n), including without limitation all licenses and approvedpermits necessary for the lawful operation by Buyer of the Facility as an assisted/independent living facility with no less than thirty six (36) licensed assisted living units and forty four (44) independent living units.
(g) Except for any damage, destruction or condemnation subject to Section 22 hereof, there shall have been no Material Reduction (as hereinafter defined) in Buyerthe census of the Facility since the Execution Date nor any Substantial Change (as hereinafter defined) in the condition of the Real Property, the Facility or the other Tangible Assets. For purposes hereof, a Material Reduction in census shall mean a loss of more than 10 residents from the number of persons residing at the Facility at the end of the Feasibility Period and a Substantial Change in the condition of the Real Property, the Facility or the other Tangible Assets shall mean that the cost to Buyer to repair or replace the same will exceed, individually or in the aggregate, Fifty Thousand and no/100 Dollars ($50,000). The provisions of this Section 13(g) shall not limit or restrict Seller’s sole discretion, all aspects and matters relating covenant to maintain the Assets as provided in Section 11(i).
(h) Buyer shall have secured the approval of its Board of Directors to the Property, of any nature whatsoever, or waived such approval, transaction provided for herein and in Buyer’s sole and absolute discretionthe Related Agreements; provided, that notwithstanding anything herein to the contraryhowever, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such this condition shall be deemed to have been satisfied without further noticeor waived unless Buyer has advised Seller at or prior to the end of the Feasibility Period that it is unable to secure such approval.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(ci) The Title Insurer Insurance Policy shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed ratesCompany, as applicable as insuring Buyer’s title to all of the date and time of the issuance of the Title PolicyReal Property, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title subject to the Property subject only to the no exceptions other than Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end If any one or more of the Inspection Period conditions set forth above are not satisfied prior to Closing and are not waived in writing by Buyer prior to the Closing then, Buyer may terminate this Agreement by notice, in writing, with sufficient detail to inform Seller of the reasons for the termination, delivered to Seller and the Title Insurer has agreed Escrow Agent that Buyer elects to issue in terminate this Agreement, and upon receipt of which the Title Commitment by Escrow Agent shall cancel the end of the Inspection Period. Seller or the Management Company (Escrow and return all documents to the extent permitted by depositing party, and Buyer’s rights and remedies shall be as provided in Section 23 hereof. Provided, if Buyer elects to close the Title Insurer) shall execute at the Closing an affidavit in transaction with written notice or knowledge that any such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall condition has not incur any additional cost been satisfied or liabilitywaived, Buyer Endorsements. The Title Policy may shall be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing deemed to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datehave waived any such condition.
Appears in 1 contract
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow with respect to either Property are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Periodexecuted original Transfer Documents for such Property and, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to at XXX of the Phase I Property, the Right of any nature whatsoeverFirst Offer Agreement and the Memorandum of ROFO (as both are defined below); Xxxxx Xxxxxxxx Xxxxxxxxxx, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.XX 0000-0000-0000.4
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, Owner’s Policy (or a written commitment therefor) for such Property in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined)Price allocated to such Property, insuring the Partnership as owner of that Buyer has good and marketable fee simple title to the Property subject only to those matters approved or deemed approved by Buyer pursuant to this Agreement showing that all taxes, assessments, and municipal charges which are due have been paid, and containing the Permitted Exceptions. As used hereinendorsements (or revisions to Schedule B, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company applicable) listed below (but only to the extent permitted that such endorsements are available in the jurisdiction where such Property is located): specific access/access via insured easement, survey, owner’s comprehensive (ALTA 9.2), zoning (including parking/sufficiency), contiguity (if applicable), designation of improvements/address, tax parcel, subdivision, tax sale, arbitration deletion and forced removal/CLTA 103.3 for all setback line violations and easement encroachments;
(c) the delivery by Seller to Buyer at XXX of all security deposits and pre-paid/abated rents under the Title InsurerLease, if any, in the form of a credit in favor of Buyer against the Purchase Price;
(d) shall execute at the Closing deposit by Seller with Buyer not later than five (5) days prior to each XXX of: (i) an affidavit original estoppel certificate, in the form of Exhibit G attached hereto and made a part hereof (or in such form as may be prescribed under any Lease) (u) dated not more than thirty (30) days prior to XXX, (v) executed by Tenant and naming Buyer (or its designee) and any lender of which Buyer provides written notice to Seller pursuant to the Title Insurer shall reasonably require for notice provisions hereof (“Lender”) as addressees, (w) verifying the issuance basic facts of the Title Policy andLease (term, provided rental, expiration date, options, if any exist), (x) confirming that there are no defaults by the landlord under the Lease and that no percentage rents or impounds are paid pursuant to the Lease (or specifying the amount(s) thereof), (y) confirming that all punchlist items have been completed by Seller shall not incur any additional cost and accepted by Tenant and that all improvements have been completed in accordance with the Lease, and (z) if Tenant’s obligations under the Lease have been guaranteed by another person or liabilityentity, Buyer Endorsements. The Title Policy may also cover such guaranty and also be delivered after the Closing if at the Closing the Title Insurer issues signed by such guarantor(s), (ii) a currently effectivesubordination, duly non-disturbance and attornment agreement executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy by Tenant in the form attached to the Lease, for the benefit of Lender, and (iii) an original estoppel certificate executed by all other parties of any applicable reciprocal easement agreement or declaration of covenants, conditions and/or restrictions (the “REA’s”) and addressed or certified to Buyer and Lender stating that such instrument is in full force and effect and is not modified (except as disclosed in such estoppel certificate) and, to the best knowledge of the “markedparty giving the estoppel, the other party or parties thereto is/are not in default under the applicable instrument and all amounts, if any, owing under the applicable agreement have been paid in full;
(e) Intentionally Deleted;
(f) the deposit with Escrow Agent of an executed affidavit of Seller or, if Seller is a single-up” Title Commitment promptly after asset entity, of Seller’s principals or parent entity, and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics’ lien exception from the Owner’s Policy;
(g) the delivery by Seller to Buyer of the final and unconditional Certificate of Occupancy for the Improvements; Xxxxx Xxxxxxxx Xxxxxxxxxx, XX 0000-0000-0000.4
(h) the deposit with Escrow Agent of a letter from Seller to Tenant requesting that future rent under the Lease be paid to Buyer;
(i) delivery of the SEC Filing Information (as hereinafter defined) by Seller to Buyer not less than five (5) days prior to XXX;
(j) delivery to Buyer of the original, fully-executed Lease, and a copy of all guaranties thereof, all exhibits, amendments and other modifications thereto, and, if Seller is not the original landlord under the Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under the Lease;
(k) delivery to Buyer of originals of the Contracts, Warranties and Permits, if any, in the possession of Seller or Seller’s agents, including, without limitation, any warranties covering the roof or any other part of the Improvements, and any correspondence with respect thereto, together with such non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance of the Property;
(l) Tenant has accepted possession of the Property and is contractually obligated to pay, and has commenced payment of, full rent pursuant to the Lease;
(m) receipt by Buyer of an updated environmental report and property condition report, each dated within thirty (30) days of XXX and neither of which identifies any new issues with the environmental condition of the Property or any deficiencies in the Improvements located on the Property not previously disclosed to Buyer in Buyer’s Diligence or conspicuously and explicitly in Seller’s Diligence Materials; and
(n) as to the Phase II Property, receipt of the Buyer of (i) a final and unconditional Certificate of Occupancy for the Phase II Property; and (ii) a Certificate of Final Completion, including the punchlist items, of Landlord’s architect as set forth in the Lease. If the foregoing conditions have not been satisfied by the specified date or XXX as the case may be, then Buyer shall have the right, at Buyer’s sole option, by giving written notice to Seller and Escrow Agent, to (i) cancel this Agreement, whereupon the Xxxxxxx Money Deposit shall be paid immediately by Escrow Agent to Buyer and, except as otherwise provided in this Agreement, neither of the Parties shall have any further liability or obligation under this Agreement, or (ii) extend such specified date or XXX, as applicable, for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions. As aforesaid, in no event shall the Closing Dateof the Phase II Property occur without first having closed on the Phase I Property.
Appears in 1 contract
Samples: Purchase Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Buyer’s Conditions Precedent. Buyer’s The obligation of Buyer to purchase consummate the Partnership Interests or otherwise to perform any obligation provided in transactions contemplated by this Agreement shall be conditioned upon the fulfillment is subject to each of the following conditions precedent:
(a) On or before the expiration of the Inspection Period, Buyer Seller shall have inspected performed and approved, in Buyer’s sole discretion, complied with all aspects and matters relating terms of this Agreement required to the Property, of any nature whatsoeverbe performed by, or waived such approvalcomplied with, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein by Seller prior to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further noticeClosing.
(b) On or before Seller's Representations and Warranties set forth herein are true and correct in all material respects at the respective dates provided for hereintime of Closing, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreementas though made on the Closing date.
(c) The Title Insurer No action or proceeding by any third party or by or before any governmental authority shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership have been instituted or threatened (and not subsequently dismissed, settled or otherwise terminated) which might restrain, prohibit or invalidate any of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as transactions contemplated by this Agreement agreement, other than an action or proceeding instituted or threatened by Buyer or any of its affiliates.
(the “d) The Purchase Price has not been reduced in an amount in excess of fifteen (15%) percent as a result of a portion of Seller's title having been found to suffer from uncured Title Policy”Defects or unremediated Material Adverse Environment Condition(s), as hereinabove defined, unless Buyer otherwise elects.
(e) Unless waived or otherwise agreed to by Buyer and Seller, Seller shall have obtained all consents to the transaction from third parties as set forth on Schedule 4.01(a)(6) and shall have obtained written waivers from all parties having preferential right to purchase any or all of the Assets, or the time period for exercising each such preferential right has expired, as such preferential rights are set forth on Schedule 4.01(a)(6).
(f) To the extent provided for in this Agreement, Buyer, or its nominee, has been designated as the operator of the Assets by any other non-operating working interest owner, if required.
(g) Seller shall have been provided with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted)title opinions covering all leases which comprise the Tigre Lagoon and Bayou Postillion Fields, with respect to (i) taxes (except for taxes as set forth in Exhibit "A," which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which opinions shall be replaced by addressed to Buyer and Seller in a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference form acceptable to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 1 contract
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise 's obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(ai) On the delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the executed original Transfer Documents;
(ii) the issuance of the Owner's Policy (or before a written commitment therefor) subject only to those matters approved or deemed approved by Buyer pursuant to this Agreement;
(iii) the delivery by Seller to Buyer at XXX of all security deposits and pre-paid/abated rents under the Lease in the form of a credit in favor of Buyer against the Additional Funds;
(iv) the deposit by Seller with Buyer prior to expiration of the Study Period of (i) an original estoppel certificate naming Buyer (or its designee) and Wachovia Bank, National Association as addressees, which certificate must be reasonably acceptable to Buyer, in Tenant's standard form, without any punch list items remaining, and (ii) a subordination, non-disturbance and attornment agreement, in form and substance reasonably acceptable to Tenant, for the benefit of Wachovia Bank, National Association, both executed by Tenant under the Lease;
(v) the deposit with Escrow Agent and Buyer prior to the expiration of the Inspection PeriodStudy Period of an executed waiver by Tenant of any right of first refusal under the Lease;
(vi) the deposit with Escrow Agent of an executed final lien waiver by the general contractor, an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics' lien exception from the Owner's Policy;
(vii) the delivery by Seller to Buyer shall have inspected and approved, of the final Certificate of Occupancy for the Improvements;
(viii) the delivery by Seller to Buyer of an architect's affidavit in Buyer’s sole discretion, all aspects and matters relating the form attached hereto as Exhibit G;
(ix) the delivery by Seller to Buyer of the leasehold title insurance policy provided to Tenant pursuant to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contraryLease, if Buyer fails any;
(x) the deposit with Escrow Agent of a letter from Seller to deliver Tenant requesting that future rent under the Lease be paid to Seller, on or before the expiration Buyer;
(xi) delivery of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements SEC Filing Information (as hereinafter defined), insuring ) and the Partnership SEC Filings Letter (as owner hereinafter defined) by Seller to Buyer not less than five (5) days prior to XXX; and
(xii) delivery to Buyer of fee simple title to originals of the Property subject only to the Permitted Exceptions. As used hereinLease, the term “Buyer Endorsements” shall mean Contracts, and Permits, if any, in the possession of Seller or Seller's agents and any correspondence with respect thereto, together with such endorsements as Buyer has requested non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance of the Property. If the foregoing conditions have not been satisfied by the end specified date or XXX as the case may be, then Buyer shall have the right, at Buyer's sole option, by giving written notice to Seller and Escrow Agent, to cancel this Agreement, whereupon the Xxxxxxx Money Deposit plus interest shall be paid immediately by Escrow Agent to Buyer and, except as otherwise provided in this Agreement, neither of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller Parties shall have any further liability or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateobligation under this Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Cole Credit Property Trust II Inc)
Buyer’s Conditions Precedent. Buyer’s The obligation of Buyer to purchase the Partnership Interests Assets is subject to the satisfaction, at or otherwise to perform any obligation provided in this Agreement shall be conditioned upon before the fulfillment Closing, of each of the following conditions precedentconditions:
(a) On The representations and warranties of Seller contained in Section 9 shall be true and correct in all material respects, except as to those representations and warranties which contain a materiality exception in which case such representations and warranties of Seller shall be true and correct in all respects, at Closing as if the same were made on and as of that date.
(b) Seller shall have performed and complied with all agreements, covenants and conditions required by this Agreement to be performed or before the expiration complied with by Seller prior to or at Closing.
(c) The simultaneous closing of each of the Inspection Periodtransactions subject to the Wildflower Purchase Agreement and Trillium Park Purchase Agreement (the “Related Agreements”) with this transaction on the terms provided for in each respective Related Agreement, it being specifically understood and agreed between Buyer and Seller that this Agreement represents one part of a multi-part transaction related to three (3) properties and that it is the agreement of Buyer and Seller that, unless this condition is waived in writing by Buyer and Seller, this transaction shall not close unless the transactions subject to the Related Agreements close simultaneously with this transaction; provided, however, if the transaction subject to the either or both of the Related Agreements is terminated on account of material damage to the real property subject thereto, the closing of such transaction shall not be a condition precedent to this Closing.
(d) Seller shall not be in default, where said default cannot be cured by Closing, under any mortgage, contract, lease or other agreement affecting or relating to the Facility or any of the other Assets.
(e) No suit, action or proceeding shall be pending or threatened by any third party before any governmental authority in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with this Agreement or the transactions contemplated thereby nor shall there have been filed by or against Seller at any time prior to the Closing Date any bankruptcy, reorganization or arrangement petition.
(f) Buyer shall have inspected secured all necessary consents and/or approvals of governmental authorities or third parties listed on Exhibit 11(n), including without limitation all licenses and approvedpermits necessary for the lawful operation by Buyer of the Facility as an assisted/independent living facility with no less than thirty-four (34) licensed residential care units and fifty-nine (59) independent living units.
(g) Except for any damage, destruction or condemnation subject to Section 22 hereof, there shall have been no Material Reduction (as hereinafter defined) in Buyerthe census of the Facility since the Execution Date nor any Substantial Change (as hereinafter defined) in the condition of the Real Property, the Facility or the other Tangible Assets. For purposes hereof, a Material Reduction in census shall mean a loss of more than 10 residents from the number of persons residing at the Facility at the end of the Feasibility Period and a Substantial Change in the condition of the Real Property, the Facility or the other Tangible Assets shall mean that the cost to Buyer to repair or replace the same will exceed, individually or in the aggregate, Fifty Thousand and no/100 Dollars ($50,000). The provisions of this Section 13(g) shall not limit or restrict Seller’s sole discretion, all aspects and matters relating covenant to maintain the Assets as provided in Section 11(i).
(h) Buyer shall have secured the approval of its Board of Directors to the Property, of any nature whatsoever, or waived such approval, transaction provided for herein and in Buyer’s sole and absolute discretionthe Related Agreements; provided, that notwithstanding anything herein to the contraryhowever, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such this condition shall be deemed to have been satisfied without further noticeor waived unless Buyer has advised Seller at or prior to the end of the Feasibility Period that it is unable to secure such approval.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(ci) The Title Insurer Insurance Policy shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed ratesCompany, as applicable as insuring Buyer’s title to all of the date and time of the issuance of the Title PolicyReal Property, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title subject to the Property subject only to the no exceptions other than Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end If any one or more of the Inspection Period conditions set forth above are not satisfied prior to Closing and are not waived in writing by Buyer prior to the Closing then, Buyer may terminate this Agreement by notice, in writing, with sufficient detail to inform Seller of the reasons for the termination, delivered to Seller and the Title Insurer has agreed Escrow Agent that Buyer elects to issue in terminate this Agreement, and upon receipt of which the Title Commitment by Escrow Agent shall cancel the end of the Inspection Period. Seller or the Management Company (Escrow and return all documents to the extent permitted by depositing party, and Buyer’s rights and remedies shall be as provided in Section 23 hereof. Provided, if Buyer elects to close the Title Insurer) shall execute at the Closing an affidavit in transaction with written notice or knowledge that any such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall condition has not incur any additional cost been satisfied or liabilitywaived, Buyer Endorsements. The Title Policy may shall be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing deemed to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datehave waived any such condition.
Appears in 1 contract
Buyer’s Conditions Precedent. Buyer’s obligation The obligations of Buyer to purchase consummate the Partnership Interests transactions to be performed by it in connection with the Closing or otherwise the Delayed Rig Closing, as applicable, are subject to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment satisfaction or waiver by Buyer of the following conditions precedent:precedent (Seller Parent and the Noble Parties being responsible for the satisfaction of (a), (b), (e), (f), (i), and, only in respect of execution and delivery by the relevant Noble Parties and not Saudi Aramco), (h):
(a) On or before the expiration The representations and warranties of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition Noble Parties set forth in Section 6.02 hereof, then such condition 3.2 shall be deemed to have true and correct in all material respects at Closing with the same force and effect as if such representations and warranties had been satisfied without further notice.made at and as of the Closing (or the Delayed Rig Closing, as applicable);
(b) On The Noble Parties shall have performed or before complied with all covenants and agreements it is required to perform or comply with hereunder at or prior to the respective dates provided for hereinClosing (or the Delayed Rig Closing, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.as applicable);
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership General Authority for Competition of the Real Property as contemplated under Section 2.01 hereof and in accordance with Kingdom of Saudi Arabia shall have cleared the Commitment, as it may have been modified as transactions contemplated by this Agreement or shall have notified the Parties in writing that it does not require that the Parties submit such transactions for its clearance and that such clearance (or non-requirement for clearance) is unconditional (the “Title PolicyKSA Antitrust Approval”);
(d) No Material Adverse Effect shall have occurred and be continuing;
(e) Subject to Section 2.3(h)(iii), the Rigs are to be, at the Closing Date (or the Delayed Rig is to be at the Delayed Rig Closing Date, as applicable), in the same overall condition, as provided in those certain Pre-Purchase Condition Surveys prepared for each of the Rigs by AqualisBraemar Marine Services LLC, fair wear and tear excepted (“Inspection Condition”), with extended coverage class maintained and free of average damage affecting class;
(i.e. with General Standard Exceptions 1 through 5 deletedf) The Noble Parties shall have obtained a certificate of permission to sell from the Liberian Registry authorizing the sale of the Rigs.
(g) There must not be in effect any law or judgment that would prohibit or make illegal the consummation of the transactions contemplated by this Agreement or cause those transactions to be rescinded following the Closing (or the Delayed Rig Closing, as applicable);
(h) The Novation Agreements relating to the Rigs to be conveyed at the Closing (or the Delayed Rig to be conveyed at the Delayed Rig Closing, with respect to as applicable) have been executed and delivered by Saudi Aramco and the relevant Noble Parties;
(i) taxes The Noble Parties must be ready and able to deliver to Buyer the Closing deliverables required under Section 6.1(a); and
(except for taxes which are not yet due j) Saudi Customs (Zakat, Tax and payable which are apportioned hereunder), (iiCustoms Authority) mechanic’s liens, (iii) survey issues (which shall be replaced by have agreed to a “reading” transfer of registration of the Survey Rigs from Contract Assignor, as the current temporary importer of the Rigs to Buyer’s Designated Affiliate without any requirement for the exporting and an exception only for re-importing the Rigs (the “shortages in areaCustoms Approval”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 1 contract
Buyer’s Conditions Precedent. BuyerThe following shall be conditions precedent to Xxxxx’s obligation to purchase close, in addition to all other conditions precedent set forth in this Agreement.
i. The City Council of the Partnership Interests City of Anaheim, acting as the legislative body of Buyer, shall have approved this Agreement and authorized its designative representative to execute on behalf of Buyer all documents necessary to the Close of Escrow.
ii. Buyer shall have reviewed the inventory of Personal Property immediately prior to the Closing and reasonably determined that the Personal Property is generally the same as when previously appraised, taking into account that during the term of the Agreement the Personal Property is subject to normal wear and tear and may have necessarily been replaced if damaged or otherwise worn out.
iii. Seller shall have timely delivered to perform any obligation provided Escrow Agent all of the items to be delivered by Seller pursuant to Paragraph 7.A hereof. Seller shall have timely delivered to Buyer all of the items to be delivered by Seller pursuant to Paragraph 7.B hereof.
iv. As of the Closing, Seller shall have timely performed all of the material obligations required by the terms of this Agreement to be performed by Seller.
v. Title Company is irrevocably committed to issue the Title Policy.
vi. All representations and warranties made by Seller to Buyer in this Agreement shall be conditioned upon the fulfillment true and correct as of the following Closing.
vii. The Real Property (or portion thereof) shall not have been damaged or destroyed by casualty or otherwise and no portion of the Real Property shall have been condemned or subject to any pending or threatened condemnation proceedings. Unless all of Buyer’s conditions precedent:
precedent contained in this Agreement are satisfied within the time period specified, or if no time period is specified, prior to or at Closing, Buyer, at its election, may, either (a) On extend the date for Closing until such conditions are satisfied, but no longer than ten (10) days beyond the original Closing date, or before (b) terminate this Agreement and have the expiration Deposit and any interest earned thereon immediately refunded to Buyer without further authorization or approvals of any kind from Seller or any other party, or (c) waive in writing the Inspection Periodsatisfaction of any such conditions, in which event this Agreement shall be read as if such conditions no longer existed. Notwithstanding the foregoing, if the failure of a Buyer’s condition to Closing is caused by a default by Seller, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating the right to exercise the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition remedies set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 1 contract
Samples: Agreement for Sale of Property
Buyer’s Conditions Precedent. BuyerXxxxx’s obligation to close the purchase at the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be Closing is expressly conditioned upon the fulfillment of the following conditions precedent, which conditions may be waived in writing by Xxxxx, in Xxxxx’s sole discretion:
(a) On or before the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition The Title Company shall be deemed unconditionally committed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver issue to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of ALTA Extended Coverage Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement Policy (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to ) which shall: (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements ; (as hereinafter defined), insuring the Partnership as owner of ii) insure fee simple title to the Property subject only to vested in Buyer; (iii) include a mechanics’ lien endorsement as may be required by Buyer; and (iv) contain no exceptions other than the Permitted Exceptions. As used herein, the term “Buyer Endorsements” .
(b) All of Seller’s representations and warranties as set forth in this Agreement shall mean such endorsements be true and correct as Buyer has requested by the end of the Inspection Period Closing.
(c) Seller shall have deposited with Escrow Holder the documents required to be deposited by Seller under the terms of this Agreement and shall not be in default in performing Seller’s obligations under this Agreement.
(d) Seller shall have terminated any possessory rights of third parties with respect to the Property, and all lessees, tenants, and occupants of the Property, if any, must have vacated the Property so that sole and exclusive possession of the Property can be provided to Buyer at the Closing. There shall be no parties in possession of any portion of the Property as lessees, tenants at sufferance, or trespassers.
(e) No moratorium as described in Section 10.01 shall have occurred.
(f) There shall not have occurred any material adverse change with respect to the Property from the condition existing as of the Effective Date.
(g) The Closing and the Title Insurer has agreed Adjacent Property Closing shall occur substantially concurrently such that Buyer acquires fee title to issue in the Title Commitment by Property and the end Adjacent Property, and possession of the Inspection Period. Seller or Property and the Management Company (Adjacent Property is delivered to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after on the Closing Date. If any of the conditions precedent are neither satisfied nor waived by Buyer by the Closing Date, Buyer may, in addition to all other rights and remedies, (a) terminate this Agreement by giving a written notice of termination to Seller, and in such case the Deposit shall be returned to Buyer, and neither Party shall have any further rights, obligations or liabilities under this Agreement other than those that expressly survive termination of this Agreement or (b) continue with the Closing and waive such condition as to the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Buyer’s Conditions Precedent. Buyer’s obligation to purchase consummate the Partnership Interests or otherwise to perform any obligation provided in transactions contemplated by this Agreement shall be conditioned upon is subject to the fulfillment satisfaction or waiver in writing of the following conditions precedent:precedent (the “Buyer Conditions Precedent”):
(a) On The transactions contemplated under this Agreement to be effected on the Closing Date shall not have been restrained or before prohibited by any injunction or order or judgment rendered by any court or other governmental agency of competent jurisdiction against Sellers or the expiration Operator, and no proceeding shall have been instituted and be pending in which any creditor of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating Operator or any Seller seeks to restrain such transactions or otherwise to attach any material part of the Property, of provided that any nature whatsoeversuch injunction, order, judgment or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in proceeding contemplated by this Section 6.02 hereof, then such condition 15.1(a) shall not be deemed to have been satisfied without further noticeinclude any injunction, order, judgment or proceeding brought by, through, under or against, or as a result of any acts or omissions of, Buyer, EAGL or any person or entity affiliated with Buyer or EAGL.
(b) On The representations and warranties contained in Sections 10.1(a), (b), (c), (k) (to the extent relating to Sellers’ ability to convey all or before substantially all of the respective dates provided for hereinProperty) and (l), Seller shall have, in a timely fashion, substantially performed each be true and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreementcorrect as of the Effective Date.
(c) The Title Insurer shall deliver to Buyer at On the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to Date, neither the Partnership’s ownership Operator nor any Seller shall have filed a petition for relief under the Federal Bankruptcy Code or any other present or future federal or state insolvency, bankruptcy or similar law (all of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the foregoing hereinafter collectively called “Title PolicyApplicable Bankruptcy Law”), with extended coverage nor shall an involuntary petition for relief have been filed against such Person under any Applicable Bankruptcy Law and not been dismissed.
(i.e. with General Standard Exceptions 1 through 5 deleted), with respect d) Seller shall have provided the Audited Financial Statements to (i) taxes (except for taxes which Buyer on or prior to the Closing Date. If the Buyer Conditions Precedent are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable satisfied as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liabilityDate, Buyer Endorsements. The Title Policy may be delivered after shall have the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits rights described in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateSection 17.1.
Appears in 1 contract
Samples: Purchase and Sale Agreement (CNL Income Properties Inc)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:
(a) On or before the expiration fifth (5th) business day after the Effective Date Seller, subject to Section 3(c), shall deliver to Buyer the Due Diligence Materials described on Schedule 2.1 (delivery electronically or pursuant to an election posting, which Purchaser can access shall satisfy such requirement), including copies of the Inspection Leases (including all amendments thereto) the documents evidencing and securing the First Mortgage Loan (the “First Mortgage Documents”) shall make available for inspection and copying all other documents relevant to Buyer’s due diligence. Seller shall provide Buyer with copies of any material notices or other material information received from or sent to any tenant during the Contingency Period, under any of the Leases and any leases subsequently entered into by Seller during the Contingency Period and subject to Section 2.1(c) provide access to Buyer shall have inspected and approvedits agents, in Buyer’s sole discretionemployees and contractors, upon reasonable prior notice and during normal business hours, to review all aspects other files and matters records relating to the Property and the operation, use, leasing and condition thereof which are in Seller possession either at the office of the property manager at the Property or at Seller’s office. To Seller’s knowledge, all material information in Seller’s possession relating to the Property and its use, condition, leasing and operation shall be made available to Buyer in such files and records. Seller shall make a copier available for copying any such files and records at such location by Buyer. Subject to the provisions of Section 9.3 hereof, Seller has provided and/or shall provide Buyer and its consultants and other agents and representatives with access to the Property to perform Buyer’s inspections and review and determine the present condition of the Property. Seller will make available for review and copying to Buyer, at Seller’s offices or at the Property, of any nature whatsoever, all Due Diligence Materials (as defined in this Section 2.1) in Seller’s possession or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver reasonably accessible to Seller, other than those described on or before Schedule 2.1, which shall be delivered to Buyer, except as otherwise specifically provided herein. Notwithstanding anything to the expiration contrary contained herein, the Due Diligence Materials shall expressly exclude (i) those portions of the Inspection Period, written notice Due Diligence Materials that would disclose Seller’s cost of acquisition of the failure Real Property, or cost of construction of the condition set forth Improvements and related soft costs, or any estimates of costs to repair, replace, remediate or maintain the Real Property, (ii) any reports, presentations, summaries and the like prepared for any of Seller’s boards, committees, partners or investors in Section 6.02 hereofconnection with its consideration of the acquisition of the Real Property, then such condition shall be deemed to have been satisfied without further notice.
construction of the Improvements or sale of the Property, (biii) On any proposals, letters of intent, draft contracts or before the respective dates like prepared by or for other prospective purchasers of the Property or any part thereof, (iv) Seller’s internal memoranda, financial projections, budgets, attorney-client privileged materials, structural or physical inspection reports, (v) internal appraisals, or annual appraisals prepared by Xxxxxxx Partners for internal review, (vi) accounting records, income tax returns and tax records (provided for herein, Seller shall havecooperate as reasonably required in an audit of the Building, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by KPMG, provided Seller’s warranty obligations or any other obligations hereunder shall not increase as a result thereof), and (vii) any information which is the subject of a confidentiality agreement between Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement a third party (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to items described in clauses (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference being collectively referred to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements“Confidential Information”). The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.Delivery
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland American Real Estate Trust, Inc.)
Buyer’s Conditions Precedent. Buyer’s The obligation of the Buyer to purchase consummate the Partnership Interests or otherwise to perform any obligation provided in transactions contemplated by this Agreement shall be conditioned upon is, at the fulfillment option of Buyer, subject to the satisfaction or waiver in writing by the Buyer (subject to applicable Laws) on or prior to the Closing Date of each of the following conditions precedent:
(a) On No preliminary or before the expiration permanent injunction or other order will have been issued (and remain in force) by any Governmental Authority having appropriate jurisdiction preventing consummation of the Inspection Periodtransactions contemplated by the Transaction Documents, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On to the extent required to be obtained prior to Closing, the consents, approvals and other items on Schedule 3.2 shall have been obtained;
6.2 No Proceeding will have been commenced by any Third Party against any of the Seller, the Buyer or before any of their respective Affiliates, associates, officers or directors seeking to restrain, enjoin, prevent or challenge the respective dates provided for hereintransactions contemplated by the Transaction Documents or seeking material damages arising from the transactions contemplated by the Transaction Documents;
6.3 All representations and warranties of the Seller contained herein (a) that are qualified by the term “material” or contain terms such as “material adverse change,” “material adverse effect” or other terms or Dollar amounts of similar import or effect (whether or not capitalized) shall be true and correct as of the Closing Date as though such representations and warranties were made at such time (except to the extent that a representation specifically relates to an earlier date, in which case as of such earlier date), and (b) that are not so qualified shall be true and correct in all material respects as of the Closing Date as though such representations and warranties were made at such time (except to the extent that a representation specifically relates to an earlier date, in which case as of such earlier date);
6.4 The Seller shall have, provide written evidence to Buyer that (a) SUSA has unconditionally consented to the assignment of the Seller’s interests in a timely fashion, substantially performed each and every covenant, undertaking and agreement the Properties to be performed by Seller the Buyer pursuant to this Agreement.
Agreement by countersigning a form of consent letter substantially in the form of Exhibit G; (cb) The Title Insurer shall deliver to Buyer at SUSA has waived its PPR under the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and Development Agreement or such PPR has otherwise expired in accordance with the Commitment, as it may have been modified as contemplated by this Agreement terms of the Development Agreement; and (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to c) either (i) taxes (except for taxes which are not yet due the Buyer shall have notified the Seller, pursuant to Section 5.14, that the Buyer is willing to assume and payable which are apportioned hereunder), accept at Closing the DA Assumed Obligations or (ii) mechanic’s liensSUSA shall have agreed in writing that the Properties actually assigned to the Buyer hereunder will, (iii) survey issues (which shall effective upon such assignment, cease to be replaced by a subject to the Development Agreement in any respect and will cease to be “readingJoint Interests” under the Development Agreement;
6.5 Consummation of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants transactions contemplated under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part terms of the Property”Transaction Documents is not prevented from occurring by (and the required waiting period, if any, has expired under) the HSR Act and (v) items raised after the effective date rules and regulations of the Title Commitment)FTC and the DOJ thereunder; and
6.6 The Seller will have performed or satisfied in all material respects on or prior to the Closing Date all obligations, issued covenants and agreements contained in this Agreement to be performed or complied with by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title Seller on or prior to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Southwestern Energy Co)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation obligations to close escrow and complete the purchase of the Partnership Interests or otherwise to perform any obligation provided in Property under this Agreement shall be conditioned upon are expressly subject to the fulfillment of the following conditions precedent:following: Purchase and Sale Agreement [Concept]--[City, State] EAST\76951995.6
(a) On or before the expiration Seller’s deposit with Escrow Agent, for delivery to Buyer at Closing, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On or before Buyer’s receipt of the respective dates estoppel certificate as provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Section 10 above;
(c) The Title Insurer shall deliver Seller’s deposit with Escrow Agent of an “Owner’s Affidavit” in the form attached as Schedule 4;
(d) Escrow Agent’s irrevocable commitment to Buyer at issue the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase PricePrice in the form approved by Buyer pursuant to the terms of Section 6;
(e) On the Closing Date, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only shall be conveyed to Buyer in accordance with the Permitted Exceptions. As used hereinstandards set forth in Section 6;
(f) Seller’s deposit with Escrow Agent of a letter from Seller to Tenant, complying with the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end notice requirements of the Inspection Period Leases and in form reasonably satisfactory to Buyer, directing that future rent under the Title Insurer has agreed Leases be paid to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company Buyer; and
(to the extent permitted by the Title Insurerg) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after On the Closing Date, the representations and warranties of Seller set forth in Section 18(a) shall be true, complete and accurate, subject to: (A) changes that: (x) are caused by the acts or omissions of Buyer or its agents or affiliates or (y) cannot reasonably be expected, individually or in the aggregate, to have a material adverse effect on the Property or (B) any deemed modification or modification to any Seller Representation pursuant to Section 18(b).
(h) Seller’s delivery to Buyer of all Warranties, Permits, and Property Documents, if any, in the possession of Seller or Seller’s agents (including without limitation any warranties covering the roof or any other part of the Buildings); any Intangibles capable of physical delivery; and any non-proprietary leasing and property manuals, files and records applicable to or useful in connection with the continued operation, leasing and maintenance of the Property. If the foregoing conditions have not been satisfied by the scheduled Closing Date, then either party will have the right, at such party’s sole option, to extend Closing so long as all such extensions elected by both parties shall not exceed thirty (30) days in the aggregate beyond the originally-scheduled Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise to perform If any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedentprecedent to Buyer’s obligations under this Contract is not satisfied, then Buyer may, at its option, waive such condition and close this transaction, or, as Buyer’s sole and exclusive remedy, terminate this Contract, in which event the Exxxxxx Money shall be returned to Buyer, and neither party shall have any further rights or obligations hereunder except other than as set forth herein with respect to rights or obligations which survive termination:
(a) On or before the expiration Each of the Inspection Period, Buyer representations and warranties made by Seller in Section 12 shall have inspected be true and approved, correct in Buyer’s sole discretion, all aspects material respects when made and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration as of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further noticeClosing Date.
(b) On Seller shall have performed or complied in all material respects with each obligation and covenant required by applicable laws and by this Contract to be performed or complied with by Seller on or before the respective dates provided for herein, Closing.
(c) Seller shall have, have performed or complied in a timely fashion, substantially performed all material respects with each material obligation and every covenant, undertaking and agreement covenant required to be performed by Seller pursuant to this Agreementthe Tenant Leases and the Service Contracts; provided that if Seller is in default of any such obligation, Seller shall be afforded an opportunity to either cure such default or to escrow at Closing an amount reasonably necessary to effect such cure. Contract of Sale — Hidden Lake Apartments
(d) Title to the Property and the other assets to be transferred hereunder shall be delivered to Buyer in the manner required under Section 6.
(ce) The Title Insurer shall deliver From the expiration of the Feasibility Period to Buyer the Closing Date, there has been no unlawful introduction of Hazardous Materials that would materially and adversely affect the environmental condition of the Property from that which existed at the Closing at expiration of the Feasibility Period. If any of the above described conditions precedent to Buyer’s sole expense an endorsement obligations hereunder is not satisfied, Buyer may, at its option, (A) waive such condition and close this transaction with no reduction in the Sales Price, or (B) terminate this Contract by notice in writing to Owner’s Policy of Title Insurance Seller in which event the Exxxxxx Money and any Extension Fee shall be returned to Buyer, and neither party shall have any further rights or obligations hereunder except other than as set forth herein with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes rights or obligations which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datesurvive termination.
Appears in 1 contract
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation obligations to close escrow and complete the purchase and sale of the Partnership Interests or otherwise to perform any obligation provided in Property under this Agreement shall be conditioned upon is expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration Seller’s deposit with Escrow Agent at Closing of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration executed original Transfer Documents required of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.Seller;
(b) On Seller’s deposit with Escrow Agent of (i) Escrow Agent’s customary form of “Owner’s Affidavit” and (ii) such additional affidavits, undertakings or before other documents as may be reasonably required by Escrow Agent to allow for the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each deletion of any mechanics’ lien exceptions and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.other typical exceptions from the Owner’s Policy;
(c) The Title Insurer shall deliver Escrow Agent’s irrevocable commitment to Buyer at issue the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy Price in the form approved by Buyer pursuant to the terms of Section 6;
(d) Seller’s delivery to Buyer of all Warranties, Permits, and Property Documents, if any, in the possession of Seller or Seller’s agents (including without limitation any warranties covering the roof or any other part of the “marked-up” Title Commitment promptly after Building); any Intangibles capable of physical delivery; and any property manuals, files;
(e) All of the representations and warranties of the Seller are true and correct as of the Closing Date; and
(f) Seller’s delivery to Buyer of a duly executed and acknowledged original of the Lease, executed in counterpart by Seller, and, if requested by Buyer, a short form of lease or memorandum of lease in form suitable for recording.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On Buyer’s confirmation during the Study Period that the Escrow Agent will issue the Owner’s Policy (or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement written commitment therefor) subject only to be performed those matters approved or deemed approved by Seller Buyer pursuant to this Agreement.Agreement at XXX;
(c) The Title Insurer shall deliver the delivery by Seller to Buyer at XXX of all security deposits and pre-paid/abated rents under the Closing Lease, if any, in the form of a credit in favor of Buyer against the Purchase Price;
(d) the deposit by Seller with Buyer not later than five (5) days prior to XXX of an original estoppel certificate in the form attached hereto as Exhibit G: (v) dated not more than thirty (30) days prior to XXX, (w) executed by Tenant and naming Buyer (or its designee) and any lender of which Buyer provides written notice to Seller pursuant to the notice provisions hereof (“Lender”) as addressees, (x) verifying the basic facts of the Lease (term, rental, expiration date, options, if any exist), (y) confirming that there are no defaults by the landlord under the Lease and that no percentage rents or impounds are paid pursuant to the Lease (or specifying the amount(s) thereof), and (z) if Tenant’s obligations under the Lease have been guaranteed by another person or entity, also cover such guaranty and also be signed by such guarantor(s). In addition Buyer may prepare and deliver to Seller an estoppel certificate to be executed by the parties to any applicable reciprocal easement agreement or declaration of covenants, conditions and/or restrictions identified by Buyer (the “REA’s”) and addressed or certified to Buyer and Lender stating that such REA is in full force and effect and is not modified (except as disclosed in such estoppel certificate) and, to the best knowledge of the party giving the estoppel, the other party or parties thereto is/are not in default under the applicable instrument and all amounts, if any, owing under the applicable agreement have been paid in full, and provided that Buyer identifies for Seller the parties that Buyer wishes to have sign such estoppel certificate, Seller shall then request and use commercially reasonable efforts to obtain for Buyer prior to XXX an original executed version of such estoppel certificate, provided, for purposes of clarity, that receipt of such REA estoppel certificate shall not be a condition precedent to Buyer’s obligations to proceed to XXX.
(e) the deposit with Escrow Agent and Buyer prior to XXX of an executed waiver by Tenant of the ROFR under the Lease;
(f) the deposit with Escrow Agent of a standard form of Owner’s Affidavit executed by Seller or, if Seller is a single-asset entity, of Seller’s principals or parent entity, to allow for the deletion of the mechanics’ lien exception from the Owner’s Policy;
(g) intentionally deleted;
(h) intentionally deleted;
(i) the deposit with Escrow Agent of a letter from Seller to Tenant requesting that rent payable after XXX under the Lease be paid to Buyer; If the foregoing conditions have not been satisfied by the specified date or XXX as the case may be, then Buyer shall have the right, at Buyer’s sole expense an endorsement option, by giving written notice to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof Seller and in accordance with the CommitmentEscrow Agent, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (cancel this Agreement, whereupon the Xxxxxxx Money Deposit shall be paid immediately by Escrow Agent to Buyer and, except for taxes which are not yet due and payable which are apportioned hereunder)as otherwise provided in this Agreement, neither of the Parties shall have any further liability or obligation under this Agreement, or (ii) mechanicextend such specified date or XXX, as applicable, for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions, but not longer than ten (10) days. At or promptly after XXX, but not as a condition precedent to Buyer’s liensobligation to proceed to XXX, Seller shall:
(iiiy) survey issues deliver to Buyer the original, fully-executed Lease, if an original is in Seller’s possession (which shall be replaced by or a “reading” copy if Seller is not in possession of the Survey original) and an exception only for “shortages in area”)a copy of all guaranties thereof, (iv) leases all exhibits, amendments and parties in possession (which shall be replaced by a reference to “tenants other modifications thereto, and, if Seller is not the original landlord under the leases described on Lease, all assignments necessary to establish that Seller is the Rent Roll delivered at successor-in-interest to the Closinglandlord’s rights under the Lease; and
(z) deliver to Buyer of originals or copies of the Contracts, as tenants only Warranties and Permits, if any, in the possession of Seller or Seller’s agents, including, without limitation, any right or option to purchase all warranties covering the roof or any other part of the Property”) Improvements, together with such non-proprietary leasing and (v) items raised after property manuals which are material in connection with the effective date continued operation, leasing and maintenance of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateProperty.
Appears in 1 contract
Samples: Purchase Agreement (Cole Corporate Income Trust, Inc.)
Buyer’s Conditions Precedent. Buyer’s The obligation of Buyer to purchase consummate the Partnership Interests or otherwise to perform any obligation provided in this Agreement transactions contemplated hereby shall be conditioned upon the fulfillment of the following conditions precedent:
(a) On or before the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used hereinfollowing conditions precedent unless, in any case, waived in writing by Buyer in its sole discretion:
(i) Escrow Agent shall have received and hold in escrow and Seller shall place in escrow, the term “Buyer Endorsements” shall mean following documents from Seller, signed but undated: the Bills of Sale; releases or terminations of all Liens except those arising by, through or under Buyer, if any, affecting title to the Aircraft, including without limitation, the Engines or Propellers, and such endorsements other documents, if any, as Buyer has requested may be required by the end Escrow Agent to transfer to Buyer good and marketable legal and beneficial title to the Aircraft free and clear of all Liens, except Liens arising by, through or under Buyer;
(ii) no Event of Loss shall have occurred;
(iii) the Aircraft is in the Delivery Condition;
(iv) the representations and warranties of Seller contained in Section 4 and 5 hereof shall be true and accurate in all material respects on and as of the Inspection Period Closing Date as though made on and the Title Insurer has agreed to issue in the Title Commitment by the end as of the Inspection Period. Seller or the Management Company (such date except to the extent permitted by that such representations and warranties relate solely to an earlier date (in which event such representations and warranties shall have been true and accurate on and as of such earlier date);
(v) the Title InsurerAircraft, including without limitation, the Engines and Propellers, shall be free and clear of all Liens of any kind whatsoever (or the Escrow Agent shall hold all necessary releases or terminations and shall be in position to make all filings or take other actions with the appropriate authorities to release and discharge such Liens upon Closing), including any Liens in favor of parties that worked on the correction of the Airworthiness Discrepancies or Working Order Discrepancies, except Liens arising by, through or under Buyer, and Seller shall have and be able to convey good and marketable title to the Aircraft, including without limitation, the Engines and Propellers, to Buyer;
(vi) the Buyer shall execute have received from the Escrow Agent FAA title searches and International Registry searches to show that the Aircraft is free and clear of all Liens (or the Escrow Agent shall hold, and Seller shall place in escrow, all necessary releases or terminations and shall be in position to make all filings or take other actions with the appropriate authorities to release and discharge such Liens upon Closing), except Liens arising by, through or under Buyer;
(vii) No Seller Breach shall have occurred and be continuing;
(viii) No change shall have occurred after the date of this Agreement under any Applicable Law which would make it illegal for any of Buyer or Seller to perform any of their respective obligations under the Sale Documents;
(ix) The Aircraft shall be located at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy Delivery Location; and, provided
(x) Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues registered as a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateTransacting User Entity.
Appears in 1 contract
Samples: Aircraft Sale Agreement
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation obligations to close escrow and complete the purchase of the Partnership Interests or otherwise to perform any obligation provided in Property under this Agreement shall be conditioned upon are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration Seller’s deposit with Escrow Agent, for delivery to Buyer at Closing, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On or before Seller’s delivery to Buyer of the respective dates estoppel certificate as provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Section 10 above;
(c) The Title Insurer shall deliver Seller’s deposit with Escrow Agent of (i) Escrow Agent’s customary form of “Owner’s Affidavit” and (ii) such additional affidavits, undertakings or other documents as may be reasonably required by Escrow Agent to Buyer at allow for the Closing at Buyerdeletion of any mechanics’ lien exceptions and other standard exceptions from the Owner’s sole expense an endorsement Policy;
(d) Escrow Agent’s irrevocable commitment to issue the Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring Price in the Partnership as owner of fee simple title form approved by Buyer pursuant to the Property subject only terms of Section 6;
(e) Seller’s deposit with Escrow Agent of a letter from Seller to Tenant, complying with the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end notice requirements of the Inspection Period Lease and in form reasonably satisfactory to Buyer, directing that future rent under the Title Insurer has agreed Lease be paid to issue in the Title Commitment by the end Buyer;
(f) Seller’s delivery to Buyer at Closing of the Inspection Period. Seller or the Management Company original, fully-executed Lease (to the extent permitted in the possession of Seller or Seller’s agents) or a legible copy thereof if Seller does not possess the original version and, if Seller is not the original landlord under the Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under the Lease; and
(g) Seller’s delivery to Buyer of all Warranties, Permits, and Property Documents, if any, in the possession of Seller or Seller’s agents (including without limitation any warranties covering the roof or any other part of the Building). If the foregoing conditions have not been satisfied by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the scheduled Closing Date, then Buyer will have the right, at Buyer’s sole option and without limiting any other right or remedy of Buyer, to extend Closing for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions, by giving written notice of such extension to Seller and Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Credit Property Trust V, Inc.)
Buyer’s Conditions Precedent. Buyer’s The obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:
(a) On or before Buyer to consummate the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as transactions contemplated by this Agreement is subject to the satisfaction or waiver in writing by the Buyer (subject to applicable Laws) at or prior to the Closing Date of each of the following conditions:
6.1 No preliminary or permanent injunction or other order will have been issued (and remain in force) by any Governmental Authority having appropriate jurisdiction preventing consummation of the transactions contemplated by this Agreement;
6.2 No Proceeding will have been commenced or threatened against any of the Sellers, the Buyer or any of their respective Affiliates, associates, officers or directors by any third party seeking to prevent or challenge the transactions contemplated by this Agreement or seeking material damages arising from the transactions contemplated by this Agreement;
6.3 All representations and warranties of each of the Sellers contained herein (a) that are qualified by the term “Title Policy”material” or contain terms such as “material adverse change,” “material adverse effect” or other terms or Dollar amounts of similar import or effect (whether or not capitalized) shall be true and correct as of the Closing Date as though such representations and warranties were made at such time (except to the extent that a representation specifically relates to an earlier date, in which case as of such earlier date), and (b) that are not so qualified shall be true and correct in all material respects as of the Closing Date as though such representations and warranties were made at such time (except to the extent that a representation specifically relates to an earlier date, in which case as of such earlier date);
6.4 Each of the Sellers will have performed or satisfied in all material respects on or prior to the Closing Date, all obligations, covenants, agreements and conditions contained in this Agreement to be performed or complied with extended coverage by the Sellers on or prior to the Closing Date;
6.5 No Material Adverse Effect described in clause (i.e. with General Standard Exceptions 1 through 5 deleted), a) of the definition of “Material Adverse Effect” shall have occurred since the Execution Date and be continuing as of the Closing Date;
6.6 The aggregate value of any Title Defects and Environmental Defects existing as of the Closing Date with respect to which the Buyer delivered a Defect Notice to the Sellers is less than thirty percent (i30%) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner ; and
6.7 The shares of fee simple title Gastar Exploration Ltd. common stock owned by Chesapeake shall have been delivered and endorsed for transfer to the Property subject only Gastar Entities pursuant to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements Stock Repurchase as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue described in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateSettlement Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Gastar Exploration USA, Inc.)
Buyer’s Conditions Precedent. Buyer’s 's obligation to purchase proceed to Closing of the Partnership Interests or otherwise Property and the Vacant Site respectively, under this Agreement is subject to perform any obligation provided the following conditions precedent as it relates to each Closing:
(a) Seller shall have performed and satisfied each and all of Seller's obligations under this Agreement; and each Lease; and
(b) Each and all of Seller's representations and warranties set forth in this Agreement shall be conditioned upon true and correct at the fulfillment of Contract Date and at the following conditions precedent:
(a) On or before the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this AgreementClosing Date.
(c) The Title Insurer For the Property, Seller shall deliver have delivered to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to Tenant Estoppel Certificates from (i) taxes Tenants leasing 8,000 rentable square feet or more (except for taxes which are not yet due and payable which are apportioned hereunder"Major Tenants"), and (ii) mechanic’s liensTenants representing at least seventy-five percent (75%) of the remaining leased rentable square feet of the Property (collectively, the "Minimum Tenant Estoppels"). If Seller is unable to obtain Tenant Estoppel Certificates from any Tenant, Seller shall execute and deliver Seller estoppel certificates containing the information set forth in the undelivered Tenant Estoppel Certificates (i.e. to achieve delivery of Tenant Estoppel Certificates from one hundred percent (100%) of the Tenants). Seller's representations and warranties in any Seller estoppel certificates will survive the Closing, subject to the limitations contained in Section 7.2 hereof. In the event that Buyer receives an estoppel certificate from a Tenant complying with the requirements of this Section 9.1(c), and for which Seller previously delivered its estoppel certificate, Seller shall be automatically released from any liability or obligation under its estoppel certificate. Any qualification of any assertion in the Tenant Estoppel Certificate regarding the status of the performance of any of landlord's obligations under the lease that such assertion is made "to Tenant's knowledge" or similar qualification made by a Tenant shall be acceptable.
(d) No Major Tenant shall be in default of their rent payment obligations under their Lease, and no Tenant shall have filed for bankruptcy protection.
(e) Seller shall have obtained an estoppel certificate from the responsible party under the reciprocal easement agreement/protective covenants for the development of which the Project is a part, based on the form attached hereto as EXHIBIT O.
(f) Seller shall have substantially completed construction of the Improvements as certified by Seller's architect on an AIA Certificate of Substantial Completion (Form G704). Seller shall have completed all tenant improvements required to be constructed by Seller, as landlord, under the Leases, except for tenant improvements related to Leases with Giovanni's Jewelry, Papa John's and Scrapbook Corner, which are addressed in Section 19 below.
(g) Seller shall have obtained final unconditional occupancy permits for the shell of the Buildings to the extent issued by the applicable governmental authority; provided, however, this condition shall not apply to any permits related to any tenant improvements being completed by Tenants and the tenant improvements being completed by Seller for Giovanni's Jewelry, Papa John's and Scrapbook Corner, and further, this condition shall be waived as to any Tenant space for which a final unconditional occupancy permit cannot be issued due to uncompleted improvements being made by the Tenant.
(h) Except for Leases at the Property to Giovanni's Jewelry, Papa John's and Scrapbook Corner, (iiii) survey issues (which 100% of the leasable Tenant space shall be replaced by a “reading” of the Survey fully occupied, and an exception only for “shortages in area”), (ivii) leases and parties in possession (which all Tenants shall be replaced by a reference to “tenants under the leases described occupying their space, open for business and paying full rent, including CAM, taxes and insurance, as shown on the Rent Roll and (iii) all free rent periods under any Lease shall have tolled or been credited to Buyer at Closing, and (iv) all leasing commissions applicable to any Lease signed as of the date of Closing shall have been paid or credited to Buyer at Closing, and (v) all Tenant improvement allowances shall have been paid to the applicable tenant or credited to Buyer at Closing (collectively, the "Tenant Conditions").
(i) Seller shall have delivered to Buyer a certificate of insurance from the Tenants and guarantors in the form and coverage as provided under the Leases. In the event any of the foregoing conditions are not satisfied prior to or at the Closing, as tenants only without subject to SECTION 7.2 hereof, Buyer may terminate this Agreement by written notice to Seller and thereafter shall have no obligation to proceed with the Closing, the Xxxxxxx Money shall immediately be returned and paid to Buyer, and neither party shall have any further obligation hereunder except those which expressly survive the termination of this Agreement. Notwithstanding the foregoing, (i) nothing contained herein shall waive or diminish any right or option to purchase all remedy Buyer may have for Seller's default or any part breach of the Property”) this Agreement and (vii) items raised after once the effective date of the Title Commitment)Property closes, issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title no conditions pertaining to the Property subject only shall be conditions pertaining to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end Closing of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateVacant Site.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation obligations to close escrow and complete the purchase of each, and all, of the Partnership Interests or otherwise to perform any obligation provided in Properties under this Agreement shall be conditioned upon the fulfillment of are expressly subject to the following conditions precedentwith respect to each Property:
(a) On or before the expiration Seller’s deposit with Escrow Agent, for delivery to Buyer at Closing, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On or before Seller’s delivery to Buyer of the respective dates estoppel certificate as provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Section 10 above;
(c) The Title Insurer shall deliver Seller’s deposit with Escrow Agent of (i) Escrow Agent’s customary form of “Owner’s Affidavit” and (ii) such additional affidavits, undertakings or other documents as may be reasonably required by Escrow Agent to Buyer at allow for the Closing at Buyerdeletion of any mechanics’ lien exceptions and other standard exceptions from the Owner’s sole expense an endorsement Policy;
(d) Escrow Agent’s irrevocable commitment to issue the Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring Price in the Partnership as owner of fee simple title form approved by Buyer pursuant to the Property subject only terms of Section 6;
(e) Seller’s deposit with Escrow Agent of a letter from Seller to Tenant, complying with the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end notice requirements of the Inspection Period respective Lease and in form reasonably satisfactory to Buyer, directing that future rent under the Title Insurer has agreed Lease be paid to issue in the Title Commitment by the end Buyer;
(f) Seller’s delivery to Buyer at Closing of the Inspection Period. Seller or the Management Company original, fully-executed Lease (to the extent permitted in the possession of Seller or Seller’s agents) and, if Seller is not the original landlord under any Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under such Lease; and
(g) Seller’s delivery to Buyer of all Warranties, Permits, and Property Documents, if any, in the possession of Seller or Seller’s agents (including without limitation any warranties covering the roof or any other part of the Building); any Intangibles capable of physical delivery; and any non-proprietary leasing and property manuals, files and records applicable to or useful in connection with the continued operation, leasing and maintenance of such Property. Master Purchase and Sale Agreement Walgreens—10 Pack
(h) The Assumption Document Approval. If the foregoing conditions have not been satisfied by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the scheduled Closing Date, then Buyer will have the right, at Buyer’s sole option and without limiting any other right or remedy of Buyer, to extend Closing for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions, by giving written notice of such extension to Seller and Escrow Agent.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Cole Credit Property Trust V, Inc.)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise 's obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On the availability to Buyer of the Owner's Policy (or before a written commitment therefor) subject only to those matters approved or deemed approved by Buyer during the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller Study Period pursuant to this Agreement.;
(c) The Title Insurer shall deliver the deposit by Seller with Buyer prior to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy XXX of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes an original estoppel certificate naming Buyer (except for taxes or its designee) and Wachovia Bank, National Association as addressees, which are not yet due certificate must be reasonably acceptable to Buyer, in Tenant's standard form, and payable which are apportioned hereunder), (ii) mechanic’s liensa subordination, non-disturbance and attornment agreement (iii"SNDA"), in form and substance reasonably acceptable to Buyer, for the benefit of Wachovia Bank, National Association, both executed by Tenant under the Lease;
(d) survey issues (which shall the deposit with Escrow Agent of an executed standard title affidavit of Seller and such other documentation as may be replaced reasonably required by a “reading” Escrow Agent to allow for the deletion of the Survey and an mechanics' lien exception only for “shortages in area”), from the Owner's Policy;
(ive) leases and parties in possession (which shall be replaced by the deposit with Escrow Agent of a reference letter from Seller to “tenants Tenant requesting that future rent under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option Lease be paid to purchase all or any part Buyer;
(f) delivery of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements SEC Filing Information (as hereinafter defined) and the SEC Filings Letter (as hereinafter defined) by Seller to Buyer prior to XXX; and
(g) delivery to Buyer of originals of the Lease. If the foregoing conditions have not been satisfied by the specified date or XXX as the case may be, then Buyer shall have the right, at Buyer's sole option, by giving written notice to Seller and Escrow Agent, to cancel this Agreement, whereupon the Xxxxxxx Money Deposit plus interest shall be paid immediately by Escrow Agent to Buyer and, except as otherwise provided in this Agreement, neither of the Parties shall have any further liability or obligation under this Agreement. Buyer's acceptance of the estoppel certificate or the SNDA referenced in subsection 12(c) above shall be deemed given unless Buyer shall, within five (5) business days after receipt of said certificate or SNDA (as the case may be), insuring give written notice to Seller identifying the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end objectionable aspect of the Inspection Period and certificate or SNDA. In the Title Insurer has agreed event of any such objection by Buyer to issue in the Title Commitment by the end of the Inspection Period. Seller said certificate or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liabilitySNDA, Buyer Endorsements. The Title Policy may be delivered after shall use reasonable good faith efforts to directly and promptly resolve the Closing if at the Closing the Title Insurer issues a currently effectiveobjection with Tenant, duly executed “marked-up” Title Commitment and irrevocably commits Seller agrees to reasonably cooperate with Buyer in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateconnection with Buyer's direct negotiations with Tenant.
Appears in 1 contract
Samples: Purchase Agreement (Cole Credit Property Trust II Inc)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation obligations to close escrow and complete the purchase of the Partnership Interests or otherwise to perform any obligation provided in Property under this Agreement shall be conditioned upon are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration Seller’s deposit with Escrow Agent, for delivery to Buyer at Closing, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On or before Seller’s delivery to Buyer of the respective dates estoppel certificate as provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Section 10 above;
(c) The Title Insurer shall deliver Seller’s representations and warranties being true and correct, and Seller not being in breach or default of any obligation of Seller under this Agreement;
(d) Seller’s deposit with Escrow Agent of (i) Escrow Agent’s customary form of “Owner’s Affidavit” and (ii) such additional affidavits, undertakings or other documents as may be reasonably required by Escrow Agent to Buyer at allow for the Closing at Buyerdeletion of any mechanics’ lien exceptions and other standard exceptions from the Owner’s sole expense an endorsement Policy;
(e) Escrow Agent’s irrevocable commitment to issue the Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring Price in the Partnership as owner of fee simple title form approved by Buyer pursuant to the Property subject only terms of Section 6;
(f) Seller’s deposit with Escrow Agent of a letter from Seller to Tenant, complying with the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end notice requirements of the Inspection Period Lease and in form reasonably satisfactory to Buyer, directing that future rent under the Title Insurer has agreed Lease be paid to issue in the Title Commitment by the end Buyer;
(g) Seller’s delivery to Buyer at Closing of the Inspection Period. Seller or the Management Company original, fully-executed Lease (to the extent permitted in the possession of Seller or Seller’s agents) and, if Seller is not the original landlord under the Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under the Lease; and
(h) Seller’s delivery to Buyer of all Warranties, Permits, and Property Documents, if any, in the possession of Seller (including without limitation any warranties covering the roof or any other part of the Building); any Intangibles capable of physical delivery; and any non-proprietary leasing and property manuals, files and records applicable to or useful in connection with the continued operation, leasing and maintenance of the Property. Seller will use commercially reasonable efforts to satisfy those conditions that require Seller’s action or are otherwise within Seller’s control. If the foregoing conditions have not been satisfied by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the scheduled Closing Date, then Buyer will have the right, at Buyer’s sole option and without limiting any other right or remedy of Buyer, to extend Closing for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions, by giving written notice of such extension to Seller and Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT III), Inc.)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration deposit by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to original Transfer Documents du1y executed by Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.;
(b) On the issuance of the Owner’s Policy (or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement written commitment therefor) subject only to be performed those matters approved or deemed approved by Seller Buyer pursuant to Section 6 of this Agreement.;
(c) The Title Insurer shall deliver the delivery by Seller to Buyer at XXX of all security deposits and pre- paid/abated rents under the Closing Lease, if any, in the form of a credit in favor of Buyer against the Purchase Price;
(d) the deposit by Seller with Escrow Agent (for delivery to Buyer at XXX) not later than ten (10) business days prior to XXX of an original estoppel certificate, in a form reasonably acceptable to Buyer, dated not more than thirty (30) days prior to XXX, executed by Tenant and naming Buyer (or its designee) and such lender of which Buyer provides written notice to Seller pursuant to the notice provisions hereof (“Lender”) as addressees and (x) verifying the basic facts of the Lease (term, rental, expiration date, options, if any exist), (y) confirming that there are no defaults by the landlord under the Lease, no unperformed or “punchlist” construction items and no unpaid tenant improvement allowances or leasing commissions, (ii) a subordination, non-disturbance and attornment agreement executed by Tenant, in form and substance reasonably acceptable to Tenant, for the benefit of Lender, and (iii) an original estoppel certificate executed by all other parties (“Counter Parties”) to any applicable reciprocal easement agreement or declaration of covenants, conditions and/or restrictions (the “REA’s”) and addressed or certified to Buyer and Lender stating that such instrument is in full force and effect and is not modified (except as disclosed in such estoppel certificate) and, to the actual knowledge of the party giving the estoppel, the other party or parties thereto is/are not in default under the applicable instrument and all amounts, if any, owing under the applicable agreement have been paid in full; provided that if Counter Parties demand payment of any fees or expenses (including attorney’s fees) in connection with the negotiation and preparation of an estoppel certificate in connection with any REA, Buyer shall bear the cost of such fees and costs;
(e) the deposit with Escrow Agent of an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of any mechanics’ lien exception from the Owner’s Policy and any Gap affidavits or undertakings required by the Title Company;
(f) the deposit with Escrow Agent, for delivery to Buyer at XXX, of a letter from Seller to Tenant requesting that future rent under the Lease be paid to Buyer;
(g) there has been no “Insolvency Event” with respect to the Tenant. As used in this subsection (g), an “Insolvency Event” shall have occurred if the Tenant becomes insolvent within the meaning of the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the “Bankruptcy Code”), files or notifies Seller or any affiliate of Seller that it intends to file a petition under the Bankruptcy Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, hereinafter, an “Action”), becomes the subject of either a petition under the Bankruptcy Code or an Action, or is not generally paying its debts as the same become due;
(h) Seller shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and/or complied with by Seller prior to, or as of, the XXX; and
(i) delivery to Buyer of a copy of the fully executed Lease together with all guaranties thereof, all exhibits, amendments and other modifications thereto, and all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under the Lease. If the foregoing conditions have not been satisfied by the specified date 0r XXX as the case may be, then Buyer shall have the right, at Buyer’s sole expense an endorsement option, by giving written notice to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof Seller and in accordance with the CommitmentEscrow Agent, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (cancel this Agreement, whereupon the Xxxxxxx Money Deposit shall be paid immediately by Escrow Agent to Buyer and, except for taxes which are not yet due and payable which are apportioned hereunder)as otherwise provided in this Agreement, neither of the Parties shall have any further liability or obligation under this Agreement, or (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closingextend such specified date or XXX, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment)applicable, issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the for such amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements time as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed deems reasonably necessary to issue in the Title Commitment by the end of the Inspection Period. allow Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in satisfy such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateconditions.
Appears in 1 contract
Samples: Purchase Agreement (Cole Credit Property Trust Iv, Inc.)
Buyer’s Conditions Precedent. In addition to the condition set forth in Section 9.2 hereof, Buyer’s obligation to purchase consummate the Partnership Interests transactions contemplated by this Agreement, including, without limitation, to accept the Subject Assets from Sellers and to pay the Purchase Price in accordance with Article III of this Agreement, is subject to fulfillment on or otherwise to perform any obligation provided in this Agreement shall be conditioned upon before the fulfillment Closing Date, of each the following conditions precedent:
(a) On or before all Governmental Approvals that are required to be obtained in connection with the expiration execution, delivery and performance of this Agreement and the Inspection Periodrelated documents have been obtained and are in effect at Closing, Buyer including, without limitation, that, if applicable, the waiting period under the HSR Act shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, expired or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition early termination shall be deemed to have been satisfied without further notice.granted;
(b) On or before all consents, waivers and approvals from all Governmental Authorities, third parties and such other entities, as necessary for the respective dates provided for herein, Seller consummation of the Transaction shall have, in a timely fashion, substantially performed each have been obtained and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Buyer shall have received copies thereof;
(c) The Title Insurer Sellers shall deliver have performed and complied in all respects with all obligations and agreements required in this Agreement to be performed or complied with by it prior to the Closing Date, including, without limitation, the transfer, conveyance, assignment and delivery to Buyer at of the Subject Assets free and clear of all Liens (other than Permitted Exceptions);
(d) Sellers’ representations and warranties in Article VI of this Agreement that are qualified as to materiality or by the term “Material Adverse Effect” shall be true and correct in all respects as of the Closing and any such representations and warranties that are not so qualified shall be true and correct in all material respects as of the Closing as though made at Buyer’s sole expense an endorsement and as of the Closing (or if made as of a specified date, only as of such date);
(e) Sellers have completed all deliveries they are required to Owner’s Policy make under Section 4.1;
(f) there shall not have occurred since the date hereof and be continuing as of Title Insurance with respect the Closing Date any Material Adverse Effect;
(g) there shall not be in effect any Order by a Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(h) the Scheduling Order shall have been entered by the Bankruptcy Court in a form and substance reasonably acceptable to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof Buyer and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to such Order shall be a Final Order; and
(i) taxes Sellers have complied in all material respects with their obligations under paragraphs (except for taxes which are not yet due and payable which are apportioned hereunder), a) through (iik) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part Section 9.1 of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datethis Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cal Dive International Inc)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On the delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the executed original Transfer Documents;
(b) the issuance of the Owner’s Policy (or before a written commitment therefor) subject only to those matters approved or deemed approved by Buyer pursuant to this Agreement;
(c) the delivery by Seller to Buyer at XXX of all abatements in rent under the Lease resulting from a casualty or condemnation affecting the Property or pre-paid rents (pro-rated to the date of XXX as provided herein), if any, in the form of a credit in favor of Buyer against the Purchase Price;
(d) the deposit by Seller with Buyer not later than three (3) days prior to XXX of (i) an original estoppel certificate, consistent with the form required to be provided by Tenant pursuant to the Lease, dated not more than thirty (30) days prior to XXX, stating, subject to Section 40 below, that there are no unperformed or “punchlist” construction items, no unpaid tenant improvement allowances or leasing commissions, and otherwise reasonably acceptable to Buyer, executed by Tenant and naming Buyer (or its designee) and any lender of which Buyer provides written notice to Seller pursuant to the notice provisions hereof (“Lender”) as addressees, and (ii) a subordination, non-disturbance and attornment agreement executed by Tenant, consistent with the form required to be provided by Tenant pursuant to the Lease and dated not more than thirty (30) days prior to XXX;
(e) intentionally omitted;
(f) the deposit with Escrow Agent of an executed final lien waiver by the general contractor, an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics’ lien exception from the Owner’s Policy;
(g) the delivery by Seller to Buyer of the final Certificate of Occupancy for the Improvements;
(h) the delivery by Seller to Buyer of an architect’s affidavit in the form attached hereto as Exhibit F;
(i) intentionally omitted;
(j) the deposit with Escrow Agent of a letter from Seller to Tenant notifying the Tenant of the assignment of the Lease and requesting that future rent under the Lease be paid to Buyer;
(k) to the extent the Property is subject to zoning regulations, the receipt by Buyer prior to the expiration of the Inspection PeriodStudy Period of evidence reasonably satisfactory to Buyer that the Property is properly zoned for its intended use and that the Property is in full compliance with all such zoning regulations, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition which shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance expense;
(l) there has been no “Insolvency Event” with respect to the Partnership’s ownership Tenant. As used in this subsection (l), an “Insolvency Event” shall have occurred if the Tenant becomes insolvent within the meaning of the Real Property as contemplated under Section 2.01 hereof and in accordance with the CommitmentUnited States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as it may have been modified as contemplated by this Agreement amended (the “Title PolicyBankruptcy Code”), with extended coverage files or notifies Seller or any affiliate of Seller that it intends to file a petition under the Bankruptcy Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (i.e. with General Standard Exceptions 1 through 5 deletedcollectively, hereinafter, an “Action”), becomes the subject of either a petition under the Bankruptcy Code or an Action, or is not generally paying its debts as the same become due;
(m) Tenant has accepted possession of the Property and is contractually obligated to pay, and has commenced payment of, full rent pursuant to the Lease;
(n) delivery to Buyer of the original, fully-executed Lease, and a copy of all guaranties thereof, all exhibits, amendments and other modifications thereto, if any; and
(o) delivery to Buyer of originals of the Contracts, Warranties and Permits, if any, in the possession of Seller or Seller’s agents, including, without limitation, any warranties covering the roof or any other part of the Improvements, and any correspondence with respect thereto, together with such non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance of the Property. If the foregoing conditions have not been satisfied by the specified date or XXX as the case may be, then Buyer shall have the right, at Buyer’s sole option, by giving written notice to Seller and Escrow Agent, to (i) taxes (cancel this Agreement, whereupon the Xxxxxxx Money Deposit shall be paid immediately by Escrow Agent to Buyer and, except for taxes which are not yet due and payable which are apportioned hereunder)as otherwise provided in this Agreement, neither of the Parties shall have any further liability or obligation under this Agreement, or (ii) mechanic’s liensextend such specified date or XXX, (iii) survey issues (which shall be replaced by as applicable, for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions. If Buyer elects to terminate this Agreement pursuant to this Section 12, it shall, upon the request of Seller, execute a “reading” quit claim deed of the Survey Property to Seller, or execute such other documentation as reasonably requested by Seller to terminate this Agreement and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference transfer to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without Seller any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, equitable interest in the amount Property that Buyer may have by reason of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsementsthis Agreement. The Title Policy may be delivered after requirement to execute such documentation shall survive the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form termination of the “marked-up” Title Commitment promptly after the Closing Datethis Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Cole Corporate Income Trust, Inc.)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests Shares and to consummate the transactions set forth herein is expressly subject to the satisfaction, on or otherwise prior to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment Closing Date, of all of the following conditions precedentconditions, compliance with which or the occurrence of which may be waived in whole or in part in writing by Buyer:
(a) On or before the expiration All representations and warranties of the Inspection Period, Buyer Stockholders and the Company included in this Agreement and all schedules hereto prepared or provided by the Stockholders and the Company shall have inspected be true and approved, in Buyer’s sole discretion, all aspects correct as of date of this Agreement and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration as of the Inspection Period, written notice Closing Date as if made on and as of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further noticedates.
(b) On The Stockholders and the Company shall have performed or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each satisfied all covenants and every covenant, undertaking and agreement obligations required by this Agreement to be performed or satisfied by Seller pursuant the Stockholders on or prior to this Agreementthe Closing Date.
(c) The Title Insurer All consents and approvals required in connection with the transactions set forth herein shall deliver have been obtained, including, without limitation, the Gaming Approvals.
(d) On or prior to the Closing Date, the Company shall have executed and furnished to Buyer the certificate attached hereto as Exhibit E, dated as of the Closing Date, signed and verified by the president and certified by the secretary of the Company, to the effect that all representations and warranties and any and all schedules and exhibits contained in this Agreement, remain in all material respects true and correct as of the Closing Date, and that the Company has performed and satisfied all covenants and conditions required to be performed by it.
(e) The Company shall have furnished to Buyer the opinion of its counsel, dated as of the Closing Date, in form and substance reasonably satisfactory to Buyer and its counsel, attached hereto as Exhibit F.
(f) No action or proceeding shall have been instituted or threatened prior to or at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy Date before any court or other governmental body, or instituted or threatened by any public authority, the result of Title Insurance which could prevent or make illegal the consummation of the transactions contemplated hereunder or which would materially affect the Business, assets, properties or prospects of the Company taken as a whole.
(g) Buyer and IGT shall have entered into a binding agreement with respect to the PartnershipBuyer’s ownership assumption of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateAssumed Liabilities.
Appears in 1 contract
Buyer’s Conditions Precedent. BuyerThe following shall be conditions precedent to Xxxxx’s obligation to purchase close, in addition to all other conditions precedent set forth in this Agreement.
i. The City Council of the Partnership Interests City of Anaheim, acting as the legislative body of Buyer, shall have approved this Agreement and authorized its designated representative to execute on behalf of Buyer all documents necessary to close.
ii. Seller shall have timely delivered to Escrow Agent all of the items to be delivered by Seller pursuant to Paragraph 7.A hereof. Seller shall have timely delivered to Buyer all of the items to be delivered by Seller pursuant to Paragraph 7.B hereof.
iii. The Building shall be vacant.
iv. If, in the course of performing the Buyer’s Due Diligence contamination was discovered, Xxxxx has determined that the cost of remediation is reasonable and Buyer and Seller have agreed on an adjustment of the Purchase Price mutually acceptable to the parties, or otherwise alternatively, Seller has assumed financial responsibility for the RAP in a manner acceptable to perform any obligation Buyer as provided in Paragraph 5.D.
v. As of the Closing, Seller shall have timely performed all of the material obligations required by the terms of this Agreement to be performed by Seller.
vi. Title Company is irrevocably committed to issue the Title Policy.
vii. All representations and warranties made by Seller to Buyer in this Agreement shall be conditioned upon the fulfillment true and correct as of the following Closing.
viii. The Real Property (or portion thereof) shall not be damaged or destroyed by casualty or otherwise as of the Closing. Unless all of Buyer’s conditions precedent:
precedent contained in this Agreement are satisfied within the time period specified, or if no time period is specified, prior to or at Closing, Buyer, at its election, may, either (a) On or before extend the expiration of date for Closing until such conditions are satisfied, but no longer than thirty (30) days beyond the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoeveroriginal Closing Date, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to terminate this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.or
Appears in 1 contract
Samples: Agreement for Sale of Property
Buyer’s Conditions Precedent. Buyer’s obligation The obligations of Buyer at Closing are subject to purchase the Partnership Interests satisfaction or otherwise to perform any obligation provided waiver (except that the requirement that the Stockholder Approval include the vote of a Majority of the Disinterested in favor of the adoption of this Agreement shall and the transactions contemplated hereby may not be conditioned upon the fulfillment waived by Buyer or Earthstone) at or prior to Closing of the following conditions precedent:
(a1) On All representations and warranties of Seller contained in this Agreement (including Section 15.20(a)) shall be true and correct at and as of Closing in accordance with their terms as if such representations and warranties were remade at and as of Closing (except to the extent such representations and warranties are made as of a specified date, in which case such representations and warranties shall be true and correct as of such specified date), except where the failure to be so true and correct (without giving effect to any limitation or before qualification as to materiality or Material Adverse Effect), individually or in the expiration of the Inspection Periodaggregate has not had and would not reasonably be expected to result in a Material Adverse Effect, Buyer (2) Seller shall have inspected performed and approvedsatisfied all covenants and agreements required by this Agreement to be performed and satisfied by Seller at or prior to Closing in all material respects, in Buyerand (3) Seller shall have delivered the Seller’s sole discretion, all aspects and matters relating Certificate to Buyer confirming the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.foregoing;
(b) On other than an order affecting only a portion of the Assets that is treated as a Casualty Loss, no order shall have been entered by any court or before Governmental Authority having jurisdiction over the respective dates provided for herein, Seller shall have, Parties or the subject matter of this Agreement that restrains or prohibits the Transaction and that remains in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.effect at the time of Closing;
(c) The in each case subject to the Title Insurer Threshold, the Aggregate Deductible, and the Environmental Defect Threshold, the aggregate amount of (1) the sum of all Title Defect Amounts for actual Title Defects, less the sum of all Title Benefit Amounts for actual Title Benefits, as determined under Article IV, plus (2) the sum of all Remediation Costs for actual Environmental Defects, shall deliver not exceed an amount equal to Buyer at 10% of the Closing at Buyer’s sole expense an endorsement to Owner’s Policy Unadjusted Base Purchase Price;
(d) Earthstone shall have received Stockholder Approval;
(e) the aggregate amount of Title Insurance the Allocated Value of the affected Assets with respect to the Partnership’s ownership any preferential rights to purchase any portion of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which Assets that are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages set forth in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable Schedule 6.8 as of the date and time Execution Date, regardless of whether such preferential rights to purchase are exercised or unexercised, shall not exceed 25% of the issuance Unadjusted Base Purchase Price; and
(f) Seller shall be ready, willing, and able to perform each of the Title Policy, actions and deliver those deliverables specified in the amount of the Purchase Price, containing Buyer’s Endorsements (Section 12.3 as hereinafter defined), insuring the Partnership as owner of fee simple title required to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if by or on behalf of Seller at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateClosing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Earthstone Energy Inc)
Buyer’s Conditions Precedent. The obligations of Buyer at the Closing are subject, at the option of Buyer’s obligation , to purchase the Partnership Interests satisfaction or otherwise waiver at or prior to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment Closing of the following conditions precedent:
A. All representations and warranties of Seller contained in this Agreement are true in all material respects (aother than those that are qualified by materiality pursuant to their terms, which shall be true in all respects) On or before the expiration at and as of the Inspection Period, Buyer shall have inspected Closing in accordance with their terms as if such representations were remade at and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration as of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been Closing. Seller has performed and satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each all covenants and every covenant, undertaking and agreement agreements required by this Agreement to be performed and satisfied by Seller pursuant at or prior to this Agreement.
(c) The Title Insurer the Closing in all material respects and Seller shall deliver a certificate to Buyer confirming the foregoing;
B. No order, decree, ruling or other legal process has been entered by any court or governmental agency having jurisdiction over the Parties or the subject matter of this Agreement that seeks to enjoin or prohibit this Transaction and that remains in effect at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy time of Title Insurance with respect to the Partnership’s ownership Closing;
C. The sum of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due all Environmental Defect Values and payable which are apportioned hereunder)Title Defect Values that have been agreed upon by the Parties, (ii) mechanic’s liensthe Title Defect Values asserted by Buyer with respect to all Title Defects that Seller has elected to cure after Closing pursuant to Section 4.2 B.3 or which would be subject to arbitration pursuant to Section 4.3 upon Closing, (iii) survey issues the Environmental Defect Values asserted by Buyer (which shall be replaced by a “reading” or, if lesser, the Allocated Value of the Survey Affected Assets) with respect to all Environmental Defects which would be subject to arbitration pursuant to Section 5.3 upon Closing and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall the Allocated Values of all Assets that would be replaced by a reference placed into escrow at Closing pursuant to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount 4.6 A does not exceed 25% of the Purchase Price; and
D. Receipt by Buyer of a recordable release of any deeds of trust, containing Buyer’s Endorsements (as hereinafter defined)mortgages, insuring financing statements, fixture filings, security agreements or other similar encumbrances issued for the Partnership as owner benefit of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or its’ affiliates’ lenders (including those under the Management Company (Credit Agreement) affecting the Assets in form reasonably acceptable to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateBuyer.
Appears in 1 contract
Buyer’s Conditions Precedent. Buyer’s 's obligation to purchase accept Delivery of the Partnership Interests or otherwise to perform any obligation provided in this Agreement Aircraft shall be conditioned upon subject to the fulfillment satisfaction of the following conditions precedent:
(a) A. On or before the expiration first Delivery Date, Seller shall have duly authorized, executed, and delivered this Agreement;
B. On or before each Delivery Date, Seller will provide to Buyer a written opinion of its counsel (which may be Seller's in-house counsel) addressed to Buyer stating that Seller is validly organized and existing and in good standing under the laws of the Inspection PeriodState of Delaware; that this Agreement, Buyer shall the Warranty Xxxx of Sale with respect to the Aircraft and any other documents and certificates delivered by Seller in connection with such Delivery (the "SELLER AGREEMENTS") have inspected been validly executed by Seller and approvedthat Seller's obligations under the Seller Agreements are binding, valid and enforceable in accordance with their terms; that neither the Seller Agreements, nor performance by Seller of any of its obligations hereunder or thereunder violate any provisions of existing law, the Certificate of Incorporation of Seller as amended, or its By-Laws or any agreement, indenture, note or other instrument which is binding upon Seller of which such counsel has knowledge; and that no action by any governmental bureau, agency or commission is requisite to the validity or enforceability, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver regard to Seller, on of the Seller Agreements. It is understood that any such opinions of such counsel may state that the enforceability of any obligation referred to therein is subject to and may be limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) public policy considerations;
C. On or before each Delivery Date, Seller will tender the expiration of the Inspection PeriodAircraft to be delivered on such Delivery Date for Delivery to Buyer, written notice of the failure of in the condition set forth in Section 6.02 4.4 hereof, then together with the Aircraft Documentation as described in Exhibit A and A-1 hereto with respect to such condition shall Aircraft, and pursuant to the inspection and Delivery terms and conditions set forth in Sections 4.4 and 4.6, respectively;
D. On or before each Delivery Date, Seller will tender to Buyer legal and beneficial title to the Aircraft and Engines to be deemed delivered on such Delivery Date, free and clear of any mortgages, pledges, security interests, liens, claims, encumbrances or other charges or rights of others of any kind (hereinafter, collectively "LIENS"), other than Liens arising as a result of or attributable to have been satisfied without further notice.
(a) Buyer, or (b) Seller's retention of the data plates for each of the Airframes of the Aircraft, or (c) the restrictions on use and transfer of the Aircraft pursuant to Article XI hereof;
E. On or before the respective dates provided for hereineach Delivery Date, Seller shall havewill deliver to Buyer a Warranty Xxxx of Sale for the Aircraft (including, in a timely fashionwithout limitation, substantially performed each and every covenantEngine installed thereon), undertaking and agreement to be performed by delivered on such Delivery Date;
F. On or before each Delivery Date, Seller pursuant will provide to this Agreement.
Buyer a written opinion of its FAA counsel, the law firm of Xxxxx Xxxxx & Xxxxxx of Oklahoma City, Oklahoma, or any other law firm as Seller may designate, addressed to Buyer stating that Seller is the FAA-registered owner of the Aircraft to be delivered on such Delivery Date and that such Aircraft (and/or any Engine or Engines) is free and clear of all Liens filed with the FAA, other than Liens arising as a result of or attributable to (a) Buyer, or (b) Seller's retention of the data plates for each of the Airframes, or (c) the restrictions on use and transfer of the Aircraft pursuant to Article XI hereof;
G. Seller shall not be in default in any material respect in the performance or observance of any term or obligation set forth herein; and
H. The Title Insurer shall deliver to Buyer at applicable waiting period specified under the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance Xxxx-Xxxxx Act with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as transactions contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right have lapsed or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datebeen terminated.
Appears in 1 contract
Samples: Aircraft Purchase and Sale Agreement (Willis Lease Finance Corp)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, Owner’s Policy (or a written commitment therefor) in the amount of the Purchase PricePrice (indicating the irrevocable commitment of the Title Company to issue an ALTA Owner's Policy 2006 without standard exceptions not attributable to acts of Buyer, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property but subject only to the Permitted Exceptions), subject to the satisfaction of all requirements in the title commitment, including without limitation, the delivery by Seller and Buyer of all the Transfer Documents, the payment by Buyer to Seller of the Purchase Price and the payment by Buyer or Seller of all amounts owed to the Title Company and all other amounts specified in this Agreement to be paid by Buyer or Seller;
(c) the deposit by Seller with Buyer not later than two (2) business days prior to XXX of:
(i) an original estoppel certificate, in the form and substance as required by Section 33 of the Lease and attached thereto as Exhibit F;
(ii) a subordination, non-disturbance and attornment agreement executed by Tenant, in form and substance as required by Section 30 of the Lease and attached thereto as Exhibit G, for the benefit of Lender;
(e) [intentionally omitted];
(f) the deposit with Escrow Agent of an executed affidavit of Seller or, if Seller is a single-asset entity, of Seller’s principals or parent entity, and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics’ lien exception from the Owner’s Policy;
(g) the deposit with Escrow Agent of a letter from Seller to Tenant requesting that future rent under the Lease be paid to Buyer;
(h) there has been no “Insolvency Event” with respect to the Tenant. As used hereinin this subsection (h), the term an “Buyer EndorsementsInsolvency Event” shall mean have occurred if the Tenant becomes insolvent within the meaning of the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the “Bankruptcy Code”), files or notifies Seller or any affiliate of Seller that it intends to file a petition under the Bankruptcy Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, hereinafter, an “Action”), becomes the subject of either a petition under the Bankruptcy Code or an Action, or is not generally paying its debts as the same become due;
(i) delivery to Buyer of the original, if in the possession of Seller and then otherwise a copy, fully-executed Lease, and a copy of all guaranties thereof, all exhibits, amendments and other modifications thereto, and, if Seller is not the original landlord under the Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under the Lease. Buyer hereby acknowledges its receipt of a copy of the Lease with all exhibits and amendments which Seller hereby represents as being a full and complete copy of the same; and
(j) delivery to Buyer of originals, if in the possession of Seller and then otherwise a copy, of the Contracts, Warranties and Permits, if any, in the possession of Seller or Seller’s agents, including, without limitation, any warranties covering the roof or any other part of the Improvements, and any correspondence with respect thereto, together with such endorsements non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance of the Property. Buyer hereby acknowledges its receipt of the Contracts, Warranties and Permits which Seller hereby represents as being full and complete copies of the same. If the foregoing conditions have not been satisfied by the specified date or XXX as the case may be, then Buyer shall have the right, at Buyer’s sole option, by giving written notice to Seller and Escrow Agent, to (i) cancel this Agreement, whereupon the Xxxxxxx Money Deposit shall be paid immediately by Escrow Agent to Buyer and, except as otherwise provided in this Agreement, neither of the Parties shall have any further liability or obligation under this Agreement, (ii) extend such specified date or XXX, as applicable, for such amount of time as Buyer has requested by the end of the Inspection Period deems reasonably necessary to allow Seller to satisfy such conditions or (iii) waive such conditions and the Title Insurer has agreed proceed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateXXX.
Appears in 1 contract
Samples: Purchase Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Buyer’s Conditions Precedent. Buyer’s obligation In addition to purchase the Partnership Interests or otherwise to perform any obligation provided all other conditions precedent set forth in this Agreement shall be conditioned upon Agreement, Buyer's obligations to close escrow and complete the fulfillment purchase of the following conditions precedentProperty under this Agreement are expressly subject to the following:
(a) On or before the expiration Seller's deposit with Escrow Agent, for delivery to Buyer at Closing, of the Inspection Periodexecuted original Transfer Documents; Purchase and Sale Agreement Xxxxxx Marketplace, Buyer shall have inspected and approvedLawton, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
Oklahoma (b) On or before Seller's delivery to Buyer of the respective dates estoppel certificates as provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.Section 10 above;
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy Seller's deposit with Escrow Agent of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due Escrow Agent's customary form of "Owner's Affidavit" and payable which are apportioned hereunder), (ii) mechanic’s lienssuch additional affidavits, undertakings or other documents as may be reasonably required by Escrow Agent to allow for the deletion of any mechanics' lien exceptions and other standard exceptions from the Owner's Policy;
(iiid) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase Provided that Buyer has satisfied all or any part of the Property”) and (v) items raised after the effective date requirements of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of Company for the issuance of the Title Owner’s Policy, Escrow Agent’s irrevocable commitment to issue the Owner’s Policy in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring Price in the Partnership as owner of fee simple title form approved by Buyer prior to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end expiration of the Inspection Period and Study Period;
(e) Seller's deposit with Escrow Agent of a letter from Seller to each Tenant, complying with the Title Insurer has agreed to issue in the Title Commitment by the end notice requirements of the Inspection Period. Seller or the Management Company applicable Lease and in form attached hereto as Exhibit H, directing that future rent under such Lease be paid to Buyer; and
(f) Seller's delivery to Buyer at Closing of a fully-executed original of each Lease (to the extent permitted in the possession of Seller or Seller's agents). If the foregoing conditions have not been satisfied by the Title Insurerscheduled Closing Date, then unless such failure is within the sole and exclusive control of Seller (in which event Buyer may proceed as provided in Section 21(a)) Buyer will have the right to elect, as Buyer's sole remedy, to terminate this Agreement by providing written notice to Seller and Escrow Agent, whereupon Buyer shall execute at promptly return all hard copies and delete all electronic copies of Seller's Diligence Materials, the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance Deposit will immediately be paid by Escrow Agent to Buyer, and neither of the Title Policy andParties will have any further liability or obligation under this Agreement except for any Surviving Obligations. Seller will additionally deliver to Buyer, provided Seller shall not incur any additional cost at or liabilitypromptly following Closing, Buyer Endorsements. The Title Policy may be delivered after the Closing all Warranties, Permits, and Property Documents, if at the Closing the Title Insurer issues a currently effectiveany, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form possession of the “marked-up” Title Commitment promptly after the Closing DateSeller or Seller's agents; and any Intangibles capable of physical delivery.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Credit Property Trust V, Inc.)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow with respect to the fulfillment of Property are expressly subject to the following conditions precedentfollowing:
(a) On or before the expiration delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On the issuance of the Owner’s Policies (or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement written commitments therefor) subject only to be performed those matters approved or deemed approved by Seller Buyer pursuant to this Agreement.;
(c) The Title Insurer shall deliver the delivery by Seller to Buyer at XXX of all security deposits and pre-paid rents under each of the Closing Leases, if any, in the form of a credit in favor of Buyer against the Additional Funds;
(d) the deposit with Escrow Agent of an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics’ lien exception from each of the Owner’s Policies;
(e) the deposit with Escrow Agent of a letter from Seller to Tenant requesting that future rent under each of the Leases be paid to Buyer;
(f) Seller shall request a Subordination, Non-Disturbance and Attornment Agreement with respect to each Property (each, a “SNDA” and, collectively, the “SNDAs”) from Tenant in Tenant’s standard form at the time it requests the estoppels, but the parties acknowledge that receipt of such SNDAs shall not be a condition to XXX;
(g) delivery to Buyer of fully-executed originals of the Leases (or, if Seller does not have originals of any Lease, then a copy of such Lease); and
(h) Delivery of copies of all of Seller’s interest, to the extent transferable, in all permits and licenses (collectively, the “Permits”), warranties (specifically including, without limitation, any warranty related to the roof of any Building), contractual rights and intangibles (including rights to the name of the Improvements as well as architectural/engineering plans) with respect to the operation, maintenance, repair or improvement of any Property (collectively, the “Contracts”), which Seller has in its possession. If the foregoing conditions have not been satisfied as to any Property by the specified date or XXX as the case may be, then Buyer shall have the right, at Buyer’s sole expense an endorsement option, by giving written notice to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof Seller and in accordance with the CommitmentEscrow Agent, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (cancel this Agreement, whereupon the Xxxxxxx Money Deposit plus interest shall be paid immediately by Escrow Agent to Buyer and, except for taxes which are not yet due and payable which are apportioned hereunder)as otherwise provided in this Agreement, neither of the Parties shall have any further liability or obligation under this Agreement, or (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closingextend such specified date or XXX, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment)applicable, issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the for such amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements time as Buyer has requested by the end of the Inspection Period and the Title Insurer has deems reasonably necessary to allow Seller to satisfy such conditions not to exceed fifteen (15) days unless agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing DateSeller.
Appears in 1 contract
Samples: Master Purchase Agreement (Cole Credit Property Trust Iv, Inc.)
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise 's obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On the delivery by Seller to Escrow Agent, for delivery to Buyer at COE, of the executed original Transfer Documents;
(b) txx issuance of the Owner's Policy (or before a written commitment therefor) subject only to those matters approved or deemed approved by Buyer pursuant to this Agreement;
(c) the delivery by Seller to Buyer at COE of all security deposits and pre-paid/abated rents under the Leaxx, if any, in the form of a credit in favor of Buyer against the Additional Funds;
(d) the deposit by Seller with Buyer prior to expiration of the Study Period of (i) an original estoppel certificate naming Buyer (or its designee) and Wachovia Bank, National Association as addressees, which certificate must be reasonably acceptable to Buyer, in Tenant's standard form, and (ii) a subordination, non-disturbance and attornment agreement, substantially similar to the form of SNDA attached as an exhibit to the Lease, for the benefit of Wachovia Bank, National Association, both executed by Tenant under the Lease;
(e) the deposit with Escrow Agent and Buyer prior to the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, Study Period of an executed waiver by Tenant of any nature whatsoeverright of first refusal under the Lease;
(f) the deposit with Escrow Agent of an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics' lien exception from the Owner's Policy;
(g) the delivery by Seller to Buyer of the Certificate of Occupancy for the Improvements, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to a copy thereof if the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.original is unavailable;
(bh) On or before the respective dates provided for herein, deposit with Escrow Agent of a letter from Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to Tenant requesting that future rent under the Lease be performed by Seller pursuant paid to this Agreement.Buyer;
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” delivery of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements SEC Filing Information (as hereinafter defined), insuring ) and the Partnership SEC Filings Letter (as owner hereinafter defined) by Seller to Buyer not less than five (5) days prior to COE; and
(j) delivery to Buyer of fee simple title to originals of the Property subject only to the Permitted Exceptions. As used hereinLeasx, the term “Buyer Endorsements” shall mean Contracts and Permits, if any, in the possession of Seller or Seller's agents, and any correspondence with respect thereto, together with such endorsements as Buyer has requested non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance of the Property. If the foregoing conditions have not been satisfied by the end specified date or COE as the case may be, then Buyer shall have the right, at Buyer's xxxe option, by giving written notice to Seller and Escrow Agent, to cancel this Agreement, whereupon the Earnest Money Deposit plus interest shall be paid immediately by Escxxx Xxxnt to Buyer and, except as otherwise provided in this Agreement, neither of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller Parties shall have any further liability or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateobligation under this Agreement.
Appears in 1 contract
Samples: Assignment of Purchase Agreement (Cole Credit Property Trust II Inc)
Buyer’s Conditions Precedent. Notwithstanding anything to the contrary contained herein, Buyer’s 's obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement Property shall be expressly conditioned upon the fulfillment of each of the following conditions precedentprecedent (collectively, the "Buyer's Conditions Precedent") on or before the Closing Date, the failure of which shall not (except for paragraphs (a)(but not to the extent provided in Section 3.4), (d) and/or (g) of this Section, or as otherwise provided elsewhere in the Agreement), constitute a default by Seller:
(a) On or before the expiration Closing Date, Seller's title to the Land and Buildings shall be free and clear of all mortgages, liens, encumbrances, easements, leases, conditions and other matters affecting title other than the Las Vegas Assumable Debt and the Permitted Exceptions and the Title Company shall have agreed to issue the Owner's Policies insuring the Buyer's title subject only to the Las Vegas Assumable Debt and the Permitted Exceptions;
(b) Buyer shall have received tenant estoppel certificates substantially in the form set forth on Exhibit F and reasonably acceptable to Buyer, from Tenants leasing at least seventy-five percent (75%) of the Inspection Periodleased and occupied square footage of the Buildings, which shall include, at a minimum, estoppel certificates from eighty-five percent (85%) of the Tenants listed on Exhibit G hereto;
(c) Buyer shall have received (i) if there is a third party property manager, a final lien waiver from the property manager for each portion of the Property and (ii) a termination of such management agreement effective as of the Closing Date;
(d) As of the Closing Date, Seller shall not have commenced a voluntary case seeking an adjudication of bankruptcy, insolvency or reorganization or relief from debtors, nor shall any involuntary case have been commenced against Seller seeking an adjudication of bankruptcy, insolvency or reorganization or relief from debtors, nor shall Seller have consented to the appointment of a receiver of it or for all or any substantial part of its property, nor shall a court of competent jurisdiction have entered an order or decree that is for relief against Seller in an involuntary case or which appoints a receiver of Seller for all or any substantial part of its property;
(e) On the Closing Date, no action or proceeding shall have been instituted before any court or governmental authority by any governmental authority or third party that seeks to restrain or prohibit, or to obtain damages in respect of, or which is related to or arises out of, this Agreement, the consummation of the transactions contemplated herein, or any obligations of Seller binding on the Property;
(f) Seller shall have delivered estoppel certificates from such parties to ground leases, reciprocal easement, covenants, conditions and restrictions, developer's agreements and/or operating agreements affecting any portion of the Property, as Buyer shall have reasonably required;
(g) On the Closing Date, Seller shall not be in violation of any of its material covenants hereunder, and all of Seller's representations set forth herein (including, without limitation, those set forth in Article VI hereof) shall be true and correct in all material respects; and
(h) On or prior to the Closing Date, Buyer shall have inspected and approvedobtained, in on terms acceptable to Buyer’s sole discretion, all aspects and matters relating to the Propertyconsent, if required, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein the mortgagee under the Assumable Debt to permit the contrary, if Buyer fails to deliver to Seller, on or before the expiration assumption of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further noticeAssumable Debt by Buyer or its designees.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chelsea Property Group Inc)
Buyer’s Conditions Precedent. Buyer’s The obligation of Buyer to purchase close the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned transactions described herein is specifically contingent upon the fulfillment satisfaction of the following conditions precedentconditions:
(a) On or before The parties hereto obtaining and complying with all requirements of any regulatory agency as may be necessary to obtain requisite regulatory approval from any and all regulatory authorities for the transactions contemplated hereby. The obtaining of such approval shall include necessary approval and acquiescence of all applicable regulatory agencies, as well as the expiration of all applicable waiting periods in connection therewith, all in a manner satisfactory to Buyer and Buyer's counsel. Seller, on its own behalf and on behalf of the Inspection PeriodBank, waives any claim which it might have (or the Bank may have) against Buyer and releases Buyer from any liability arising from any loss or other damage suffered by Seller or Bank as a result of any regulatory examination, which examination resulted from or arguably resulted from the submissions by Buyer or the application for approval of this transaction.
b) [INTENTIONALLY LEFT BLANK]
c) The total of (i) general reserve for loan losses, (ii) specific reserves and (iii) reserves for other real estate owned shall, as of the Closing Date, be not less than Thirty Thousand Dollars ($30,000).
d) Buyer determining that all representations and warranties of Seller contained herein are true, accurate and complete as of the Closing Date. Seller shall deliver to Buyer a certificate of Seller signed by its Chief Executive Officer and President at the closing confirming that all such representations and warranties are true, accurate and complete as of such date and Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating be entitled to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer rely upon same. If Seller fails to deliver such certificate and Buyer nonetheless chooses to Sellerclose, then Buyer shall simply be deemed to have waived the condition precedent specified in this subparagraph. Buyer shall not be deemed to have waived any right of indemnification against Seller nor any right to rely on or before the expiration representations and warranties of Seller contained herein.
e) The financial condition of the Inspection PeriodBank as a whole shall not have been materially adversely affected in any way since the date of Financial Statements.
f) [INTENTIONALLY LEFT BLANK]
g) There shall be no adverse judgment, written notice restraining order, or injunction in effect in any litigation challenging the lawfulness of the transactions contemplated hereby or seeking to enjoin or restrain the consummation of this Agreement.
h) Seller shall have performed and complied with all of its respective obligations under this Agreement which are to be performed or complied with by it prior to or on the Closing Date and Seller shall have delivered all documents required to be delivered by it to Buyer at the time of Closing.
i) There shall be no material adverse development in the overall financial condition of the Bank discovered by Buyer or Buyer's representative as a result of the additional due diligence conducted by Buyer and/or Buyer's representative in accordance with the terms of Section 4 hereinabove.
j) [INTENTIONALLY LEFT BLANK] In the event Buyer determines that this transaction cannot close as a result of the failure of the condition set forth any contingency enumerated hereinabove or stated elsewhere in Section 6.02 hereofthis Agreement, then Buyer shall give written notice of same to Seller and this Agreement shall immediately thereafter terminate. In such condition event, Buyer shall be deemed entitled to a refund of the Xxxxxxx Money Deposit, neither party shall have been satisfied without any further notice.
(b) On or before liability to the respective dates provided for hereinother, Seller shall havebut in such event, in a timely fashion, substantially performed each and every covenant, undertaking and agreement Buyer agrees to be performed by Seller pursuant return to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy Bank copies of Title Insurance any material it has obtained with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right Bank or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateoperations.
Appears in 1 contract
Buyer’s Conditions Precedent. Notwithstanding anything in this Agreement to the contrary, Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement Property shall be conditioned subject to and contingent upon the fulfillment satisfaction or timely waiver by Buyer of each of the following conditions precedent:
(a) On or before the expiration Closing Date, the timely performance by Seller of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, material covenant and undertaking and agreement to be performed by Seller pursuant to this AgreementAgreement and the continued truth or accuracy as of the Closing Date of the representations and warranties of Seller made as of the Effective Date. If Seller becomes aware that any representation or warranty of Seller should be modified due to changes in circumstances or additional information which becomes available following the Effective Date, Seller shall deliver to Buyer a statement correcting such representation or warranty. Seller shall not be liable to Buyer for, or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty which results from any change that (A) occurs between the Effective Date and the Closing Date, and (B) is not prohibited under this Agreement or is beyond the reasonable control of Seller to prevent (including the discovery by Buyer or Seller of additional information prior to the Closing Date). Notwithstanding the foregoing, if the breach of such representation or warranty is materially adverse to Buyer, Buyer may treat such event as a failure of its conditions precedent and may terminate this Agreement under Section 3.3 below, or if such breach arises from a change which is a result of Seller’s breach of its obligations under this Agreement or an intentional act or omission which makes a Seller’s representation or warranty untrue, then Buyer may treat such event as a default by Seller. If Buyer proceeds to purchase the Property, it shall be deemed to have waived any claims arising out of such breach.
(b) Prior to the expiration of the Investigation Period, Buyer’s inspection and approval, in Buyer’s sole discretion, of all physical, environmental, economic and legal matters relating to the Property, all pursuant to and subject to the limitations in Section 3.4 below.
(c) The Title Insurer shall deliver Buyer’s receipt at least five (5) days prior to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy Date of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy Estoppel Certificates substantially in the form of EXHIBIT H, or with such modifications thereto as may be made by the tenant so long as the tenant has made at least the certifications required in a form of estoppel certificate attached to its Tenant Occupancy Lease, executed by Dewey, Ballantine, Xxxxxxx XxXxxxxxx, DLA Xxxxx Xxxxxxx, Xxxxxxxxx Xxxxxxx and Xxxxxx & Xxxxx (the “markedMajor Tenants”) and at least two (2) of the following tenants: Xxxxx Xxxxxxx, Greater Bay Bancorp and Wachovia Securities, LLC (the “Secondary Tenants”) and estoppels from tenants must include those from tenants (inclusive of the Major Tenants and the requisite Secondary Tenants) which, in the aggregate, lease at least seventy five percent (75%) of the leased square footage. Seller shall not be obligated to expend any funds in connection with obtaining any Estoppel Certificates and the failure of Seller to obtain any Estoppel Certificates shall not be a breach of this Agreement by Seller. In the event that Seller has been unable to obtain the Estoppel Certificates from tenants under Tenant Occupancy Leases covering at least seventy five percent (75%) of the leased area in the Property, the condition precedent set forth in this paragraph 3.1(c) relating to obtain estoppel certificates for at least seventy five percent (75%) of the leased area shall be deemed satisfied if Seller shall deliver its own certificate (“Seller’s Certificate”) to Buyer in the form of EXHIBIT H-1 with respect to those Tenant Occupancy Leases for which Seller did not obtain a tenant’s Estoppel Certificate; provided that a Seller’s Certificate may not be substituted for any Major Tenant or Secondary Tenant or for other tenants which, in the aggregate, lease more than ten percent (10%) of the leased square footage in the Property. If an Estoppel Certificate from a tenant that did not execute one previously is delivered to Buyer, then such tenant’s certificate shall replace the Seller’s Certificate to the extent they are not inconsistent, and Seller shall not have any obligations or liabilities under the Seller’s Certificate to the extent that it is so replaced. Buyer shall not be required to accept (and the same shall not count towards satisfaction of the estoppel condition, any certificate which discloses: (i) a material uncured default by the tenant or the landlord under the lease; (ii) any correct information that is materially inconsistent with the terms of the lease; (iii) any right to set-up” Title Commitment promptly after off in favor of the Closing Datetenant or (iv) any material claim by the tenant against the landlord.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Ii Inc)
Buyer’s Conditions Precedent. The following shall be conditions precedent to Buyer’s obligation to purchase close, in addition to all other conditions precedent set forth in this Agreement.
i. The City Council of the Partnership Interests City of Anaheim, acting as the legislative body of Buyer, shall have approved this Agreement and authorized its designated representative to execute of behalf of Buyer all documents necessary to close.
ii. Seller shall have timely delivered to Escrow Agent all of the items to be delivered by Seller pursuant to Paragraph 7.A hereof. Seller shall have timely delivered to Buyer all of the items to be delivered by Seller pursuant to Paragraph 7.B hereof.
iii. The Building shall be vacant.
iv. If, in the course of performing the Buyer’s Due Diligence contamination was discovered, Buyer has determined that the cost of remediation is reasonable and Buyer and Seller have agreed on an adjustment of the Purchase Price mutually acceptable to the parties, or otherwise alternatively, Seller has assumed financial responsibility for the RAP in a manner acceptable to perform any obligation Buyer as provided in Paragraph 5.D.
v. As of the Closing, Seller shall have timely performed all of the material obligations required by the terms of this Agreement to be performed by Seller.
vi. Title Company is irrevocably committed to issue the Title Policy.
vii. All representations and warranties made by Seller to Buyer in this Agreement shall be conditioned upon the fulfillment true and correct as of the following Closing.
viii. The Real Property (or portion thereof) shall not be damaged or destroyed by casualty or otherwise as of the Closing. Unless all of Buyer’s conditions precedent:
precedent contained in this Agreement are satisfied within the time period specified, or if no time period is specified, prior to or at Closing, Buyer, at its election, may, either (a) On or before extend the expiration of date for Closing until such conditions are satisfied, but no longer than sixty (60) days beyond the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoeveroriginal Closing Date, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to terminate this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.or
Appears in 1 contract
Samples: Agreement for Sale of Property
Buyer’s Conditions Precedent. In addition to all other conditions precedent set forth in this Agreement, Buyer’s obligation to purchase the Partnership Interests or otherwise obligations to perform any obligation provided in under this Agreement shall be conditioned upon and to close escrow are expressly subject to the fulfillment of the following conditions precedentfollowing:
(a) On or before the expiration delivery by Seller to Escrow Agent, for delivery to Buyer at XXX, of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.executed original Transfer Documents;
(b) On the issuance of the Owner’s Policy (or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement written commitment therefor) subject only to be performed those matters approved or deemed approved by Seller Buyer pursuant to this Agreement.;
(c) The Title Insurer shall deliver the delivery by Seller to Buyer at XXX of all security deposits and pre-paid/abated rents under the Closing at Buyer’s sole expense an endorsement Lease, if any, in the form of a credit in favor of Buyer against the Purchase Price;
(d) the deposit by Seller with Buyer not later than five (5) days prior to Owner’s Policy XXX of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes an original estoppel certificate, in a form reasonably acceptable to Buyer (except for taxes v) dated not more than thirty (30) days prior to XXX, (w) executed by Tenant and naming Buyer (or its designee) and any lender of which Buyer provides written notice to Seller pursuant to the notice provisions hereof prior to the end of the Study Period (“Lender”) as addressees, (x) verifying the basic facts of the Lease (term, rental, expiration date, options, if any exist), (y) confirming that there are not yet due no defaults by the landlord under the Lease and payable which that no percentage rents or impounds are apportioned hereunderpaid pursuant to the Lease (or specifying the amount(s) thereof), and (z) if Tenant’s obligations under the Lease have been guaranteed by another person or entity, also cover such guaranty and also be signed by such guarantor(s), (ii) mechanic’s liensa subordination, non-disturbance and attornment agreement executed by Tenant, in form and substance reasonably acceptable to Tenant, for the benefit of Lender, and (iii) survey issues an original estoppel certificate executed by all other parties to any applicable reciprocal easement agreement or declaration of covenants, conditions and/or restrictions (which shall be replaced by a the “reading” REA’s”) and addressed or certified to Buyer and Lender stating that such instrument is in full force and effect and is not modified (except as disclosed in such estoppel certificate) and, to the best knowledge of the Survey party giving the estoppel, the other party or parties thereto is/are not in default under the applicable instrument and all amounts, if any, owing under the applicable agreement have been paid in full;
(e) if applicable, the deposit with Escrow Agent and Buyer prior to the expiration of the Study Period of an executed waiver by Tenant of any right of first refusal under the Lease;
(f) the deposit with Escrow Agent of an executed affidavit of Seller or, if Seller is a single-asset entity, of Seller’s principals or parent entity, and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics’ lien exception only from the Owner’s Policy;
(g) the delivery by Seller to Buyer of the final Certificate of Occupancy for the Improvements;
(h) the deposit with Escrow Agent of a letter from Seller to Tenant requesting that future rent under the Lease be paid to Buyer;
(i) reserved;
(j) there has been no “shortages Insolvency Event” with respect to the Tenant. As used in areathis subsection (j), an “Insolvency Event” shall have occurred if the Tenant becomes insolvent within the meaning of the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the “Bankruptcy Code”), (iv) leases and parties in possession (which shall be replaced by files or notifies Seller or any affiliate of Seller that it intends to file a reference to “tenants petition under the leases described on Bankruptcy Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, hereinafter, an “Action”), becomes the Rent Roll delivered at subject of either a petition under the ClosingBankruptcy Code or an Action, or is not generally paying its debts as tenants only the same become due;
(k) reserved;
(l) delivery to Buyer of the original, fully-executed Lease, and a copy of all guaranties thereof, all exhibits, amendments and other modifications thereto, and, if Seller is not the original landlord under the Lease, all assignments necessary to establish that Seller is the successor-in-interest to the landlord’s rights under the Lease; and
(m) delivery to Buyer of originals of the Contracts, Warranties and Permits, if any, in the possession of Seller or Seller’s agents, including, without limitation, any right or option to purchase all warranties covering the roof or any other part of the Improvements, and any correspondence with respect thereto, together with such non-proprietary leasing and property manuals, files and records which are material in connection with the continued operation, leasing and maintenance of the Property”. If the foregoing conditions have not been satisfied by the specified date or XXX as the case may be, then Buyer shall have the right, at Buyer’s sole option, by giving written notice to Seller and Escrow Agent, to (i) and cancel this Agreement, whereupon the Xxxxxxx Money Deposit shall be paid immediately by Escrow Agent to Buyer and, except as otherwise provided in this Agreement, neither of the Parties shall have any further liability or obligation under this Agreement, or (vii) items raised extend such specified date or XXX, as applicable, for such amount of time as Buyer deems reasonably necessary to allow Seller to satisfy such conditions; provided however, unless otherwise agreed by the Parties, this Agreement shall be deemed cancelled as provided in (i) above if the foregoing conditions have not been satisfied on or before twenty (20) days after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Dateinitially scheduled XXX.
Appears in 1 contract
Samples: Purchase Agreement (AmREIT Monthly Income & Growth Fund IV LP)
Buyer’s Conditions Precedent. Buyer’s The obligation of the Buyer to purchase consummate the Partnership Interests or otherwise to perform any obligation provided in transactions contemplated by this Agreement shall be conditioned upon is subject to the fulfillment satisfaction or waiver in writing by the Buyer on or prior to the Closing Date of each of the following conditions precedent:
6.1. No preliminary or permanent injunction or other order will have been issued (and remain in force) by any Governmental Authority having appropriate jurisdiction preventing consummation of the transactions contemplated by this Agreement;
6.2. No Proceeding will have been commenced (or threatened in writing) by any Third Party against any of the Sellers, the Buyer or any of their respective Affiliates, associates, officers or directors seeking to restrain, enjoin, prevent or challenge the transactions contemplated by this Agreement or seeking material damages arising from the transactions contemplated by this Agreement;
6.3. All representations and warranties of each of the Sellers contained herein (a) On that are qualified by the term “material” or before the expiration other terms or Dollar amounts of similar import or effect (whether or not capitalized) shall be true and correct as of the Inspection Period, Buyer shall have inspected Closing Date as though such representations and approvedwarranties were made at such time (except to the extent that a representation specifically relates to an earlier date, in Buyer’s sole discretionwhich case as of such earlier date), all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before that are not so qualified shall be true and correct in all material respects as of the respective dates provided for herein, Seller shall haveClosing Date as though such representations and warranties were made at such time (except to the extent that a representation specifically relates to an earlier date, in a timely fashionwhich case as of such earlier date);
6.4. Each of the Sellers will have performed or satisfied in all material respects on or prior to the Closing Date all obligations, substantially performed each covenants and every covenant, undertaking and agreement agreements contained in this Agreement to be performed or complied with by Seller the Sellers on or prior to the Closing Date; and
6.5. CALLC shall not have terminated this Agreement and the consummation of the transactions contemplated herein with respect to CALLC shall be occurring.
6.6. If SUSA has not executed this Agreement, then (a) CALLC shall provide written evidence to Buyer that is reasonably satisfactory to Buyer that (i) SUSA has unconditionally consented to the assignment of CALLC’s interests in the Properties to Buyer pursuant to this Agreement.
Agreement and (cii) The Title Insurer shall deliver to Buyer at SUSA has waived its PPR under the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and Development Agreement or such PPR has otherwise expired in accordance with the Commitmentterms of the Development Agreement, as it may have been modified as contemplated by this Agreement and (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to b) either (i) taxes (except for taxes which are not yet due the Buyer, in its sole discretion, shall be fully satisfied with the terms and payable which are apportioned hereunder), conditions of the Development Agreement or (ii) mechanic’s liensSUSA shall agree in writing that the Properties actually assigned to the Buyer hereunder will, (iii) survey issues (which shall effective upon such assignment, cease to be replaced by a subject to the Development Agreement in any respect and will cease to be “readingJoint Interests” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted ExceptionsDevelopment Agreement. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.PURCHASE AND SALE AGREEMENT 41
Appears in 1 contract
Buyer’s Conditions Precedent. Buyer’s obligation The obligations of Buyer to purchase consummate the Partnership Interests or otherwise transactions contemplated by this Agreement are subject to perform any obligation provided each of the following conditions:
(a) The representations and warranties made by Seller in this Agreement shall be conditioned upon the fulfillment true in all materials respects when made and on and as of the following conditions precedent:
(a) On or before the expiration date of the Inspection Period, Closing as though such representations and warranties were made on and as of Closing. Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating received from Seller at Closing satisfactory certificates to the Property, such effect signed by an authorized officer of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, have performed and complied in a timely fashion, substantially performed each and every covenant, undertaking and agreement all material respects with all provisions of this Agreement required to be performed or complied with by Seller pursuant prior to or at Closing. Buyer shall have received from Seller at Closing satisfactory certificates to such effect signed by an authorized officer of Seller.
(c) No action or proceeding by or before any governmental authority shall have been instituted (and not subsequently dismissed, settled or otherwise terminated), which might restrain, prohibit or invalidate any material portion of the transactions contemplated by this Agreement.
(cd) Buyer shall have received from counsel for Seller an opinion, dated as of Closing, that all necessary corporate action has been duly and validly taken on behalf of Seller for the execution and performance of this Agreement and all agreements and instruments entered into or delivered by Seller pursuant hereto, that all such agreements and instruments are valid and binding on Seller and enforceable against Seller, and that counsel has made reasonable inquiry and, to such counsel's knowledge, Seller is not subject to any order, writ, injunction or decree of any count or governmental authority that would prevent or restrain Seller from fulfilling its obligations under this Agreement or under any such other agreement or instrument.
(e) All applicable waiting periods in respect of the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been obtained.
(f) The Title Insurer Seller shall deliver have executed and delivered to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership each of the Real Property Seller Documents and such additional documents as contemplated under Section 2.01 hereof and may be reasonably requested by Buyer in accordance with order to consummate the Commitment, as it may have been modified as transactions contemplated by this Agreement Agreement.
(g) Buyer shall have received the “Title Policy”)Environmental Reports for the Locations as provided by this Agreement.
(h) No more than twenty-four (24) Locations of any type, with extended coverage nor more than fifteen (i.e. with General Standard Exceptions 1 through 5 deleted)15) Locations at which gasoline and motor fuels are sold, with respect to (i) taxes (except shall have been deleted from the purchase and sale for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent reason permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsementsthis Agreement. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.57
Appears in 1 contract
Samples: Asset Purchase Agreement (Dairy Mart Convenience Stores Inc)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in 's obligations under this Agreement shall be conditioned upon are subject to the fulfillment satisfaction at or before the Closing Date of each of the following conditions precedent:(the fulfillment of any of which may be waived in writing by Buyer):
(a) On All terms, covenants and conditions of this Agreement and the Related Agreements to be complied with or before performed by JPE prior to or on the expiration of the Inspection Period, Buyer Closing Date shall have inspected been complied with and approvedperformed by JPE, in Buyer’s sole discretion, including JPE's timely taking of all aspects actions and matters relating delivery of all documents required to be taken and delivered by them under this Agreement and the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further noticeRelated Agreements.
(b) On or before All representations, warranties, disclosures and statements of JPE contained in this Agreement, the respective dates provided for herein, Seller Related Agreements and the Other Documents shall havebe true and complete as of the date of this Agreement and the Closing Date. Any amendments to the Exhibits and Schedules to this Agreement and the Related Agreements which JPE proposes to deliver after the date of this Agreement shall be satisfactory to Buyer, in a timely fashionits sole discretion.
(c) JPE shall have furnished to Buyer an opinion of Xxxxxx Xxxxxxx PLLC, substantially performed each and every covenantdated as of the Closing Date, undertaking and agreement to be performed by Seller pursuant in form of Exhibit D to this Agreement.
(cd) The Title Insurer Since the date of this Agreement, there shall deliver not have been any material adverse change in the financial condition or business of any JPE Company, or in the condition of the Assets of any JPE Company, or any event which may, in the future, cause such a change.
(e) JPE shall have delivered to Buyer at the commitment or commitments for title insurance and the boundary surveys required pursuant to Section 9 above, showing title to the Properties to be in the condition required under this Agreement for the performance of this Agreement and the Title Company shall have extended the effective date of such commitment or commitments to the Closing at Buyer’s sole expense an endorsement Date and shall be irrevocably committed to Owner’s Policy of Title Insurance with respect issue its title insurance policy or policies pursuant to such commitment or commitments without any exception for "defects, liens, encumbrances, adverse claims or any other matters, if any, created, first appearing in the public records or attaching subsequent to the Partnership’s ownership effective date but prior to the date the proposed insured acquires for value of record the estate or interest covered by the title commitment" or similar "gap" exception.
(f) JPE and Buyer shall have received in writing (1) all approvals and consents necessary to authorize, approve and consummate this Agreement, the Related Agreements and the Transaction as provided in Section 9.2, (2) the Confirmation Orders and approval of the Real Property as contemplated under Section 2.01 hereof and Bankruptcy Courts in accordance with the Commitmentcurrent terms of the Plan of Reorganizations applicable to Plastic Trim and Starboard (and any changes thereto shall be acceptable to Buyer in its sole discretion) and (3) any third party consents necessary to maintain the Material Contracts set forth on Schedule 8.6 after the consummation of this Transaction.
(g) No employment or consulting (or similar) agreement and no stock option nor similar agreement shall exist between any JPE Company and either Xxxxxxx Chrysler or Xxxxxxx Xxxxxxxx; and JPE shall have entered into a binding Employment Release with each of Xxxxxxx Xxxxxxxx and Xxxxxxx Chrysler.
(h) Buyer, as it may JPE and the Bank Group shall have been modified as contemplated by this entered into a Bank Agreement (providing for the “Title Policy”)full satisfaction, with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted)discharge, with respect to release and pay-off of the Debt.
(i) taxes (except Buyer shall have arranged for taxes which are not yet due and payable which are apportioned hereunder)JPE to have obtained financing following the Closing in an amount no less than $51.6 million; provided, (ii) mechanic’s lienshowever, (iii) survey issues (which shall that such financing may be replaced by a “reading” subject to the satisfaction of the Survey conditions precedent in this Section 11.1 and an exception only for “shortages in area”), (iv) leases 11.3 below and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued those conditions precedent required by the Title Insurer lenders to such financing.
(j) JPE shall have at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, least $35 million in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after Working Capital on the Closing Date.
(k) JPE shall have duly adopted the Resolutions and such Resolutions shall be fully authorized and in effect as of the Closing Date.
(l) Buyer shall be satisfied, in its sole discretion, with the results of Buyer's Due Diligence Investigation.
(m) JPE shall have delivered to ASC a copy of the Minutes of its Board of Directors Meeting in which it received the Fairness Opinion.
Appears in 1 contract
Samples: Investment Agreement (Jpe Inc)
Buyer’s Conditions Precedent. Buyer’s obligation to purchase perform under this Agreement is expressly subject to the Partnership Interests satisfaction (or otherwise waiver) at or prior to perform any obligation provided Close of Escrow of the following:
8.1.1. The representations and warranties of Seller contained in Section 11 of this Agreement shall be conditioned upon the fulfillment true and correct in all material respects as of the following conditions precedent:Effective Date and shall be true and correct in all material respects as of Close of Escrow as if made at and as of such time, except for (i) changes permitted or contemplated hereby; and (ii) representations and warranties which are as of a specific date, in which event they shall be true and correct as of such date.
(a) On or before the expiration of the Inspection Period, Buyer 8.1.2. Seller shall have inspected and approved, performed in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement material respects its obligations under this Agreement required to be performed by Seller it at or prior to Close of Escrow pursuant to the terms hereof.
8.1.3. Escrow Agent shall have issued to Buyer the Owner’s Policy (or a binding written commitment therefor) subject only to the Permitted Exceptions and those other matters, if any, approved or deemed approved by Buyer pursuant to this Agreement.
8.1.4. Buyer’s Board of Directors (cthe “Board”) shall have approved this Agreement and the Purchase Transaction, which approval shall not be subject to appeal or reversal (the “Board Approval”). The Title Insurer Board Approval shall deliver to be obtained by Buyer at the Closing at Buyer’s sole expense an endorsement to Ownercost.
8.1.5. The Commission shall have entered a final order approving, among other things, the cancellation and extinguishment of the Seller’s Policy CC&N for the Certificated Area, Seller’s sale of Title Insurance with respect assets, and the transfer of Seller’s Customers to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property Buyer subject only to the Permitted Exceptionsconsummation of the Purchase Transaction (the “Commission Order”).
8.1.6. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require received commercially acceptable financing for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Datetransaction.
Appears in 1 contract
Samples: Asset Purchase Agreement
