Conditions for the Benefit of Purchaser. Subject to Section 8.6, the obligation of Purchaser under this Agreement to purchase the Properties and to pay the Purchase Price is subject to the satisfaction at the time of each Closing of each of the following conditions (any of which may be waived in whole or in part by Purchaser at or prior to Closing): (a) The representations and warranties of Stayton in Section 4.1 shall be true and correct as of the Closing Date in all material respects, as though such representations and warranties were made at and as of the Closing Date (provided, however, that any such representations that are limited by materiality, material adverse effect or similar qualifiers shall be true and correct in all respects as though such representations and warranties were made at and as of the Closing Date) and Stayton shall deliver a certificate confirming the same. (b) Stayton shall have performed, observed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with by Stayton as of Closing. Purchaser shall have received all documents required to be delivered under Section 8.3. (c) Excluding any waiting periods required for Licensing Approvals, all waiting periods specified by Law, including waiting periods under the HSR Act, the passing of which is necessary for consummation of the transactions contemplated by this Agreement, shall have expired or terminated. (d) The Court shall have entered (i) the Auction Order and (ii) the TIC Orders and. (e) The Sale Approval Order approving the sale of the Properties to Purchaser, the TIC Orders, the Consolidation Order and the Order of the Court confirming the Reorganization Plan shall each have been entered by the Court and shall not have been stayed and shall not be subject to any pending appeals provided, that if all other conditions to Purchaser's obligation to Close shall have been met, and if there shall be pending any such appeal, in such event Purchaser shall, within three Business Days prior to the Scheduled Closing Date, either (i) waive such condition and forthwith proceed to Closing, (ii) defer the Closing with respect to one or more of the Properties affected by such appeal in accordance with Section 8.6 or (iii) terminate this Agreement with respect to all of the Properties in which case Purchaser shall be entitled to return of the Deposit but not be entitled to receive the Break-Up Fee or the Expense Reimbursement, in which case, neither Stayton nor Purchaser shall have any further rights or obligations hereunder, except as provided herein. (f) The Effective Date shall have occurred and at least 42 days have passed since the entry of the Sale Approval Order. (g) Stayton shall have delivered to Purchaser currently effective certificates of liability insurance, the premiums for which have been paid on the monthly basis, and otherwise on the same terms and conditions as are described in Section 4.1(q) with respect to the liability insurance for as long as Stayton owns or manages the Property and the tail insurance required by Section 5.1(l). (h) Purchaser shall have received from Stayton its agreement to defend, indemnify and hold harmless Purchaser, Blackstone Venture Member, Columbia Pacific, Emeritus and their respective Affiliates from and against all loss, liability, expense and damage arising out of the Tort Liabilities and Reimbursement Obligations. (i) Except for the discrepancies agreed to by Purchaser as described in Exhibit O-10, each of the Existing Real Property Loans and Existing Personal Property Loans shall have been modified in accordance with the Modification Schedule; provided, however, in the event that all other modifications required by the Modification Schedule have been satisfied, but the Actual Rate is greater than the Underwritten Rate, this Section 7.1(i) shall nevertheless be deemed satisfied subject to Section 2.5(b) and the Cash Consideration Amount shall be adjusted accordingly pursuant to Section 2.5(a)(ii). In the event of a failure of this Section 7.1(i) with respect to one or more of the Existing Real Property Loans (each a “Failed Loan Modification”), Purchaser shall have the right to (i) terminate this Agreement with respect to the Properties related to any such Failed Loan Modification and (A) such Properties shall be deemed excluded from the transactions contemplated under this Agreement and (B) the aggregate Cash/Equity Portion of the Purchase Price shall be reduced by the Allocated Cash/Equity Portion of the Purchase Price applicable to such excluded Properties and (C) Purchaser shall not assume the Existing Loans related to such excluded Properties. Notwithstanding the foregoing termination right, in the event that the Properties excluded as a result of this Section 7.1(i) shall exceed ten (10), then Purchaser shall only have the right to terminate the Agreement with respect to all of the Properties. In the event that Purchaser terminates this Agreement with respect to all of the Properties as a result of a failure of this Section 7.1(i), Purchaser shall be entitled to the return of the Deposit and Stayton shall be required to pay to Purchaser $3,000,000 in immediately available funds, in which case, neither Seller nor Purchaser shall have any further rights or obligations hereunder except as otherwise provided herein. (j) Stayton shall have, at its own cost, terminated (i) the Sunwest Affiliate Contracts, (ii) all Operating Contracts other than the Assumed Operating Contracts and (iii) all Management Agreements, and the party thereto shall have surrendered possession and Stayton shall have provided evidence of such termination reasonably satisfactory to Purchaser. (k) There shall be at least 114 Purchaser Licensed Properties representing not less than 85 percent of the Allocated Purchase Price (the "Minimum Licensing Threshold"); provided, however, Purchaser Licensed Properties which (i) are subject to an Unsatisfied Closing Condition or (ii) are subject to Existing Real Property Debt with any other Property for which Purchaser or Purchaser's Manager has not received all Licensing Approvals and an Interim Operating Agreement is not permitted by law to be entered into with respect to such other Property, shall not be included in the total when determining whether the Minimum Licensing Threshold has been satisfied. (l) With respect to the Closing of any Deferred Property (Licensing), Purchaser or Purchaser's Manager shall have received all Licenses necessary to own and operate such Deferred Property (Licensing) in compliance with Law. (m) Sellers shall have delivered to Purchaser true and correct copies of validly existing certificates of occupancy with respect to each Property or evidence reasonably acceptable to Purchaser that no certificate of occupancy is required by applicable Law. (n) The following title and survey matters shall be satisfied: (i) With respect to each of the Deficient Ground Lease Properties, Stayton shall deliver an original (i) memorandum of lease, duly executed by the applicable ground lessor and ground lessee and (ii) a non-disturbance agreement duly executed by the applicable ground lessee and fee mortgagee (if any), providing that the lessee’s leasehold interest shall not be disturbed so long as the lessee is not in default of the applicable Ground Lease, in each case in recordable form and reasonably acceptable to Purchaser and the Title Company. (ii) With respect to each of the Required Title Option Properties, the third party holding the applicable right/option shall not have exercised such right/option and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company of such rejection or effective deemed rejection (including copies of all notices and agreements related thereto). (iii) With respect to each of the Required Title Consent Properties, the third party holding the applicable consent right shall have granted its consent and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such consent has been granted or effectively deemed granted (including copies of all notices and agreements related thereto). (iv) With respect to each of the Required Title Notice Properties, Stayton shall have timely delivered the required notices (in forms reasonably approved by Purchaser) and shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such notices have been properly delivered (including copies thereof and correspondence related thereto). (v) The Title Company shall be unconditionally prepared, subject only to the payment of the applicable title insurance premium and other related charges, to issue to Purchaser with respect to each parcel of Real Property an Owner's Title Policy, insuring that title to such parcel of Real Property is vested in Purchaser and subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions. For purposes of this Agreement, the term "Owner's Title Policy" shall mean a 2006 ALTA Owner's Form of title insurance policy (or comparable form in states in which the ALTA form is not available) in the amount of the Purchase Price, insuring Purchaser's title to such Property, subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions, together with the following endorsements (to the extent that such endorsements are available in the state in which the Property is located): (a) "land same as survey" (survey matches legal title); (b) contiguity (if applicable); (c) separately assessed tax parcel; (d) comprehensive ALTA 9.2 (T19.1 in Texas); (e) creditor's rights exclusion deletion; (f) subdivision, (g) zoning-improved property, with parking, (h) EPA lien endorsement, (i) leasehold (if applicable), (j) access and (k) address/location of improvements.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Emeritus Corp\wa\), Purchase and Sale Agreement
Conditions for the Benefit of Purchaser. Subject (1) Purchaser shall be obliged to Section 8.6, complete the obligation of Purchaser under this Agreement to purchase the Properties and to pay the Purchase Price is subject to the satisfaction at the time of each Closing of Transactions only if each of the following conditions precedent has been satisfied in full at or before the time of Closing on the Closing Date:
(a) all of the representations and warranties of Vendor, KML and KMI made in this Agreement shall be true and correct as at the date hereof and the Closing Date (except to the extent such representations and warranties expressly relate to a specified date, and in such case, shall be true and correct on and as of such specified date), except for the failure of representations and warranties to be true and correct (without regard to any qualifications with respect to materiality, Material Adverse Effect or the like contained therein) as individually or in the aggregate, do not have a Material Adverse Effect; and a certificate of a senior officer of Vendor certifying thereto shall have been delivered to Purchaser;
(b) each of Vendor, KML and KMI have complied with or performed all of their respective obligations, covenants and agreements under this Agreement to be complied with or performed by Vendor, KML and KMI on or before the Closing Date in all material respects and a certificate of a senior officer each of Vendor and KML certifying thereto shall have been delivered to Purchaser;
(c) all corporate proceedings required to be taken by Vendor and KML in connection with the Transactions have been undertaken and obtained;
(d) the Transaction Resolution Approval has been undertaken and obtained;
(e) the Competition Approval and the CTA Clearance shall have been obtained;
(f) the CFIUS Clearance shall have been obtained;
(g) there is no extant injunction or restraining order issued by a court of competent jurisdiction that comprises a Governmental Authority preventing the completion of the Transactions;
(h) since the date of this Agreement there has not occurred any event which has had a Material Adverse Effect;
(i) Vendor has delivered or caused to be delivered to Purchaser the following:
(i) certificates representing the Purchased Shares and Purchased Units, accompanied by stock and unit transfer powers duly executed in blank or duly executed instruments of transfer, and all such other assurances, consents and other documents as Purchaser reasonably requests to effectively transfer to Purchaser title to the Purchased Shares and Purchased Units free and clear of all Encumbrances other than Encumbrances thereon in respect of the security provided for by the Vendor and the Target Entities to secure obligations of TM Pipeline LP under the Limited TM Pipeline Indemnity (Covered Credit Agreement);
(ii) a certified copy of a resolution of the board of directors of each of the Managing Partner and KMCI consenting to the transfer of the Purchased Shares and the Purchased Units from Vendor to Purchaser as contemplated by this Agreement and authorizing the execution, delivery and performance of all contracts, agreements, instruments, certificates and other documents required by this Agreement to be delivered by the Managing Partner and KMCI, as applicable;
(iii) releases by Vendor as shareholder of the Managing Partner and KMCI customary in a transaction such as the Transaction;
(iv) evidence, satisfactory to Purchaser of the release and discharge of all Encumbrances affecting any of the Assets, other than the Permitted Encumbrances, but, excluding Encumbrances in favour of Computershare Trust Company of Canada referred to in subparagraph (i) of the definition of Permitted Encumbrances (which shall, for certainty, be released concurrently with Closing);
(v) the Transition Services Agreement duly executed by Vendor;
(vi) a certificate from the General Partner of TM Pipeline LP in accordance with U.S. Treasury Regulation 1.1445-11T(d), certifying that fifty percent (50%) or more of the value of the gross assets of TM Pipeline LP do not consist of U.S. real property interests and that ninety percent or more of the value of the gross assets of TM Pipeline LP do not consist of U.S. real property interests plus any cash or cash equivalents;
(vii) a certificate from the General Partner of TM Pipeline LP under U.S. Internal Revenue Service Notice 2018-29 stating that if the TM Pipeline LP had sold all of its assets at their fair market value, the amount of effectively connected gain within the meaning of Notice 2018-29 would be less than twenty five percent (25%) of the total gain; and
(j) if the Covered Credit Agreement has been entered into, the Limited TM Pipeline LP Indemnity (Covered Credit Agreement) shall have been entered into.
(2) Each of the conditions set out in Section 4.1(1) is for the exclusive benefit of Purchaser and Purchaser may be waived waive compliance with any such condition in whole or in part by Purchaser at or prior notice in writing to Closing):
(a) The representations and warranties of Stayton in Section 4.1 shall be true and correct as of the Closing Date in all material respects, as though such representations and warranties were made at and as of the Closing Date (provided, however, that any such representations that are limited by materiality, material adverse effect or similar qualifiers shall be true and correct in all respects as though such representations and warranties were made at and as of the Closing Date) and Stayton shall deliver a certificate confirming the same.
(b) Stayton shall have performed, observed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with by Stayton as of Closing. Purchaser shall have received all documents required to be delivered under Section 8.3.
(c) Excluding any waiting periods required for Licensing Approvals, all waiting periods specified by Law, including waiting periods under the HSR Act, the passing of which is necessary for consummation of the transactions contemplated by this Agreement, shall have expired or terminated.
(d) The Court shall have entered (i) the Auction Order and (ii) the TIC Orders and.
(e) The Sale Approval Order approving the sale of the Properties to Purchaser, the TIC Orders, the Consolidation Order and the Order of the Court confirming the Reorganization Plan shall each have been entered by the Court and shall not have been stayed and shall not be subject to any pending appeals provided, that if all other conditions to Purchaser's obligation to Close shall have been met, and if there shall be pending any such appeal, in such event Purchaser shall, within three Business Days prior to the Scheduled Closing Date, either (i) waive such condition and forthwith proceed to Closing, (ii) defer the Closing with respect to one or more of the Properties affected by such appeal in accordance with Section 8.6 or (iii) terminate this Agreement with respect to all of the Properties in which case Purchaser shall be entitled to return of the Deposit but not be entitled to receive the Break-Up Fee or the Expense Reimbursement, in which case, neither Stayton nor Purchaser shall have any further rights or obligations hereunderVendor, except as provided herein.
(f) The Effective Date shall have occurred and at least 42 days have passed since the entry of the Sale Approval Order.
(g) Stayton shall have delivered to Purchaser currently effective certificates of liability insurance, the premiums for which have been paid on the monthly basis, and otherwise on the same terms and conditions as are described in Section 4.1(q) with respect to the liability insurance for as long as Stayton owns or manages the Property and the tail insurance required by Section 5.1(l).
(h) Purchaser shall have received from Stayton its agreement to defend, indemnify and hold harmless Purchaser, Blackstone Venture Member, Columbia Pacific, Emeritus and their respective Affiliates from and against all loss, liability, expense and damage arising out of the Tort Liabilities and Reimbursement Obligations.
(i) Except for the discrepancies agreed to by Purchaser as described in Exhibit O-10, each of the Existing Real Property Loans and Existing Personal Property Loans shall have been modified in accordance with the Modification Schedule; provided, however, in the event that all other modifications required by the Modification Schedule have been satisfied, but the Actual Rate is greater than the Underwritten Rate, this Section 7.1(i) shall nevertheless be deemed satisfied subject to Section 2.5(b) and the Cash Consideration Amount shall be adjusted accordingly pursuant to Section 2.5(a)(ii). In the event of a failure of this Section 7.1(i) with respect to one or more of the Existing Real Property Loans (each a “Failed Loan Modification”), Purchaser shall have the right to (i) terminate this Agreement with respect to the Properties related to any no such Failed Loan Modification and (A) such Properties shall be deemed excluded from the transactions contemplated under this Agreement and (B) the aggregate Cash/Equity Portion of the Purchase Price shall be reduced by the Allocated Cash/Equity Portion of the Purchase Price applicable to such excluded Properties and (C) Purchaser shall not assume the Existing Loans related to such excluded Properties. Notwithstanding the foregoing termination right, in the event that the Properties excluded waiver operates as a result waiver of this Section 7.1(i) shall exceed ten (10), then Purchaser shall only have the right to terminate the Agreement with respect to all of the Properties. In the event that Purchaser terminates this Agreement with respect to all of the Properties as a result of a failure of this Section 7.1(i), Purchaser shall be entitled to the return of the Deposit and Stayton shall be required to pay to Purchaser $3,000,000 in immediately available funds, in which case, neither Seller nor Purchaser shall have any further rights or obligations hereunder except as otherwise provided herein.
(j) Stayton shall have, at its own cost, terminated (i) the Sunwest Affiliate Contracts, (ii) all Operating Contracts other than the Assumed Operating Contracts and (iii) all Management Agreements, and the party thereto shall have surrendered possession and Stayton shall have provided evidence of such termination reasonably satisfactory to Purchaser.
(k) There shall be at least 114 Purchaser Licensed Properties representing not less than 85 percent of the Allocated Purchase Price (the "Minimum Licensing Threshold"); provided, however, Purchaser Licensed Properties which (i) are subject to an Unsatisfied Closing Condition or (ii) are subject to Existing Real Property Debt with any other Property for which Purchaser or Purchaser's Manager has not received all Licensing Approvals and an Interim Operating Agreement is not permitted by law to be entered into with respect to such other Property, shall not be included in the total when determining whether the Minimum Licensing Threshold has been satisfiedcondition.
(l) With respect to the Closing of any Deferred Property (Licensing), Purchaser or Purchaser's Manager shall have received all Licenses necessary to own and operate such Deferred Property (Licensing) in compliance with Law.
(m) Sellers shall have delivered to Purchaser true and correct copies of validly existing certificates of occupancy with respect to each Property or evidence reasonably acceptable to Purchaser that no certificate of occupancy is required by applicable Law.
(n) The following title and survey matters shall be satisfied:
(i) With respect to each of the Deficient Ground Lease Properties, Stayton shall deliver an original (i) memorandum of lease, duly executed by the applicable ground lessor and ground lessee and (ii) a non-disturbance agreement duly executed by the applicable ground lessee and fee mortgagee (if any), providing that the lessee’s leasehold interest shall not be disturbed so long as the lessee is not in default of the applicable Ground Lease, in each case in recordable form and reasonably acceptable to Purchaser and the Title Company.
(ii) With respect to each of the Required Title Option Properties, the third party holding the applicable right/option shall not have exercised such right/option and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company of such rejection or effective deemed rejection (including copies of all notices and agreements related thereto).
(iii) With respect to each of the Required Title Consent Properties, the third party holding the applicable consent right shall have granted its consent and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such consent has been granted or effectively deemed granted (including copies of all notices and agreements related thereto).
(iv) With respect to each of the Required Title Notice Properties, Stayton shall have timely delivered the required notices (in forms reasonably approved by Purchaser) and shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such notices have been properly delivered (including copies thereof and correspondence related thereto).
(v) The Title Company shall be unconditionally prepared, subject only to the payment of the applicable title insurance premium and other related charges, to issue to Purchaser with respect to each parcel of Real Property an Owner's Title Policy, insuring that title to such parcel of Real Property is vested in Purchaser and subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions. For purposes of this Agreement, the term "Owner's Title Policy" shall mean a 2006 ALTA Owner's Form of title insurance policy (or comparable form in states in which the ALTA form is not available) in the amount of the Purchase Price, insuring Purchaser's title to such Property, subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions, together with the following endorsements (to the extent that such endorsements are available in the state in which the Property is located): (a) "land same as survey" (survey matches legal title); (b) contiguity (if applicable); (c) separately assessed tax parcel; (d) comprehensive ALTA 9.2 (T19.1 in Texas); (e) creditor's rights exclusion deletion; (f) subdivision, (g) zoning-improved property, with parking, (h) EPA lien endorsement, (i) leasehold (if applicable), (j) access and (k) address/location of improvements.
Appears in 2 contracts
Samples: Share and Unit Purchase Agreement, Share and Unit Purchase Agreement (Kinder Morgan Canada LTD)
Conditions for the Benefit of Purchaser. Subject to Section 8.6, (1) The purchase by Purchaser of the obligation of Purchaser under this Agreement to purchase the Properties and to pay the Purchase Price Purchased Shares as contemplated herein is subject to the satisfaction at the time of each Closing of each of the following conditions (any which are for the exclusive benefit of which may Purchaser to be waived in whole performed or in part by Purchaser complied with at or prior to the Time of Closing)::
(a) The the representations and warranties of Stayton Vendor set forth in Section 4.1 Sections 3.1 and 3.2 that are not qualified by the term “Material Adverse Effect” or any other materiality qualifier shall be true and correct in all material respects at the Time of Closing with the same force and effect as if made at and as of such time except for such representations and warranties that are made with respect to another date, including the date of this Agreement, in which case such representations and warranties shall be true and correct in all material respects as of such other date; and the representations and warranties that are qualified by the term “Material Adverse Effect” or any other materiality qualifier, to the extent so qualified, shall be true and correct at the Time of Closing with the same effect as if made at and as of such time except for such representations and warranties that are made with respect to another date, including the date of this Agreement, in which case such representations and warranties shall be true and correct as of the Closing Date in all material respects, as though such representations and warranties were made at and as of the Closing Date (provided, however, that any such representations that are limited by materiality, material adverse effect or similar qualifiers shall be true and correct in all respects as though such representations and warranties were made at and as of the Closing Date) and Stayton shall deliver a certificate confirming the same.other date;
(b) Stayton Vendor shall have performed, observed and performed or complied in all material respects with all covenantsof the terms, agreements covenants and conditions required by of this Agreement to be performed, observed and performed or complied with by Stayton as Vendor at or prior to the Time of Closing. Purchaser shall have received all documents required to be delivered under Section 8.3.;
(c) Excluding any waiting periods required for Licensing Approvals, all waiting periods specified by Law, including waiting periods under the HSR Act, the passing of which is necessary for consummation of the transactions contemplated by this Agreement, Purchaser shall have expired been furnished with such certificates of Vendor as may reasonably be requested by Purchaser in order to establish that the terms, covenants and conditions contained in this Agreement to have been satisfied by Vendor at or terminated.prior to the Time of Closing have been performed and complied with in all material respects and that the representations and warranties of Vendor herein given are true and correct as specified in Section 5.1(1)(a);
(d) The Court no Order of any court, tribunal or regulatory authority having jurisdiction shall have entered (i) been made or proceeding commenced that would enjoin or prohibit the Auction Order and (ii) the TIC Orders and.transactions contemplated hereby;
(e) The Sale Approval Order approving the sale of the Properties to Purchaser, the TIC Orders, the Consolidation Order and the Order of the Court confirming the Reorganization Plan shall each Regulatory Approvals have been entered by the Court and shall not have obtained with no material remedy having been stayed and shall not be subject to any pending appeals provided, that if all other conditions to imposed on Purchaser's obligation to Close shall have been met, and if there shall be pending any such appeal, in such event Purchaser shall, within three Business Days prior to the Scheduled Closing Date, either (i) waive such condition and forthwith proceed to Closing, (ii) defer the Closing with respect to one or more of the Properties affected by such appeal in accordance with Section 8.6 or (iii) terminate this Agreement with respect to all of the Properties in which case Purchaser shall be entitled to return of the Deposit but not be entitled to receive the Break-Up Fee or the Expense Reimbursement, in which case, neither Stayton nor Purchaser shall have any further rights or obligations hereunder, except as provided herein.;
(f) The Effective Date Vendor shall have occurred and at least 42 days have passed since delivered or caused to be delivered to Purchaser the entry of certificate or certificates representing the Sale Approval Order.Purchased Shares duly endorsed for transfer to Purchaser;
(g) Stayton Vendor shall have delivered executed and delivered, or caused to be executed and delivered, to Purchaser currently effective certificates of liability insurance, the premiums for which have been paid on the monthly basis, and otherwise on the same terms and conditions as are described in Section 4.1(q) with respect to the liability insurance for as long as Stayton owns or manages the Property Bxxx TV Affiliation Agreement and the tail insurance required by Section 5.1(l).Satellite Transmission MOU;
(h) all necessary steps and proceedings shall have been taken to permit the Purchased Shares to be duly and regularly transferred to and registered in the name of Purchaser free and clear of all Encumbrances;
(i) Purchaser shall have received from Stayton its agreement to defend, indemnify duly executed resignations and hold harmless Purchaser, Blackstone Venture Member, Columbia Pacific, Emeritus and their respective Affiliates from and against all loss, liability, expense and damage arising out releases effective as of Closing of the Tort Liabilities directors and Reimbursement Obligations.officers of the Corporation;
(ij) Except Purchaser shall have received evidence in form and substance satisfactory to it acting reasonably of (A) the release and discharge of the Corporation from all indemnification obligations to the Vendor contained in the Interim Services Agreement, (B) the release of the Corporation from BCE’s “Policy of Authorizations”, and (C) at Vendor’s sole discretion, the termination of the Subordination Agreements or the obligation of Vendor to provide a complete indemnity in favor of Purchaser for the discrepancies agreed to any damages suffered by Purchaser as described in Exhibit O-10, each a result of the Existing Real Property Loans and Existing Personal Property Loans shall have been modified in accordance with the Modification Schedule; provided, however, in the event that all other modifications required by the Modification Schedule have been satisfied, but the Actual Rate is greater than the Underwritten Rate, this Section 7.1(iSubordination Agreements not being terminated at Closing;
(k) shall nevertheless be deemed satisfied subject to Section 2.5(b) and the Cash Consideration Amount shall be adjusted accordingly pursuant to Section 2.5(a)(ii). In the event of a failure of this Section 7.1(i) with respect to one or more of the Existing Real Property Loans (each a “Failed Loan Modification”), Purchaser shall have received evidence in form and substance satisfactory to it acting reasonably, of the right to release and discharge of all Encumbrances affecting the Corporation or any of its assets other than the Permitted Encumbrances;
(il) terminate this Agreement no Bankruptcy Event shall have occurred with respect to the Properties related to any such Failed Loan Modification and (A) such Properties shall be deemed excluded from the transactions contemplated under this Agreement and (B) the aggregate Cash/Equity Portion of the Purchase Price shall be reduced by the Allocated Cash/Equity Portion of the Purchase Price applicable to such excluded Properties and (C) Purchaser shall not assume the Existing Loans related to such excluded Properties. Notwithstanding the foregoing termination right, in the event that the Properties excluded as a result of this Section 7.1(i) shall exceed ten (10), then Purchaser shall only have the right to terminate the Agreement with respect to all of the Properties. In the event that Purchaser terminates this Agreement with respect to all of the Properties as a result of a failure of this Section 7.1(i), Purchaser shall be entitled Corporation except to the return of the Deposit and Stayton shall extent it may be required to pay to Purchaser $3,000,000 in immediately available funds, in which case, neither Seller nor Purchaser shall have any further rights or obligations hereunder except as otherwise provided herein.
(j) Stayton shall have, at its own cost, terminated (i) the Sunwest Affiliate Contracts, (ii) all Operating Contracts other than the Assumed Operating Contracts and (iii) all Management Agreements, and the party thereto shall have surrendered possession and Stayton shall have provided evidence of such termination reasonably satisfactory to Purchaser.
(k) There shall be at least 114 Purchaser Licensed Properties representing not less than 85 percent of the Allocated Purchase Price (the "Minimum Licensing Threshold")cured; provided, however, Purchaser Licensed Properties which (i) are subject to an Unsatisfied Closing Condition or (ii) are subject to Existing Real Property Debt with any other Property for which Purchaser or Purchaser's Manager has not received all Licensing Approvals and an Interim Operating Agreement is not permitted by law to be entered into with respect to such other Property, shall not be included in the total when determining whether the Minimum Licensing Threshold has been satisfied.
(l) With respect to the Closing of any Deferred Property (Licensing), Purchaser or Purchaser's Manager shall have received all Licenses necessary to own and operate such Deferred Property (Licensing) in compliance with Law.and
(m) Sellers shall have delivered to Purchaser true and correct copies of validly existing certificates of occupancy with respect to each Property or evidence reasonably acceptable to Purchaser that no certificate of occupancy is required by applicable Law.
(n) The following title and survey matters the Broadcasting Licences shall be satisfied:
(i) With respect to each of the Deficient Ground Lease Properties, Stayton shall deliver an original (i) memorandum of lease, duly executed held by the applicable ground lessor and ground lessee and (ii) a non-disturbance agreement duly executed by the applicable ground lessee and fee mortgagee (if any), providing that the lessee’s leasehold interest shall not be disturbed so long as the lessee is not in default of the applicable Ground Lease, in each case in recordable form and reasonably acceptable to Purchaser and the Title Company.
(ii) With respect to each of the Required Title Option Properties, the third party holding the applicable right/option shall not have exercised such right/option and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company of such rejection or effective deemed rejection (including copies of all notices and agreements related thereto).
(iii) With respect to each of the Required Title Consent Properties, the third party holding the applicable consent right shall have granted its consent and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such consent has been granted or effectively deemed granted (including copies of all notices and agreements related thereto).
(iv) With respect to each of the Required Title Notice Properties, Stayton shall have timely delivered the required notices (in forms reasonably approved by Purchaser) Corporation and shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such notices have been properly delivered (including copies thereof and correspondence related thereto)be in force.
(v) The Title Company shall be unconditionally prepared, subject only to the payment of the applicable title insurance premium and other related charges, to issue to Purchaser with respect to each parcel of Real Property an Owner's Title Policy, insuring that title to such parcel of Real Property is vested in Purchaser and subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions. For purposes of this Agreement, the term "Owner's Title Policy" shall mean a 2006 ALTA Owner's Form of title insurance policy (or comparable form in states in which the ALTA form is not available) in the amount of the Purchase Price, insuring Purchaser's title to such Property, subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions, together with the following endorsements (to the extent that such endorsements are available in the state in which the Property is located): (a) "land same as survey" (survey matches legal title); (b) contiguity (if applicable); (c) separately assessed tax parcel; (d) comprehensive ALTA 9.2 (T19.1 in Texas); (e) creditor's rights exclusion deletion; (f) subdivision, (g) zoning-improved property, with parking, (h) EPA lien endorsement, (i) leasehold (if applicable), (j) access and (k) address/location of improvements.
Appears in 1 contract
Conditions for the Benefit of Purchaser. Subject to Section 8.6, the obligation of Purchaser under this Agreement to purchase the Properties and to pay the Purchase Price is subject to the satisfaction at the time of each Closing of each of the following conditions (any of which may be waived in whole or in part by Purchaser at or prior to Closing):
(a) The sale by Seller and the purchase by Purchaser of the Assets, and the assumption by Purchaser of the Assumed Liabilities, are subject to the following conditions, which are for the exclusive benefit of Purchaser:
(i) the representations and warranties of Stayton Seller set forth in Section 4.1 shall be true and correct as of the Closing Date in all material respects3.1, as though such representations and warranties were made at and as of the Closing Date (provided, however, that any such representations that are limited by materiality, material adverse effect or similar qualifiers shall be true and correct in all respects material respects, at the Time of Closing with the same force and effect as though such representations and warranties were if made at and as of the Time of Closing;
(ii) Seller will have performed or complied with all of the terms, covenants and agreements in this Agreement to be performed or complied with by Seller at or prior to the Time of Closing;
(iii) Purchaser will have been furnished with certificates of officers of Seller certifying;
(A) the accuracy and completeness of the articles and the by-laws of such Seller,
(B) resolutions, as appropriate, of shareholders and/or directors of such Seller approving the transaction contemplated herein,
(C) the incumbency of officers signing this Agreement and the Ancillary Agreements, and
(D) performance of the terms, covenants and agreements to be performed by the Seller at or prior to the Time of Closing and the truth and accuracy (consistent with Section 6.1(a)(i) above) of the representations and warranties of such Seller as of the Closing Date;
(iv) subject to Sections 2.5 and Stayton 4.2, all Purchaser Required Consents and all Permits shall deliver have been obtained;
(v) the applicable waiting period under Section 123 of the Competition Act, shall have expired or have been waived or terminated;
(vi) Seller Parent or its designee shall have made the payment described in Section 2.6 and executed and delivered the Ancillary Agreements and the Deeds and Assignments;
(vii) Seller will provide Purchaser with a certificate confirming WSIB Purchase Certificate for Seller’s WSIB account, or if Seller has more than one WSIB Account, a WSIB Purchase Certificate for each of Seller’s WSIB Accounts, relieving the samePurchaser of any obligation for Seller’s financial liability to the WSIB up to the Time of Closing and
(viii) Seller will provide Purchaser with certified copies of the Resolutions and notices and other documents referred to in Section 5.3(c).
(b) Stayton shall have performed, observed and complied in all material respects with all covenants, agreements and conditions required by this Agreement In case any term or covenant of Seller or condition to be performed, observed and performed or complied with by Stayton as for the benefit of Closing. Purchaser shall have received all documents required to be delivered under (including, without limitation those set forth in Section 8.3.
(c6.3 below) Excluding any waiting periods required for Licensing Approvals, all waiting periods specified by Law, including waiting periods under the HSR Act, the passing of which is necessary for consummation of the transactions contemplated by this Agreement, shall have expired at or terminated.
(d) The Court shall have entered (i) the Auction Order and (ii) the TIC Orders and.
(e) The Sale Approval Order approving the sale of the Properties to Purchaser, the TIC Orders, the Consolidation Order and the Order of the Court confirming the Reorganization Plan shall each have been entered by the Court and shall not have been stayed and shall not be subject to any pending appeals provided, that if all other conditions to Purchaser's obligation to Close shall have been met, and if there shall be pending any such appeal, in such event Purchaser shall, within three Business Days prior to the Scheduled Time of Closing Date, either (i) waive such condition and forthwith proceed has not been performed or complied with at or prior to the Time of Closing, (ii) defer the Closing with respect to one or more of the Properties affected by such appeal in accordance with Section 8.6 or (iii) terminate Purchaser, without limiting any other right that Purchaser has, may rescind this Agreement with respect by notice to all of the Properties in which case Purchaser shall be entitled to return of the Deposit but not be entitled to receive the Break-Up Fee or the Expense Reimbursement, in which case, neither Stayton nor Purchaser shall have Seller without any further rights or obligations hereunder, except as provided herein.
(f) The Effective Date shall have occurred and at least 42 days have passed since the entry of the Sale Approval Order.
(g) Stayton shall have delivered to Purchaser currently effective certificates of liability insurance, the premiums for which have been paid on the monthly basis, and otherwise on the same terms and conditions as are described in Section 4.1(q) with respect to the liability insurance for as long as Stayton owns or manages the Property and the tail insurance required by Section 5.1(l).
(h) Purchaser shall have received from Stayton its agreement to defend, indemnify and hold harmless Purchaser, Blackstone Venture Member, Columbia Pacific, Emeritus and their respective Affiliates from and against all loss, liability, expense and damage arising out of the Tort Liabilities and Reimbursement Obligations.
(i) Except for the discrepancies agreed to by Purchaser as described in Exhibit O-10, each of the Existing Real Property Loans and Existing Personal Property Loans shall have been modified in accordance with the Modification Schedule; provided, however, in the event that all other modifications required by the Modification Schedule have been satisfied, but the Actual Rate is greater than the Underwritten Rate, this Section 7.1(i) shall nevertheless be deemed satisfied subject to Section 2.5(b) and the Cash Consideration Amount shall be adjusted accordingly pursuant to Section 2.5(a)(ii). In the event of a failure of this Section 7.1(i) with respect to one or more of the Existing Real Property Loans (each a “Failed Loan Modification”), Purchaser shall have the right to (i) terminate this Agreement with respect to the Properties related to any such Failed Loan Modification and (A) such Properties shall be deemed excluded from the transactions contemplated obligation under this Agreement and (B) the aggregate Cash/Equity Portion of the Purchase Price shall be reduced by the Allocated Cash/Equity Portion of the Purchase Price applicable to such excluded Properties and (C) Purchaser shall not assume the Existing Loans related to such excluded Properties. Notwithstanding the foregoing termination right, in the event that the Properties excluded as a result of this Section 7.1(i) shall exceed ten (10), then Purchaser shall only have the right to terminate the Agreement with respect to all of the Properties. In the event that Purchaser terminates this Agreement with respect to all of the Properties as a result of a failure of this Section 7.1(i), Purchaser shall be entitled to the return of the Deposit and Stayton shall be required to pay to Purchaser $3,000,000 in immediately available funds, in which case, neither Seller nor Purchaser shall have any further rights or obligations hereunder except as otherwise provided herein.
(j) Stayton shall have, at its own cost, terminated (i) the Sunwest Affiliate Contracts, (ii) all Operating Contracts other than the Assumed Operating Contracts and (iii) all Management Agreements, and the party thereto shall have surrendered possession and Stayton shall have provided evidence of such termination reasonably satisfactory to Purchaser.
(k) There shall be at least 114 Purchaser Licensed Properties representing not less than 85 percent of the Allocated Purchase Price (the "Minimum Licensing Threshold"); provided, however, Purchaser Licensed Properties which (i) are subject to an Unsatisfied Closing Condition or (ii) are subject to Existing Real Property Debt waive compliance with any other Property for which Purchaser such term, covenant or Purchaser's Manager has not received all Licensing Approvals and an Interim Operating Agreement is not permitted by law to condition in whole or in part on such terms as may be entered into with respect to such other Property, shall not be included in the total when determining whether the Minimum Licensing Threshold has been satisfiedagreed upon.
(l) With respect to the Closing of any Deferred Property (Licensing), Purchaser or Purchaser's Manager shall have received all Licenses necessary to own and operate such Deferred Property (Licensing) in compliance with Law.
(m) Sellers shall have delivered to Purchaser true and correct copies of validly existing certificates of occupancy with respect to each Property or evidence reasonably acceptable to Purchaser that no certificate of occupancy is required by applicable Law.
(n) The following title and survey matters shall be satisfied:
(i) With respect to each of the Deficient Ground Lease Properties, Stayton shall deliver an original (i) memorandum of lease, duly executed by the applicable ground lessor and ground lessee and (ii) a non-disturbance agreement duly executed by the applicable ground lessee and fee mortgagee (if any), providing that the lessee’s leasehold interest shall not be disturbed so long as the lessee is not in default of the applicable Ground Lease, in each case in recordable form and reasonably acceptable to Purchaser and the Title Company.
(ii) With respect to each of the Required Title Option Properties, the third party holding the applicable right/option shall not have exercised such right/option and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company of such rejection or effective deemed rejection (including copies of all notices and agreements related thereto).
(iii) With respect to each of the Required Title Consent Properties, the third party holding the applicable consent right shall have granted its consent and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such consent has been granted or effectively deemed granted (including copies of all notices and agreements related thereto).
(iv) With respect to each of the Required Title Notice Properties, Stayton shall have timely delivered the required notices (in forms reasonably approved by Purchaser) and shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such notices have been properly delivered (including copies thereof and correspondence related thereto).
(v) The Title Company shall be unconditionally prepared, subject only to the payment of the applicable title insurance premium and other related charges, to issue to Purchaser with respect to each parcel of Real Property an Owner's Title Policy, insuring that title to such parcel of Real Property is vested in Purchaser and subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions. For purposes of this Agreement, the term "Owner's Title Policy" shall mean a 2006 ALTA Owner's Form of title insurance policy (or comparable form in states in which the ALTA form is not available) in the amount of the Purchase Price, insuring Purchaser's title to such Property, subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions, together with the following endorsements (to the extent that such endorsements are available in the state in which the Property is located): (a) "land same as survey" (survey matches legal title); (b) contiguity (if applicable); (c) separately assessed tax parcel; (d) comprehensive ALTA 9.2 (T19.1 in Texas); (e) creditor's rights exclusion deletion; (f) subdivision, (g) zoning-improved property, with parking, (h) EPA lien endorsement, (i) leasehold (if applicable), (j) access and (k) address/location of improvements.
Appears in 1 contract
Conditions for the Benefit of Purchaser. Subject to Section 8.6, the obligation of Purchaser Purchaser’s obligations under this Agreement to purchase the Properties and to pay the Purchase Price is are subject to the satisfaction at the time of each Closing of each of the following conditions (any of precedent which may be waived in whole or in part by Purchaser, provided such waiver is in writing and signed by Purchaser at on or prior before the Closing Date:
i. Seller shall have delivered to Closing):or for the benefit of Purchaser, on or before the Closing Date, all of the documents and items required to be delivered by Seller pursuant to Article 8 hereof and Seller shall have performed in all material respects all of its obligations hereunder to be performed on or before the Closing Date;
(a) The ii. Seller shall comply with Article 21 hereof;
iii. Seller shall have received the No Action Letter; and
iv. Subject to the other provisions of this Agreement, all of Seller’s representations and warranties of Stayton made in Section 4.1 this Agreement shall be true and correct as of the Closing Date date made and true and correct in all material respects, as though such representations and warranties were made at and respects as of the Closing Date (providedas if then made, howeverother than those representations or warranties made as of a specific date, that any or with reference to previously dated materials, in which event such representations that are limited by materiality, material adverse effect or similar qualifiers and warranties shall be true and correct as of the date thereof or as of the date of such materials, as applicable. For purposes hereof, a representation or warranty shall not be deemed to have been breached if the representation or warranty is not true and correct in all material respects as though such representations and warranties were made at and as of the Closing Date) and Stayton shall deliver a certificate confirming Date by reason of changed facts or circumstances arising after the same.
(b) Stayton shall have performeddate hereof, observed and complied in all material respects with all covenants, agreements and conditions required the occurrence of which is not prohibited by this Agreement to be performed, observed and complied with which did not arise by Stayton as reason of Closing. Purchaser shall have received all documents required to be delivered a breach of any covenant made by Seller under Section 8.3.
(c) Excluding any waiting periods required for Licensing Approvals, all waiting periods specified by Law, including waiting periods under the HSR Act, the passing of which is necessary for consummation of the transactions contemplated by this Agreement. The parties hereto acknowledge, agree and understand that nothing contained in this Section 9(B)(iv) shall have expired or terminated.
(d) The Court shall have entered (i) the Auction Order and (ii) the TIC Orders and.
(e) The Sale Approval Order approving the sale relieve Seller of the Properties to Purchaser, the TIC Orders, the Consolidation Order and the Order of the Court confirming the Reorganization Plan shall each have been entered by the Court and shall not have been stayed and shall not be subject to any pending appeals provided, that if all other conditions to Purchaser's its obligation to Close shall have been metcomply with all covenants of Seller expressly set forth herein (including, and if there shall be pending any such appealwithout limitation, in such event Purchaser shall, within three Business Days prior to the Scheduled Closing Date, either (i) waive such condition and forthwith proceed to Closing, (ii) defer the Closing with respect to one or more of the Properties affected by such appeal in accordance with Section 8.6 or (iii) terminate this Agreement with respect to all of the Properties in which case Purchaser shall be entitled to return of the Deposit but not be entitled to receive the Break-Up Fee or the Expense Reimbursement, in which case, neither Stayton nor Purchaser shall have any further rights or Seller’s obligations hereunder, except as provided herein.
(f) The Effective Date shall have occurred and at least 42 days have passed since the entry of the Sale Approval Order.
(g) Stayton shall have delivered to Purchaser currently effective certificates of liability insurance, the premiums for which have been paid on the monthly basis, and otherwise on the same terms and conditions as are described in Section 4.1(q) with respect to the liability insurance for as long as Stayton owns or manages the Property and the tail insurance required by Section 5.1(lunder Article 13 hereof).
(h) Purchaser shall have received from Stayton its agreement to defend, indemnify and hold harmless Purchaser, Blackstone Venture Member, Columbia Pacific, Emeritus and their respective Affiliates from and against all loss, liability, expense and damage arising out of the Tort Liabilities and Reimbursement Obligations.
(i) Except for the discrepancies agreed to by Purchaser as described in Exhibit O-10, each of the Existing Real Property Loans and Existing Personal Property Loans shall have been modified in accordance with the Modification Schedule; provided, however, in the event that all other modifications required by the Modification Schedule have been satisfied, but the Actual Rate is greater than the Underwritten Rate, this Section 7.1(i) shall nevertheless be deemed satisfied subject to Section 2.5(b) and the Cash Consideration Amount shall be adjusted accordingly pursuant to Section 2.5(a)(ii). In the event of a failure of this Section 7.1(i) with respect to one or more of the Existing Real Property Loans (each a “Failed Loan Modification”), Purchaser shall have the right to (i) terminate this Agreement with respect to the Properties related to any such Failed Loan Modification and (A) such Properties shall be deemed excluded from the transactions contemplated under this Agreement and (B) the aggregate Cash/Equity Portion of the Purchase Price shall be reduced by the Allocated Cash/Equity Portion of the Purchase Price applicable to such excluded Properties and (C) Purchaser shall not assume the Existing Loans related to such excluded Properties. Notwithstanding the foregoing termination right, in the event that the Properties excluded as a result of this Section 7.1(i) shall exceed ten (10), then Purchaser shall only have the right to terminate the Agreement with respect to all of the Properties. In the event that Purchaser terminates this Agreement with respect to all of the Properties as a result of a failure of this Section 7.1(i), Purchaser shall be entitled to the return of the Deposit and Stayton shall be required to pay to Purchaser $3,000,000 in immediately available funds, in which case, neither Seller nor Purchaser shall have any further rights or obligations hereunder except as otherwise provided herein.
(j) Stayton shall have, at its own cost, terminated (i) the Sunwest Affiliate Contracts, (ii) all Operating Contracts other than the Assumed Operating Contracts and (iii) all Management Agreements, and the party thereto shall have surrendered possession and Stayton shall have provided evidence of such termination reasonably satisfactory to Purchaser.
(k) There shall be at least 114 Purchaser Licensed Properties representing not less than 85 percent of the Allocated Purchase Price (the "Minimum Licensing Threshold"); provided, however, Purchaser Licensed Properties which (i) are subject to an Unsatisfied Closing Condition or (ii) are subject to Existing Real Property Debt with any other Property for which Purchaser or Purchaser's Manager has not received all Licensing Approvals and an Interim Operating Agreement is not permitted by law to be entered into with respect to such other Property, shall not be included in the total when determining whether the Minimum Licensing Threshold has been satisfied.
(l) With respect to the Closing of any Deferred Property (Licensing), Purchaser or Purchaser's Manager shall have received all Licenses necessary to own and operate such Deferred Property (Licensing) in compliance with Law.
(m) Sellers shall have delivered to Purchaser true and correct copies of validly existing certificates of occupancy with respect to each Property or evidence reasonably acceptable to Purchaser that no certificate of occupancy is required by applicable Law.
(n) The following title and survey matters shall be satisfied:
(i) With respect to each of the Deficient Ground Lease Properties, Stayton shall deliver an original (i) memorandum of lease, duly executed by the applicable ground lessor and ground lessee and (ii) a non-disturbance agreement duly executed by the applicable ground lessee and fee mortgagee (if any), providing that the lessee’s leasehold interest shall not be disturbed so long as the lessee is not in default of the applicable Ground Lease, in each case in recordable form and reasonably acceptable to Purchaser and the Title Company.
(ii) With respect to each of the Required Title Option Properties, the third party holding the applicable right/option shall not have exercised such right/option and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company of such rejection or effective deemed rejection (including copies of all notices and agreements related thereto).
(iii) With respect to each of the Required Title Consent Properties, the third party holding the applicable consent right shall have granted its consent and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such consent has been granted or effectively deemed granted (including copies of all notices and agreements related thereto).
(iv) With respect to each of the Required Title Notice Properties, Stayton shall have timely delivered the required notices (in forms reasonably approved by Purchaser) and shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such notices have been properly delivered (including copies thereof and correspondence related thereto).
(v) The Title Company shall be unconditionally prepared, subject only to the payment of the applicable title insurance premium and other related charges, to issue to Purchaser with respect to each parcel of Real Property an Owner's Title Policy, insuring that title to such parcel of Real Property is vested in Purchaser and subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions. For purposes of this Agreement, the term "Owner's Title Policy" shall mean a 2006 ALTA Owner's Form of title insurance policy (or comparable form in states in which the ALTA form is not available) in the amount of the Purchase Price, insuring Purchaser's title to such Property, subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions, together with the following endorsements (to the extent that such endorsements are available in the state in which the Property is located): (a) "land same as survey" (survey matches legal title); (b) contiguity (if applicable); (c) separately assessed tax parcel; (d) comprehensive ALTA 9.2 (T19.1 in Texas); (e) creditor's rights exclusion deletion; (f) subdivision, (g) zoning-improved property, with parking, (h) EPA lien endorsement, (i) leasehold (if applicable), (j) access and (k) address/location of improvements.
Appears in 1 contract
Samples: Sale Purchase Agreement (American Realty Capital New York Recovery Reit Inc)
Conditions for the Benefit of Purchaser. Subject to Section 8.6, the obligation of Purchaser under this Agreement to purchase the Properties and to pay the Purchase Price is subject to the satisfaction at the time of each Closing of each of the following conditions (any of which may be waived in whole or in part by Purchaser at or prior to Closing):
(a) The sale by Seller and the purchase by Purchaser of the Assets, and the assumption by Purchaser of the Assumed Liabilities, are subject to the following conditions, which are for the exclusive benefit of Purchaser:
(i) the representations and warranties of Stayton Seller set forth in Section 4.1 shall be true and correct as of the Closing Date in all material respects3.1, as though such representations and warranties were made at and as of the Closing Date (provided, however, that any such representations that are limited by materiality, material adverse effect or similar qualifiers shall be true and correct in all respects material respects, at the Time of Closing with the same force and effect as though such representations and warranties were if made at and as of the Time of Closing;
(ii) Seller will have performed or complied with all of the terms, covenants and agreements in this Agreement to be performed or complied with by Seller at or prior to the Time of Closing;
(iii) Purchaser will have been furnished with certificates of officers of Seller certifying;
(A) the accuracy and completeness of the articles and the by-laws of such Seller,
(B) resolutions, as appropriate, of shareholders and/or directors of such Seller approving the transaction contemplated herein,
(C) the incumbency of officers signing this Agreement and the Ancillary Agreements, and
(D) performance of the terms, covenants and agreements to be performed by the Seller at or prior to the Time of Closing and the truth and accuracy (consistent with Section 6.1(a)(i) above) of the representations and warranties of such Seller as of the Closing Date;
(iv) subject to Sections 2.5 and 4.2, all Purchaser Required Consents and all Permits shall have been obtained;
(v) the applicable waiting period under Section 123 of the Competition Act, shall have expired or have been waived or terminated;
(vi) Seller Parent or its designee shall have made the payment described in Section 2.6 and executed and delivered the Ancillary Agreements and the Deeds and Assignments;
(vii) Xxxxxxxx-Xxxxx Global Sales, Inc. (“Xxxxxxxx-Xxxxx”) and Stayton NPI shall deliver have executed an Amended and Restated Pulp Supply Agreement in substantially the same form as set forth in the term sheet attached hereto as Schedule 6.1(a)(vii);
(viii) Seller will provide Purchaser with a certificate confirming WSIB Purchase Certificate for Seller’s WSIB account, or if Seller has more than one WSIB Account, a WSIB Purchase Certificate for each of Seller’s WSIB Accounts, relieving the samePurchaser of any obligation for Seller’s financial liability to the WSIB up to the Time of Closing; and
(ix) Seller will provide Purchaser with certified copies of the Resolutions and notices and other documents referred to in Section 5.3(c).
(b) Stayton shall have performed, observed and complied in all material respects with all covenants, agreements and conditions required by this Agreement In case any term or covenant of Seller or condition to be performed, observed and performed or complied with by Stayton as for the benefit of Closing. Purchaser shall have received all documents required to be delivered under (including, without limitation those set forth in Section 8.3.
(c6.3 below) Excluding any waiting periods required for Licensing Approvals, all waiting periods specified by Law, including waiting periods under the HSR Act, the passing of which is necessary for consummation of the transactions contemplated by this Agreement, shall have expired at or terminated.
(d) The Court shall have entered (i) the Auction Order and (ii) the TIC Orders and.
(e) The Sale Approval Order approving the sale of the Properties to Purchaser, the TIC Orders, the Consolidation Order and the Order of the Court confirming the Reorganization Plan shall each have been entered by the Court and shall not have been stayed and shall not be subject to any pending appeals provided, that if all other conditions to Purchaser's obligation to Close shall have been met, and if there shall be pending any such appeal, in such event Purchaser shall, within three Business Days prior to the Scheduled Time of Closing Date, either (i) waive such condition and forthwith proceed has not been performed or complied with at or prior to the Time of Closing, (ii) defer the Closing with respect to one or more of the Properties affected by such appeal in accordance with Section 8.6 or (iii) terminate Purchaser, without limiting any other right that Purchaser has, may rescind this Agreement with respect by notice to all of the Properties in which case Purchaser shall be entitled to return of the Deposit but not be entitled to receive the Break-Up Fee or the Expense Reimbursement, in which case, neither Stayton nor Purchaser shall have Seller without any further rights or obligations hereunder, except as provided herein.
(f) The Effective Date shall have occurred and at least 42 days have passed since the entry of the Sale Approval Order.
(g) Stayton shall have delivered to Purchaser currently effective certificates of liability insurance, the premiums for which have been paid on the monthly basis, and otherwise on the same terms and conditions as are described in Section 4.1(q) with respect to the liability insurance for as long as Stayton owns or manages the Property and the tail insurance required by Section 5.1(l).
(h) Purchaser shall have received from Stayton its agreement to defend, indemnify and hold harmless Purchaser, Blackstone Venture Member, Columbia Pacific, Emeritus and their respective Affiliates from and against all loss, liability, expense and damage arising out of the Tort Liabilities and Reimbursement Obligations.
(i) Except for the discrepancies agreed to by Purchaser as described in Exhibit O-10, each of the Existing Real Property Loans and Existing Personal Property Loans shall have been modified in accordance with the Modification Schedule; provided, however, in the event that all other modifications required by the Modification Schedule have been satisfied, but the Actual Rate is greater than the Underwritten Rate, this Section 7.1(i) shall nevertheless be deemed satisfied subject to Section 2.5(b) and the Cash Consideration Amount shall be adjusted accordingly pursuant to Section 2.5(a)(ii). In the event of a failure of this Section 7.1(i) with respect to one or more of the Existing Real Property Loans (each a “Failed Loan Modification”), Purchaser shall have the right to (i) terminate this Agreement with respect to the Properties related to any such Failed Loan Modification and (A) such Properties shall be deemed excluded from the transactions contemplated obligation under this Agreement and (B) the aggregate Cash/Equity Portion of the Purchase Price shall be reduced by the Allocated Cash/Equity Portion of the Purchase Price applicable to such excluded Properties and (C) Purchaser shall not assume the Existing Loans related to such excluded Properties. Notwithstanding the foregoing termination right, in the event that the Properties excluded as a result of this Section 7.1(i) shall exceed ten (10), then Purchaser shall only have the right to terminate the Agreement with respect to all of the Properties. In the event that Purchaser terminates this Agreement with respect to all of the Properties as a result of a failure of this Section 7.1(i), Purchaser shall be entitled to the return of the Deposit and Stayton shall be required to pay to Purchaser $3,000,000 in immediately available funds, in which case, neither Seller nor Purchaser shall have any further rights or obligations hereunder except as otherwise provided herein.
(j) Stayton shall have, at its own cost, terminated (i) the Sunwest Affiliate Contracts, (ii) all Operating Contracts other than the Assumed Operating Contracts and (iii) all Management Agreements, and the party thereto shall have surrendered possession and Stayton shall have provided evidence of such termination reasonably satisfactory to Purchaser.
(k) There shall be at least 114 Purchaser Licensed Properties representing not less than 85 percent of the Allocated Purchase Price (the "Minimum Licensing Threshold"); provided, however, Purchaser Licensed Properties which (i) are subject to an Unsatisfied Closing Condition or (ii) are subject to Existing Real Property Debt waive compliance with any other Property for which Purchaser such term, covenant or Purchaser's Manager has not received all Licensing Approvals and an Interim Operating Agreement is not permitted by law to condition in whole or in part on such terms as may be entered into with respect to such other Property, shall not be included in the total when determining whether the Minimum Licensing Threshold has been satisfiedagreed upon.
(l) With respect to the Closing of any Deferred Property (Licensing), Purchaser or Purchaser's Manager shall have received all Licenses necessary to own and operate such Deferred Property (Licensing) in compliance with Law.
(m) Sellers shall have delivered to Purchaser true and correct copies of validly existing certificates of occupancy with respect to each Property or evidence reasonably acceptable to Purchaser that no certificate of occupancy is required by applicable Law.
(n) The following title and survey matters shall be satisfied:
(i) With respect to each of the Deficient Ground Lease Properties, Stayton shall deliver an original (i) memorandum of lease, duly executed by the applicable ground lessor and ground lessee and (ii) a non-disturbance agreement duly executed by the applicable ground lessee and fee mortgagee (if any), providing that the lessee’s leasehold interest shall not be disturbed so long as the lessee is not in default of the applicable Ground Lease, in each case in recordable form and reasonably acceptable to Purchaser and the Title Company.
(ii) With respect to each of the Required Title Option Properties, the third party holding the applicable right/option shall not have exercised such right/option and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company of such rejection or effective deemed rejection (including copies of all notices and agreements related thereto).
(iii) With respect to each of the Required Title Consent Properties, the third party holding the applicable consent right shall have granted its consent and Stayton shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such consent has been granted or effectively deemed granted (including copies of all notices and agreements related thereto).
(iv) With respect to each of the Required Title Notice Properties, Stayton shall have timely delivered the required notices (in forms reasonably approved by Purchaser) and shall deliver evidence reasonably acceptable to Purchaser and the Title Company that such notices have been properly delivered (including copies thereof and correspondence related thereto).
(v) The Title Company shall be unconditionally prepared, subject only to the payment of the applicable title insurance premium and other related charges, to issue to Purchaser with respect to each parcel of Real Property an Owner's Title Policy, insuring that title to such parcel of Real Property is vested in Purchaser and subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions. For purposes of this Agreement, the term "Owner's Title Policy" shall mean a 2006 ALTA Owner's Form of title insurance policy (or comparable form in states in which the ALTA form is not available) in the amount of the Purchase Price, insuring Purchaser's title to such Property, subject only to the Assumed Mortgages, Resident Agreements, Assumed Unexpired Leases, Assumed Operating Contracts and those matters defined as Permitted Exceptions, together with the following endorsements (to the extent that such endorsements are available in the state in which the Property is located): (a) "land same as survey" (survey matches legal title); (b) contiguity (if applicable); (c) separately assessed tax parcel; (d) comprehensive ALTA 9.2 (T19.1 in Texas); (e) creditor's rights exclusion deletion; (f) subdivision, (g) zoning-improved property, with parking, (h) EPA lien endorsement, (i) leasehold (if applicable), (j) access and (k) address/location of improvements.
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