Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion: (a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3. (b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder. (c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date. (d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions. (e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 6 contracts
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania New Jersey basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party.
(f) Purchaser and Seller shall have complied with the New Jersey Bulk Sale Law, N.J.S.A. 54:50-38, and shall have received from the State of New Jersey, Department of the Treasury, Division of Taxation, either an Escrow Letter (stating the amount of money to be held in escrow at Closing) or a Clearance Letter (stating that the bulk sale case has been closed, no money is to remain in escrow, and the Purchaser is absolved from liability under the Bulk Sale Law). If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 4 contracts
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser Escrow Agent all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or modifications not materially adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, Purchaser shall have received a marked Title Commitment for the Property from the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject identifying only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsB attached thereto.
(e) Closing No legal action shall simultaneously take place between KPG Purchasers and M-C Sellers under all be pending or threatened in writing seeking to challenge or restrain the transaction contemplated hereunder.
(f) After expiration of the Other P&S Agreements, unless such failure Evaluation Period and prior to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser no Major Tenant shall have become insolvent, made a general assignment for the right benefit of creditors, filed a petition for bankruptcy or commenced any other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any debtor relief laws, or had any involuntary case, proceeding or other action commenced against it that seeks to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligationshave any order for relief entered against it, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderas debtor, under any debtor relief laws.
Appears in 3 contracts
Samples: Sale Agreement (Mack Cali Realty L P), Sale Agreement (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser or deposited with the Escrow Agent, as the case may be, all of the items required to be delivered by Seller to Purchaser or deposited with the Escrow Agent by Seller pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this Agreementas the context shall require and not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount No proceeding for exercise of the Purchase Price power of eminent domain with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller any part thereof shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsthen be pending.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of No proceeding to change the Other P&S Agreements, unless such failure to close thereunder is due to zoning or other land use regulations affecting the bad faith and intentional acts of Purchaser Property or any KPG part thereof, except as may be initiated by Purchaser intended (provided, however, that notwithstanding the foregoing, Seller shall not be deemed to impede Closing have consented to, or approved of, any such initiation or action by Purchaser), shall then be pending.
(f) There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller that would materially adversely affect Seller's ability to perform its obligations under this Agreement.
(g) There shall exist no pending or threatened action, suit or proceeding with respect to Seller or the Property before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a breach of any material covenant of Purchaser under discovery order with respect to, this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund consummation of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereundertransaction contemplated hereby.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Town & Country Trust), Purchase and Sale Agreement (Town & Country Trust), Purchase and Sale Agreement (Town & Country Trust)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania New York basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 2 contracts
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser by Seller pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.4.2 hereof;
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunderDate.
(c) Seller shall have satisfied the Estoppel Condition (defined below);
(d) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.date of Closing;
(de) At or prior to ClosingThe Title Company, the Title Company and/or another national title company approved by Purchaser in its reasonable discretion shall be prepared, or First American irrevocably prepared to issue its 2006 ALTA Owner's Policy of Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared(with an extended coverage endorsement, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any those endorsements required to cure title exceptions that Seller is obligated to cure pursuant to Section 2.2 or Section 2.3 and the endorsements requested by Purchaser or its lenderto the extent customarily available) covering the Real Property, in the aggregate amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing DatePrice, subject only to the Permitted Exceptions (the "Title Policy"); and
(f) Seller shall not have been adjudged bankrupt nor filed a voluntary petition or had a petition filed against it by its creditors or made any assignment for the benefit of creditors. If any of the conditions to Purchaser's obligations under Section 4.6 shall fail to occur, and the standard printed exceptions on such policy, upon the fulfillment failure is not otherwise a default by Seller under this Agreement (in which event Purchaser would be afforded the rights under Section 5.2 hereof), then Purchaser may, as its exclusive remedies, either (i) elect to waive such failure and proceed to Closing, or (ii) as long as Purchaser of the Schedule B, Section I requirementsis not in default hereunder, and as its sole and exclusive remedy, terminate this Agreement by written notice to Seller, in which event the payment by Deposit shall be promptly returned to Purchaser and neither party shall have any further rights or obligations hereunder (except for those obligations of either party that expressly survive the requisite premiumtermination of this Agreement pursuant to the other provisions of this Agreement). Notwithstanding the foregoing, in the event any condition to Purchaser's obligations hereunder described in this Section 4.6 shall not have been satisfied, Seller shall have the right (but not the obligation) to arrange for First American Title Insurance Company’s National Office attempt to become involved in cure or satisfy such title decisions.
(e) Closing condition and the Seller shall simultaneously take place between KPG Purchasers and M-C Sellers under all be entitled to a reasonable adjournment of the Other P&S Agreements, unless such failure Closing Date not to close thereunder is due exceed five (5) business days in order to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderdo so.
Appears in 2 contracts
Samples: Sale Agreement (Atlas Financial Holdings, Inc.), Sale Agreement (Atlas Financial Holdings, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject (a) Notwithstanding anything to the fulfillment contrary in this Contract, on or before the Closing Date of all of Date, Purchaser’s obligations under this Contract are expressly contingent on the following conditions, any or all of which may be waived by Purchaser in its sole discretionbeing true and correct:
(ai) Seller shall have delivered to Purchaser Escrow Agent all of the items required to be delivered to Purchaser Escrow Agent pursuant to Section 10.1 or otherwise required by the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.Contract;
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(cii) Seller shall have performed and observedperformed, in all material respects, all covenants and agreements of this Agreement the Contract to be performed and observed by Seller as of the that Closing Date.;
(diii) At or prior to Closing, the The Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to the Purchaser a standard Pennsylvania basic ownertitle policies subject only to the Permitted Exceptions;
(iv) All of Seller’s title insurance policy representations shall be true and correct in all material respects;
(without regard to any endorsements required by Purchaser or its lenderv) in the amount of the Purchase Price with respect There has been no material adverse change to the Property pursuant from the expiration of the Due Diligence Period to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and . Material adverse change shall mean: (i) a change that prohibits the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser existing use or operation of the Schedule B, Section I requirements, and Property; or (ii) the payment by Purchaser termination of the requisite premium. GSA Lease;
(vi) The GSA Lease shall be free from any material default on the part of Seller or the GSA Tenant; and
(vii) Seller shall have obtained and delivered to Purchaser an estoppel certificate from each party entitled to enforce any restrictive covenant or easement encumbering the right to arrange for First American Title Insurance Company’s National Office to become involved Property, which estoppel certificate shall be in such title decisionsform as may be reasonably required by the party providing same;
(viii) There shall not have been filed, by or against Seller a petition in bankruptcy or a petition or answer seeking an assignment for the benefit of creditors, the appointment of a receiver, trustee, liquidation or dissolution or similar relief under the U.S. Bankruptcy code or any other Law, which has not been dismissed by the earlier of (i) Closing or (ii) sixty (60) days following the date filed; and
(ix) No order of any court or administrative agency shall be in effect against Seller which restrains or prohibits the transaction contemplated hereby, and no suit, action, inquiry investigation or proceeding in which it is likely to be, or it is, sought to (x) restrain, prohibit or change the terms of the transaction contemplated hereby, or (y) obtain material damages or other relief from Seller or Purchaser in connection with this Contract or the transaction contemplated hereby (other than a suit among one (1) or more of the parties hereto on the basis of this Contract) shall have been instituted, which if adversely determined would have a material adverse effect upon Seller or the Property.
(eb) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under If for any reason Seller is unable to satisfy all of the Other P&S Agreements, unless such failure to close thereunder is due to conditions of Closing by the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before ClosingDate, Purchaser shall have the right to delay closing for up to thirty (30) days to give Seller an opportunity to satisfy such conditions or to waive the closing condition and close. If Seller cannot satisfy such conditions within this additional period, notwithstanding anything else in this Contract, Purchaser may waive the closing condition and close, without a reduction in the Purchase Price, or terminate this Agreement and receive a refund of Contract, in which case the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void returned to Purchaser and the parties shall have no be released from all further obligations to each and liabilities hereunder, other hereunderthan those which expressly survive termination of this Contract.
Appears in 2 contracts
Samples: Contract of Sale (US Federal Properties Trust Inc.), Contract of Sale (US Federal Properties Trust Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller The Lender shall have delivered to Purchaser all acknowledged in writing that the transfer of the items required to Property contemplated in this Agreement shall:
(i) be delivered to Purchaser pursuant to in conformity with Section 8.5 of the terms Mortgage Loan Agreement; and,
(ii) not be a default under the Mortgage Loan Agreement; or,
(iii) not result in the application of this any provision of Section 18.1.2 of the Mortgage Loan Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All The Seller shall have achieved a restructuring of the Mortgage Indebtedness substantially on the terms and conditions set forth on Exhibit M attached hereto.
(c) The Operator and the Employment Company (as applicable) shall:
(i) have waived its rights of first offer and first refusal under Section 17.4 of the Hotel Management Agreement; and
(ii) have provided an estoppel instrument in favor of the New Operating Tenant in the form attached as Exhibit N acceptable to Purchaser (the “Hotel Agreements Estoppel”) with respect to (i) the Hotel Agreements, (ii) Bar Agreement, (iii) Restaurant Agreement, and (iv) the Golf Agreement.
(d) The Seller shall have provided an estoppel in favor of the New Hotel Owner and New Operating Tenant in the form attached as Exhibit O acceptable to Purchaser (the “Seller Estoppel”) with respect to the (i) Ground Lease, (ii) Golf Agreement, (iii) Bar Agreement, and (iv) Restaurant Agreement.
(e) The Master Partnership shall have purchased the Mezzanine Indebtedness.
(f) The representations and warranties set forth in Section 4.1 hereof shall be true and correct.
(g) There shall be no action, suit, arbitration, unsatisfied order or judgment, government investigation or proceeding pending which, if adversely determined, could individually or in the aggregate materially interfere with the consummation of the transaction contemplated by this Agreement.
(h) Purchaser shall have received confirmatory environmental and structural third-party reports showing no material adverse changes from the reports received by SHR in 2006.
(i) The Title Company shall have committed to issue the Title Policy pursuant to Section 2.4 subject to the payment of any fees and expenses with respect to the Title Commitment and Title Policy (to be allocated as set forth in Section 3.8).
(j) Seller shall have performed in all material respects the covenants then to have been performed by Seller under this Agreement.
(k) There shall be no condemnation or other proceeding in eminent domain pending or threatened affecting the Property or any portion thereof.
(l) There shall be no: (i) existing violation of any applicable law with respect to the Property or the operation of the Hotel, (ii) administrative proceeding, investigation or inquiry pending or threatened with respect to any violation of any applicable law with respect to the Property or the operation of the Hotel, in either event which has or could have a material adverse effect on Purchaser’s ownership or operation of the Hotel.
(m) There shall be no: (i) litigation, arbitration, administrative or other adjudicatory proceeding or legal action pending or threatened, with respect to the Property or the operation of the Hotel, (ii) court filing, formal written charge or complaint or written request for arbitration, mediation, administrative hearing or similar legal or quasi-legal proceeding with respect to the Property or the operation of the Hotel, and (iii) no injunction, decree, order, writ or judgment outstanding with respect to the Property or the operation of the Hotel, in any event which has or could have a material adverse effect on Purchaser’s ownership or operation of the Hotel.
(n) Seller shall not have filed any petition in bankruptcy or other insolvency proceedings or proceedings for reorganization of Seller contained or for the appointment of a receiver or trustee for all or any substantial part of the Property, nor shall Seller have made any assignment for the benefit of its creditors or filed a petition for an arrangement, or entered into an arrangement with creditors or filed a petition for an arrangement with creditors or otherwise admitted in this Agreement writing its inability to pay its debt as they become due.
(o) The financial statements for the years ended December 2007 through December 2010 and year-to-date financial statements from January through April 2011, provided to Purchaser with respect to the Hotel shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunderrespects.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Strategic Hotels & Resorts, Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser or deposited with the Escrow Agent, as the case may be, all of the items required to be delivered by Seller to Purchaser or deposited with the Escrow Agent by Seller pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this Agreementas the context shall require and not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount No proceeding for exercise of the Purchase Price power of eminent domain with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller any part thereof shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsthen be pending.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of No proceeding to change the Other P&S Agreements, unless such failure to close thereunder is due to zoning or other land use regulations affecting the bad faith and intentional acts of Purchaser Property or any KPG part thereof, except as may be initiated by Purchaser intended (provided, however, that notwithstanding the foregoing, Seller shall not be deemed to impede Closing have consented to, or a breach approved of, any such initiation or action by Purchaser), shall then be pending.
(f) There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller that would materially adversely affect Seller's ability to perform its obligations under this Agreement.
(g) There shall exist no pending or threatened action, suit or proceeding with respect to Seller or the Property before or by any material covenant of Purchaser under court or administrative agency which seeks to restrain or prohibit this Agreement or any KPG Purchaser under the other P&S Agreements consummation of which the transaction contemplated hereby or the operation or use of the Property as it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement now operated and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderused.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Town & Country Trust), Purchase and Sale Agreement (Town & Country Trust)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.4.3 hereof and the representation letter provided for in Section 10.16 hereof;
(b) All all of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance date of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.;
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.date of Closing;
(d) At or prior to Closing, Seller have entered into the Lease with Purchaser for the Property in the form attached hereto as Exhibit I;
(e) the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to and irrevocably commit committed to issue to Purchaser the Title Policy and any Lender's policy and all endorsements Purchaser or Lender may request in an amount equal to the Purchase Price/Loan;
(f) the physical condition of the Property shall be substantially the same on the Closing Date as on the Effective Date, reasonable wear and tear excepted;
(g) no proceeding shall have been commenced against Seller under the federal Bankruptcy Code or any state law for relief of debtors;
(h) the financial condition of the Seller on the Closing Date shall not have changed in a standard Pennsylvania basic owner’s title insurance policy material adverse manner from the Effective Date;
(without regard to i) no moratorium, statute or regulation of any endorsements required by governmental agency or order or ruling of any court shall have been enacted, adopted, or issued which would have a material adverse affect on Purchaser's use or development of the Property; and
(j) Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a markedsuccessor-up title commitment or a proin-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, interest have closed upon the fulfillment by Seller and Purchaser funding of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsits Initial Public Offering.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (BioMed Realty Trust Inc), Purchase and Sale Agreement (Illumina Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance date of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or Unless the Approved Lease states otherwise, Seller shall have terminated all contracts, leases and agreements (other than this Agreement, the documents executed and delivered at Closing pursuant to this Agreement, including, without limitation, the Approved Lease, if applicable, and the Permitted Exceptions) which relate, in any way, to the Land and/or Improvements, including, without limitation, any management agreements, brokerage agreements and service contracts relating to the Property, which termination shall be effective no later than the date prior to the Closing Date. Notwithstanding the foregoing, provided Seller and Purchaser execute the Approved Lease as contemplated in Section 3.3, Seller shall be permitted to enter into contracts and agreements with vendors, as tenant of the property, following the Closing, subject, however, to Purchaser’s review and approval of such contracts or agreements, and subject to the terms and conditions of the Approved Lease.
(e) At Closing, there shall be no administrative agency, litigation or governmental proceeding of any kind whatsoever, pending or threatened, that, after Closing, would, in Purchaser’s judgment adversely affect the value or marketability of the Property or Seller’s ability to perform its obligations under this Agreement.
(f) There shall be no proceeding pending by or against Seller under the Federal Bankruptcy Code or any similar law.
(g) The Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if have delivered to Purchaser the Title Company is not so preparedPolicy, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) covering the Property in the full amount of the Purchase Price with respect to and containing only the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsExceptions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Syms Corp), Purchase and Sale Agreement (Syms Corp)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which which, other than the condition set forth in Section 9.1(g), may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser Escrow Agent all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not materially adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior The estoppel letters required to Closing, be delivered at Closing pursuant to this Agreement shall have been obtained and delivered and shall reflect no facts at material adverse variance with the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if facts disclosed in the Title Company is not so prepared, to irrevocably commit to issue Leases and any related correspondence provided to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) during the Evaluation Period in the amount of the Purchase Price accordance with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions5.2 hereof.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all Except for those matters of which Seller has given written notice to Purchaser or with respect to which Purchaser otherwise had knowledge prior to the end of the Other P&S AgreementsEvaluation Period, unless such failure on the Closing Date, there shall be (i) no pending litigation seeking to close thereunder is due enjoin the consummation of the sale and purchase hereunder and (ii) no pending or threatened litigation to recover fee title to the bad faith and intentional acts of Purchaser Property, or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement part thereof or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, interest therein.
(f) Purchaser shall have received a marked Title Commitment from the right Title Company identifying only Permitted Exceptions on the Schedule B attached thereto and with (i) the standard exception for parties in possession modified to terminate this Agreement refer only to parties in possession as tenants or licensees under Leases set forth on a schedule attached thereto, which schedule shall correspond to the Lease Schedule delivered to Purchaser at Closing, (ii) the standard pre-printed exceptions as to unrecorded easements, visible and receive a refund apparent easements, public or private roadways, or other matters which would be disclosed by an inspection of the Xxxxxxx Money Deposit Property deleted (if Purchaser has obtained an Updated Survey of the relevant Project that is satisfactory to the Title Company), and interest earned thereon (iii) with the standard exception as to mechanic's, materialmen's or similar liens or other matters relating to the completion of construction and except payment of bills with respect to thereto deleted.
(g) Neither the Termination Surviving Obligations, this Agreement Project located at the Monticello Property nor the Project located at the Republic Property shall be null and void and the parties shall have no further obligations to each other hereunderan Affected Project.
Appears in 2 contracts
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp), Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate effect the transaction hereunder Contemplated Transactions shall be subject to the fulfillment on satisfaction (or before waiver by Purchaser) at or prior to the Closing Date of all of the following additional conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser performed in all of the items material respects Seller’s obligations under this Agreement required to be delivered to Purchaser pursuant performed by Seller at or prior to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.Closing Date;
(b) All of with respect to those representations and warranties qualified by any materiality standard, the representations and warranties of Seller contained in this Agreement shall be true and correct in all respects, and with respect to all other representations and warranties, such representations and warranties shall be true and correct in all material respects respects, in each case as of the date of this Agreement and at and as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations as if made at and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.;
(c) no event, occurrence, fact, condition, change, development or effect shall have occurred, exist or come to exist since the date of this Agreement, including, without limitation, any of the foregoing reflected by the updated Seller Disclosure Schedule, that, individually or in the aggregate, has constituted or resulted in, or would reasonably be expected to constitute or result in, a Seller Material Adverse Effect;
(d) At or prior subject to ClosingSection 2.3, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have obtained all approvals, clearances, consents, authorizations and waivers from third parties necessary for the right to arrange for First American Title Insurance Company’s National Office to become involved consummation of all of the Contemplated Transactions, including, without limitation, all of the foregoing listed in such title decisions.Section 2.3 of the Seller Disclosure Schedule;
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have be satisfied in its sole and absolute discretion with the right to terminate this Agreement results of its due diligence review and receive a refund examination of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Seller and the parties Business; and
(f) Seller and Xxxxx, Inc. shall have no further obligations delivered to each other hereunderPurchaser all the items required to be delivered by them pursuant to Sections 1.5(a), 1.5(c) and 1.5(f) of this Agreement.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate effect the transaction hereunder transactions contemplated by this Agreement shall be subject to the fulfillment on satisfaction at or before prior to the Closing Date of all of the following conditions, any additional conditions (compliance with which or all the occurrence of which may be waived in whole or in part in a writing executed by Purchaser, unless such a waiver is prohibited by law):
(a) All Encumbrances on and secured by the Assets shall have been fully released or satisfied and paid on, by, or through Closing;
(b) Purchaser shall have obtained financing for the acquisition of the Assets provided for herein and for the funding of the Purchase Price to be paid in connection therewith in such amount and upon such terms and from such Persons as Purchaser may approve in its sole discretion:;
(ac) Seller and Owner shall have delivered to Purchaser complied with and performed all of the items their respective agreements and obligations under this Agreement that they are each required to be delivered to Purchaser pursuant perform at or prior to the terms of this AgreementClosing Date, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller and Owner contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closingrespects, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller Purchaser shall have performed received a certificate signed by a duly authorized officer of Seller and observed, in all material respects, all covenants and agreements signed by Owner as to the satisfaction of this Agreement to be performed and observed by Seller as of the Closing Date.condition;
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller Owner shall have the right all duly executed and delivered each Transaction Document to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.which they are each a party;
(e) Closing all required Consents or other authorizations from any Person shall simultaneously take place have been obtained;
(f) the transactions contemplated by the Real Estate Purchase and Sale Agreement of even date herewith and entered into by and between KPG Purchasers , as seller, and M-C Sellers under , as purchaser, which provides that the foregoing purchaser shall purchase the Property, shall have been closed pursuant to and in compliance with the terms thereof;
(g) there shall have been no material adverse change in the Business, the Assets, or the Assumed Liabilities since the date of this Agreement;
(h) all of full and part time veterinarians employed by Seller (including Owner) for the Other P&S Agreements, unless Business shall have entered into an employment agreement with Purchaser (such failure employment agreement to close thereunder is due contain such term as are acceptable to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived approved by Purchaser on or before Closing, in its sole discretion);
(i) Purchaser shall have determined to its satisfaction and in its sole discretion that (i) a veterinary clinic and/or hospital is permitted to operate at the right Property, (ii) all necessary planning and zoning designations, approvals, conditions, and permits have been obtained for the Property to terminate allow Purchaser and/or any tenant of Purchaser to use the Property for operation of a veterinary clinic and/or hospital, and (iii) the planning and zoning designations, approvals, conditions, and permits for the Property are acceptable to Purchaser, as determined in its sole discretion;
(j) no Legal Proceeding or other proceeding shall have been commenced before any Person against Purchaser, Seller, or Owner seeking to restrain or materially and adversely alter the transactions contemplated by this Agreement and receive a refund Agreement; and
(k) no law or preliminary or permanent injunction shall have been enacted, entered, promulgated, or enforced by any Person that prohibits, restrains, enjoins, or restricts the consummation of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, transactions contemplated by this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderAgreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Inspire Veterinary Partners, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania Connecticut basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate effect the transaction hereunder Contemplated Transactions shall be subject to the fulfillment on satisfaction at or before prior to the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller Sellers shall have delivered to Purchaser performed in all of the items material respects its obligations under this Agreement required to be delivered to Purchaser pursuant performed by it at or prior to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of Closing Date; the representations and warranties of Seller Sellers contained in this Agreement that are qualified as to materiality or as to Material Adverse Change shall be true and correct in all respects and the representations and warranties that are not so qualified shall be true and correct in all material respects respects, in each case as of the Effective Date and as of the Closing Date as if made at and as of such date; and Purchaser shall have received a certificate of an authorized officer of Sellers as to the satisfaction of this condition;
(with appropriate modifications permitted b) No material Permits shall have been revoked or, to the extent applicable, shall have failed to have been transferred to Purchaser subject to no additional restrictions or burdens on the permittee other than those which, in the aggregate, are immaterial;
(c) Sellers shall have obtained all of the material Sellers’ Required Approvals;
(d) The Bidding Procedures Order and the Sale Order shall have been entered by the Bankruptcy Court in form and substance acceptable to Purchaser in its sole discretion, and such Orders shall have become Final Orders
(e) The Customer Incentive Programs Order shall have been entered by the Bankruptcy Court in form and substance acceptable to Purchaser in its reasonable discretion and shall have become a Final Order, and Sellers shall have paid and discharged all pre-Petition Customer Obligations under this Agreementthe existing Customer Incentive Programs (as defined in the Customer Incentive Programs Order). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 ;
(f) and (g) may be modified at Closing Sellers shall have delivered to reflect changes in Purchaser the identity of the Tenants and the Leases (that are not in violation of the operating covenants documents set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.3.2; and
(cg) Seller There shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of been no Material Adverse Change since the Closing Effective Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Proxymed Inc /Ft Lauderdale/)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2 hereof.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At Purchaser shall have received the “Tenant Estoppel” (as hereafter defined) from the following major tenant (a “Major Tenant”): Noble Rents, Inc. (the “Estoppel Delivery Requirement”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, all executed Tenant Estoppels shall be deemed acceptable for purposes of satisfying the condition set forth in this Section 4.7(d) unless such Tenant Estoppel (i) materially deviates from the form required under Section 5.4 or discloses any material adverse matters that were not disclosed to Purchaser prior to the expiration of the Inspection Period, (ii) alleges a material default of either party under the applicable lease, (iii) fails to confirm that the Lease is in full force and effect or (iv) is dated earlier than thirty (30) days prior to the date of the initially-scheduled Closing. If a Tenant Estoppel includes any of the items described in clause (i) through (iv) of the preceding sentence, the Title Company then Purchaser shall approve or reasonably disapprove such Tenant Estoppel within two (2) business days after receipt thereof (and Purchaser’s failure to respond within such two (2) business day period shall be prepared, or First American Title Insurance Companydeemed to be Purchaser’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount approval of the Purchase Price with respect to the Property pursuant to a marked-up title commitment applicable Tenant Estoppel). If on or a pro-forma policy effective as of before the Closing Date, subject only to Permitted Exceptions the Estoppel Delivery Requirement is not satisfied (or waived by Purchaser), Seller shall not be in default hereunder and the standard printed exceptions on such policythis Agreement shall terminate (and no party hereto shall have any further obligation in connection herewith except under those provisions that expressly survive a termination of this Agreement); provided, upon the fulfillment by however, that each of Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the unilateral right (at its option) to arrange extend the period for First American Title Insurance Company’s National Office satisfying the condition set forth in this Section 4.7(d) (and, accordingly, the Closing Date) to become involved a date not later than thirty (30) days following the original Closing Date in order to satisfy such title decisionscondition.
(e) The closings under (i) that certain Purchase and Sale Agreement by and between Purchaser and LBA/Met Partners I-Company II, LLC, a Delaware limited liability company (“Company II”) of even date herewith (the “Company II Agreement”), (ii) that certain Purchase and Sale Agreement by and between Purchaser and LBA/Met Partners I-Company V, LLC, a Delaware limited liability company (“Company V”) of even date herewith (the “Company V Agreement”) and (iii) that certain Purchase and Sale Agreement by and between Purchaser and LBA/Met Partners I-Company IX, LLC, a Delaware limited liability company (“Company IX”) of even date herewith (the “Company IX Agreement”, and together with the Company II Agreement and the Company V Agreement, collectively, the “Seller Affiliate Agreements”) shall occur concurrently with the Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of contemplated hereunder; provided, however, in the Other P&S Agreements, unless such failure to close thereunder event that the condition set forth in this Section 4.7(e) is not satisfied due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach termination of any material covenant Seller Affiliate Agreement or portion thereof pursuant to the provisions of Section 7 thereunder, Purchaser under shall not be entitled to terminate this Agreement and Purchaser shall proceed with the Closing contemplated hereunder notwithstanding the non-satisfaction of this Section 4.7(e); further provided that in the event that (x) the Company II Agreement is terminated pursuant to Section 7 thereof with respect to the Zanker Business Center Property or (y) the Company IX Agreement is terminated pursuant to Section 7 thereof with respect to the LBA Logistics Center Property or (z) this Agreement or any KPG Purchaser under Seller Affiliate Agreement is terminated pursuant to Section 7 of the other P&S Agreements of which it is a party. If the conditions precedent applicable agreements with respect to Closing under two (2) or more individual properties described in this Section 9.1 are not satisfied Agreement or waived by Purchaser on any Seller Affiliate Agreement, or before Closingany combination thereof, as applicable, then Purchaser shall have the a right to terminate this Agreement and receive all Seller Affiliate Agreements as a refund failure of the Xxxxxxx Money Deposit condition set forth in this Section 4.7(e).
(f) Title Company shall be irrevocably committed to issue to Purchaser a title policy in the form of a pro forma title policy (the “Pro Forma Owner’s Policy”) previously reviewed and interest earned thereon and except with respect approved by Purchaser, subject only to the Termination Surviving Obligations, this Agreement payment of the premium therefor. Purchaser shall cause a copy of the Pro Forma Owner’s Policy to be null and void and delivered to Seller prior to the parties shall have no further obligations to each other hereunderexpiration of the Inspection Period.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Property Trust Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate effect the transaction hereunder transactions contemplated by this Agreement shall be subject to the fulfillment satisfaction or waiver on or before prior to the Closing Date of all of the following additional conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) NAP and each Seller shall have delivered to Purchaser performed in all of the items material respects its obligations under this Agreement required to be delivered to Purchaser pursuant performed by NAP and each Seller on or prior to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.Closing Date;
(b) All Except for such inaccuracies or omissions, the consequence of which do not individually or in the aggregate constitute a Material Adverse Effect, each of the representations and warranties of NAP and the Seller contained in this Agreement shall be true and correct in all material respects as if made on and as of such date (or, if made as of a specific date, at and as of such date), and NAP and each Seller shall have furnished Purchaser a certificate dated the Closing Date (with appropriate modifications permitted under this Agreement). For certifying the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants conditions set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof 7.3(a) and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in this Section 7.1 above), and any defaults by the service providers thereunder.7.3(b) have been satisfied;
(c) Seller Purchaser shall have performed and observedreceived the consents (or in lieu thereof waivers) listed in Schedule 7.3(c); provided, in however, that if any of the agreements listed on Schedule 7.3(c) are non-transferable according to their terms, then Purchaser shall not be required to receive consent to their assignment; and, further provided, that if all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the consents listed on Schedule 7.3(c) have not been received on or before the Closing Date., the parties agree that notwithstanding anything to the contrary contained in this Agreement, if Purchaser does not waive the conditions set forth in this Section 7.3(c) with respect to any and all such consents not so received, then the Closing Date shall be extended to a date mutually acceptable to the parties not later than the forty-fifth (45th) day next following the Closing Date to enable Seller to satisfy the conditions contained in this Section 7.3(c);
(d) At or Purchaser shall have received certificates issued by the appropriate Governmental Entities evidencing the good standing of each Seller as of a recent date (no more than ten (10) days prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lenderClosing Date) in the amount State of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.Delaware;
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date (or earlier as set forth below) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser Title Company all of the items required to be delivered to Purchaser Title Company pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2 hereof.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance CompanySeller’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy current lender (without regard to any endorsements required by Purchaser or its lender“Lender”) in the amount of the Purchase Price with respect to for both the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment adjacent property owned by Seller and Purchaser commonly known as 0000 Xxxxxxxxxx Xxx, Xxxxxx, Xxxxxxxx (the “Adjacent Property”) shall have consented to, and shall have agreed to subordinate the lien of its deed of trust encumbering the Adjacent Property to, the Parking Easement Agreement and the Declaration (collectively, the “Subordination”); provided, however, that in the event that the Lender shall require any revisions to the Parking Easement Agreement and/or the Declaration which would not have a material adverse effect upon (x) Seller or the use, marketability or value of the Schedule BAdjacent Property, Section I requirementseach as determined by Seller in its reasonable discretion, and or (y) Purchaser or the payment use, marketability or value of the Property, each as determined by Purchaser in its reasonable discretion, then the Parking Easement Agreement and/or Declaration shall be amended to incorporate such Lender revisions. In the event of the requisite premium. termination of this Agreement pursuant to this Section 4.7(d) (i.e., because Seller fails to obtain the Subordination), Seller shall have reimburse Purchaser for any actual out-of-pocket expenses reasonably incurred by Purchaser in connection with this Agreement and/or Purchaser’s due diligence for the right Property, in an aggregate amount not to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsexceed One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (the “Break-Up Fee”).
(e) Closing The Lender shall simultaneously take place between KPG Purchasers have modified the documents (collectively, the “Loan Documents”) in connection with the loan encumbering the Property and M-C Sellers under all the Adjacent Property (the “Loan”) to permit the release and sale of the Other P&S AgreementsProperty apart from the Adjacent Property and any other property which is collateral for the Loan. In the event of the termination of this Agreement pursuant to this Section 4.7(e) (i.e., unless such failure because Seller fails to close thereunder obtain the Loan modification), Seller shall pay Purchaser the Break-Up Fee.
(f) The Current Tenant shall have executed and delivered to Purchaser the Tenant Estoppel, in the form and dated as set forth herein, not later than the date which is due seventeen (17) business days after the expiration of the Inspection Period.
(g) There shall not occur any material adverse change to the bad faith financial condition or credit rating of the Current Tenant between the expiration of the Inspection Period and intentional acts of Purchaser or any KPG Purchaser intended the date which is thirty (30) days thereafter. Any obligation to impede Closing or pay a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent Break-Up Fee pursuant to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser 4.7 shall have survive the right to terminate termination of this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderAgreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Core Office Income Reit Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate effect the transaction hereunder transactions contemplated by this Agreement shall be subject to the fulfillment on satisfaction at or before prior to the Closing Date of all of the following conditions, any additional conditions (compliance with which or all the occurrence of which may be waived in whole or in part in a writing executed by Purchaser, unless such a waiver is prohibited by law):
(a) All Encumbrances on and secured by the Assets shall have been fully released or satisfied and paid on, by, or through Closing;
(b) Purchaser shall have obtained financing for the acquisition of the Assets provided for herein and for the funding of the Purchase Price to be paid in connection therewith in such amount and upon such terms and from such Persons as Purchaser may approve in its sole discretion:;
(ac) Seller and Owner shall have delivered to Purchaser complied with and performed all of the items their respective agreements and obligations under this Agreement that they are each required to be delivered to Purchaser pursuant perform at or prior to the terms of this AgreementClosing Date, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller and Owner contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closingrespects, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller Purchaser shall have performed received a certificate signed by a duly authorized officer of Seller and observed, in all material respects, all covenants and agreements signed by Owner as to the satisfaction of this Agreement to be performed and observed by Seller as of the Closing Date.condition;
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller Owner shall have the right all duly executed and delivered each Transaction Document to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.which they are each a party;
(e) Closing all required Consents or other authorizations from any Person shall simultaneously take place have been obtained;
(f) the transactions contemplated by the Real Estate Purchase and Sale Agreement of even date herewith and entered into by and between KPG Purchasers , as seller, and M-C Sellers under IVP FL Properties LLC, as purchaser, which provides that the foregoing purchaser shall purchase the Property, shall have been closed pursuant to and in compliance with the terms thereof;
(g) there shall have been no material adverse change in the Business, the Assets, or the Assumed Liabilities since the date of this Agreement;
(h) all of full and part time veterinarians employed by Seller (including Owner) for the Other P&S Agreements, unless Business shall have entered into an employment agreement with Purchaser (such failure employment agreement to close thereunder is due contain such term as are acceptable to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived approved by Purchaser on or before Closing, in its sole discretion);
(i) Purchaser shall have determined to its satisfaction and in its sole discretion that (i) a veterinary clinic and/or hospital is permitted to operate at the right Property, (ii) all necessary planning and zoning designations, approvals, conditions, and permits have been obtained for the Property to terminate allow Purchaser and/or any tenant of Purchaser to use the Property for operation of a veterinary clinic and/or hospital, and (iii) the planning and zoning designations, approvals, conditions, and permits for the Property are acceptable to Purchaser, as determined in its sole discretion;
(j) no Legal Proceeding or other proceeding shall have been commenced before any Person against Purchaser, Seller, or Owner seeking to restrain or materially and adversely alter the transactions contemplated by this Agreement and receive a refund Agreement; and
(k) no law or preliminary or permanent injunction shall have been enacted, entered, promulgated, or enforced by any Person that prohibits, restrains, enjoins, or restricts the consummation of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, transactions contemplated by this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderAgreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Inspire Veterinary Partners, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate effect the transaction hereunder transactions contemplated by this Agreement shall be subject to the fulfillment on satisfaction at or before prior to the Closing Date of all of the following conditions, any additional conditions (compliance with which or all the occurrence of which may be waived in whole or in part in a writing executed by Purchaser, unless such a waiver is prohibited by law):
(a) All Encumbrances on and secured by the Assets shall have been fully released and/or satisfied and paid on, by, or through Closing;
(b) Purchaser shall have obtained financing for the acquisition of the Assets provided for herein and for the funding of the Purchase Price to be paid in connection therewith in such amount and upon such terms and from such Persons as Purchaser may approve in its sole discretion:;
(ac) Seller Parties shall have delivered to Purchaser complied with and performed all of the items their respective agreements and obligations under this Agreement that they are each required to be delivered to Purchaser pursuant perform at or prior to the terms of this AgreementClosing Date, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller Parties contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closingrespects, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller Purchaser shall have performed received a certificate signed by a duly authorized officer of Seller and observed, in all material respects, all covenants and agreements signed by Owners as to the satisfaction of this Agreement to be performed and observed by Seller as of the Closing Date.condition;
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller Parties shall have the right all duly executed and delivered each Transaction Document to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.which they are each a party;
(e) Closing all required Consents or other authorizations from any Person shall simultaneously take place have been obtained;
(f) the transactions contemplated by that certain Real Estate Purchase and Sale Agreement of even date herewith and entered into by and between KPG Purchasers Owners, as seller, and M-C Sellers under all IVP PA Properties, LLC, as purchaser, which provides that the foregoing purchaser shall purchase the Property, shall have been closed pursuant to and in compliance with the terms thereof;
(g) from January 1, 2023 to and through the Closing, there shall have been no material adverse change (nor shall any event or events have occurred that, individually or in the aggregate, with or without lapse of time, could reasonably be expected to result in a material adverse change) in (i) the business, prospects, results of operations, performance (financial or otherwise), condition (financial or otherwise) or assets (including the Assets) of the Other P&S AgreementsPractice and Seller Parties, unless (ii) the value of the Assets, or (iii) the ability of Seller Parties to consummate the transactions contemplated herein;
(h) All full and part time veterinarians employed by Seller and the Practice (including, without limitation, Owners) shall have entered into an employment agreement with Purchaser (such failure employment agreement to close thereunder is due contain such term as are acceptable to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived approved by Purchaser on or before Closing, in its sole discretion);
(i) Purchaser shall have determined to its satisfaction and in its sole discretion that (i) a veterinary clinic and/or hospital is permitted to operate at the right Property, (ii) all necessary planning and zoning designations, approvals, conditions, and permits have been obtained for the Property to terminate allow Purchaser and/or any tenant of Purchaser to use the Property for operation of a veterinary clinic and/or hospital, and (iii) the planning and zoning designations, approvals, conditions, and permits for the Property are acceptable to Purchaser, as determined in its sole discretion;
(j) no Legal Proceeding or other proceeding shall have been commenced before any Person against Purchaser, Seller, or Owners seeking to restrain or materially and adversely alter the transactions contemplated by this Agreement and receive a refund Agreement; and
(k) no law or preliminary or permanent injunction shall have been enacted, entered, promulgated, or enforced by any Person that prohibits, restrains, enjoins, or restricts the consummation of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, transactions contemplated by this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderAgreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Inspire Veterinary Partners, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) 4.6.1 Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) 4.6.2 All of the representations and warranties of Seller contained in this Agreement Agreement, as they may have been modified pursuant to Section 5.2.2, shall be true and correct in all material respects as of the Closing Date (with appropriate modifications Date, subject to those disclosures permitted under this Agreement). For to be included within the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunderBring-Down Certificate.
(c) 4.6.3 Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
4.6.4 There shall be no damage or loss to the Residential Units in excess of $50,000 in the aggregate; provided, however, in the event of such damage or loss to the Residential Units, and Purchaser gives written notice of such damage or loss to Seller, Seller shall have two (d2) At business days to respond to such (and the Closing Date shall be extended as necessary to allow for Seller to respond to Purchaser’s notice, if at all) and offer to, at Purchaser’s election and to Purchaser’s satisfaction, either (i) promptly repair such damage or loss at Seller’s sole cost and expense, pursuant to plans and specifications approved by Purchaser prior to Closing, the Title Company shall be preparedcommencing such work, or First American Title Insurance Company’s National Office shall (ii) if such damage or loss cannot reasonably be prepared if the Title Company is not so prepared, repaired prior to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only give Purchaser a credit for an amount reasonably estimated by the parties to Permitted Exceptions and the standard printed exceptions on repair such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser damage or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a partyloss. If the conditions precedent Seller fails to Closing under this Section 9.1 are not satisfied or waived by Purchaser give a response on or before Closingsuch date and time, Seller shall be deemed to have elected not to offer Purchaser either option to resolve and repair such damage or loss.
4.6.5 The Title Policy shall have be issued and delivered to Purchaser in the right form required pursuant to terminate this Agreement Section 2.4 above.
4.6.6 If set forth in a Title Objection Notice, Seller shall obtain an estoppel certificate from each and receive a refund every party to any reciprocal easement agreement or other condition, covenant or restriction (the “REA Estoppel Certificate”) which provides for the delivery of an estoppel which is of record against the Land (each, an “REA”), provided such forms are provided to Seller prior to the expiration of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.Due Diligence Period;
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation obligations of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:and absolute discretion (individually and collectively, as the context may require “Purchaser’s Conditions Precedent”):
(a) Seller shall have delivered Subject to Purchaser Section 5.3, all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunderDate.
(cb) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(c) On or before that date which is two (2) business days prior to the Closing Date, Seller shall have delivered to Purchaser an estoppel certificate, dated within thirty (30) days of the Closing Date, in the form as required under a tenant’s Lease, or if no such form is required under the tenant’s Lease, in substantially the form attached hereto as Exhibit B and incorporated herein, completed and duly executed by each tenant under a Lease at the Property (each, a “Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”). Purchaser shall have no right to object to a Tenant Estoppel Certificate solely because it limits one or more statements to the tenant’s knowledge or contains a general conditional statement such as “we reserve all rights” or “subject to our audit rights as set forth in the Lease.” Further, any Tenant Estoppel Certificates meeting the requirements of this Section 4.7(c) shall count towards the Tenant Estoppel Certificate requirement, unless it discloses any default beyond applicable notice or cure periods, by Seller not within Purchaser’s knowledge as of the end of the Inspection Period. Purchaser shall have right to approve completed Tenant Estoppel Certificates prior to delivery to tenants (provided that Purchaser shall review and approve or disapprove such Tenant Estoppel Certificates within three (3) business days of delivery (and failing to respond shall be deemed approved)). Seller will use commercially reasonable efforts to procure from each of the tenants under the Leases a completed and signed Tenant Estoppel Certificate, for delivery in accordance with this Section; provided, Seller’s obligation to use reasonable efforts to obtain the Tenant Estoppel Certificates as required above shall be limited to making requests therefor and reasonable follow-up, but shall not include the payment of any money, issuance of any default notices or any other extraordinary action by Seller.
(d) At Purchaser shall have received or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if irrevocably and unconditionally committed to issuing the Title Company Policy. Notwithstanding anything to the contrary herein, if Seller is not unable to timely satisfy Purchaser’s Condition Precedents set forth above prior to the Closing Date, then, (i) Seller may, if it so preparedelects and without any abatement in the Purchase Price, to irrevocably commit to issue adjourn the Closing by delivering written notice(s) to Purchaser (a standard Pennsylvania basic owner“Condition Precedent Extension Notice”) specifying such new Closing Date for such longer period as may be necessary to satisfy such Purchaser’s title insurance policy Condition Precedent (without regard but in no event more than ten (10) business days), during which Seller shall use commercially reasonable efforts to any endorsements required by Purchaser or its lendersatisfy Purchaser’s Conditions Precedent, (ii) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment condition precedent for Tenant Estoppel Certificates in Section 4.7(c), Seller or a pro-forma policy effective as of Purchaser may, if it so elects and without any abatement in the Purchase Price, adjourn the Closing Dateby delivering a Condition Precedent Extension Notice specifying such new Closing Date for such longer period as may be necessary to satisfy such Purchaser’s Condition Precedent (but in no event more than ten (10) business days, subject only which may be extended an additional five (5) business days if not satisfied within such ten (10) business day period), and (iii) if, after any such extension, the Purchaser’s Conditions Precedent continue not to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller be satisfied (and Purchaser of has not waived the Schedule Bsame) or Seller does not elect such extension and, Section I requirementsin either case, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder of Purchaser’s Condition Precedent is due to not the bad faith and intentional acts result of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before ClosingSeller’s default hereunder, then Purchaser shall have the right be entitled to either (a) terminate this Agreement and by notice thereof to Seller (in which event the Purchaser shall be entitled to receive a refund of the Xxxxxxx Money Initial Deposit and interest earned thereon the Additional Deposit (and except with respect Seller shall promptly deliver the Additional Deposit to the Termination Surviving Obligations, this Agreement shall be null Purchaser) and void and the parties neither party shall have no any further obligations hereunder, except those expressly stated to each other hereundersurvive the termination hereof) or, (b) consummate the transaction contemplated by this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Newegg Commerce, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation obligations of Purchaser to consummate effect the transaction hereunder shall be transactions contemplated by this Agreement are further subject to the fulfillment on satisfaction or before the Closing Date of all waiver by Purchaser of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) On the Closing Date, the Seller Parties shall have delivered to Purchaser:
(i) A true and correct copy of each Seller Party's Certificate of Incorporation, certified by the Secretary of State of Delaware as of a recent date, and By-Laws, certified by the Secretary or Assistant Secretary of each Seller Party, as appropriate, as of the Closing Date.
(ii) A Certificate of Good Standing for each Seller Party, certified by the Secretary of State of Delaware as of a recent date.
(iii) All books and records of Seller relating to or reasonably required for the operation of the business of Seller, including, without limitation, copies of all Contracts, financial and accounting records, files and records relating to employees, and all related correspondence.
(iv) Good and sufficient instruments of transfer transferring to Purchaser title to all of the items Assets as required pursuant to Section 1.3. The instruments of transfer must be delivered in form and substance reasonably satisfactory to Purchaser pursuant and its counsel, which form is usual and customary for transferring the type of property involved under the laws of the jurisdictions applicable to such transfer.
(v) Certified copies of resolutions duly adopted by the terms Board of this Agreement, including but not limited to Directors of the tenant estoppel certificates required under Section 7.2 Seller Parties approving the Transaction Agreements and the documents and other items provided for transactions contemplated thereby.
(vi) a FIRPTA Affidavit (as defined in Section 10.37.1) executed by Seller.
(vii) Copies of the Escrow Agreement and the Zickxxx Distribution Agreement executed by the Seller Parties.
(b) All of the The representations and warranties of the Seller Parties contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the same effect as though such representations and warranties contained in Subsections 8.1 had been made at and as of such time, other than representations and warranties that expressly speak as of a specific date or time (f) which need only be true and (g) may be modified at Closing to reflect changes in the identity correct as of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 abovesuch date or time), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) The Seller Parties shall have performed and observed, complied with in all material respectsrespects all of their respective covenants, all covenants undertakings and agreements of required by this Agreement to be performed and observed or complied with by Seller as of them at or prior to the Closing DateClosing.
(d) At There shall not have been any changes in the Assets or prior to Closingthe Seller's business since December 31, 2000 that, individually or in the Title Company shall be preparedaggregate, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so preparedhave had, or, to irrevocably commit the Seller Parties' Knowledge, are reasonably likely to issue to Purchaser have, a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsMaterial Adverse Effect.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all All of the Other P&S Agreements, unless consents and approvals set forth in SCHEDULE 5.2(e) shall have been obtained and a copy of each such failure consent or approval shall have been provided to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser.
(f) Purchaser shall have received from the right to terminate this Agreement and receive Seller Parties a refund certificate, dated the Closing Date, duly executed by the President or a Vice President of each of the Xxxxxxx Money Deposit Seller Parties, reasonably satisfactory in form and interest earned thereon and except with respect substance to the Termination Surviving ObligationsPurchaser, this Agreement shall be null to the effect of (b), (c), (d) and void (e) above.
(g) Phil Xxxxxxxx xxxll have executed and the parties shall have no further obligations delivered to each other hereunderPurchaser an employment agreement with Purchaser on terms acceptable to Purchaser in Purchaser's sole discretion.
Appears in 1 contract
Samples: Purchase Agreement (Waterlink Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.4.2 hereof;
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects when made and as of the Closing Date Date. Notwithstanding the foregoing, unless the Seller Representation Certificate discloses the existence of an event or condition with respect to the Property (other than any loss or damage to the Property caused by fire or other casualty of condemnation which shall be governed by the terms of Article VII hereof) the results of which may reasonably be expected to have an adverse effect upon the value of the Property (in the aggregate) which would, in the reasonable opinion of an investment sales broker with appropriate modifications permitted under this Agreementexperience in the vicinity of the Property reasonably selected by Purchaser and Seller, be equal to or greater than One Million and No/100 Dollars ($1,000,000.00) ( a “Material Adverse Effect”). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants condition set forth in this Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.4.6(b) shall be deemed to be satisfied;
(c) Seller shall have performed and observed, observed in all material respects, respects all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.;
(d) At Issuance by the Title Company and/or another national title company of the Title Policy; and
(e) On or prior to Closing, Purchaser shall have received Approved Estoppels, from tenants leasing sixty-five percent (65%) of the Title Company shall be preparedleased area of the Improvements (the “Occupied Space”), or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, exclusive of any portion leased to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lenderaffiliates for which no estoppel certificate shall be required, provided, however, Seller may, in lieu of obtaining an Approved Estoppel from a tenant provide Purchaser with an estoppel certificate (a “Seller Estoppel Certificate”) executed by Seller in the amount form of Exhibit E-1 attached hereto for Leases demising up to ten percent (10%) of the Purchase Price Occupied Space, exclusive of any portion leased to Purchaser or its affiliates for which no estoppel certificate shall be required. Purchaser agrees that an estoppel certificate shall be deemed to be an Approved Estoppel even though it may not be in the form or substance sent to the tenant pursuant to Section 3.4 provided that the estoppel certificate (i) contains the specific information (as opposed to a general or “catch all” requirement), if any, required by the applicable lease, or (ii) that the departures therefrom reflect facts or circumstances that are disclosed in writing by Seller or that were known to Purchaser through written reports obtained by or through Purchaser as a part of its inspection of Property. If Seller delivers a Seller Estoppel Certificate to Purchaser with respect to a particular tenant and thereafter Purchaser receives an Approved Estoppel from such tenant which confirms the Property pursuant to a marked-up title commitment or a pro-forma policy effective as accuracy of the Closing Datecertifications set forth in such Seller Estoppel Certificate, subject only to Permitted Exceptions then all obligations and the standard printed exceptions on liabilities of Seller under such policy, upon the fulfillment by Seller Estoppel Certificate shall terminate and be of no force and effect and Purchaser shall cancel and return such Seller Estoppel Certificate to Seller. If any of the Schedule B, conditions to Purchaser’s obligations under Section I requirements, 4.6 shall fail to occur and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or not otherwise a breach of any material covenant of Purchaser default under this Agreement or any KPG (in which event Purchaser would be afforded the rights under the other P&S Agreements of which it Section 6.2 hereof), then Purchaser may, as long as Purchaser is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closingin default hereunder, Purchaser shall have the right to and as its sole and exclusive remedy, terminate this Agreement by written notice to Seller, in which event the Deposit shall be promptly returned to Purchaser and receive a refund neither party shall have any further rights or obligations hereunder (except for those obligations of either party that expressly survive the Xxxxxxx Money Deposit and interest earned thereon and except with respect termination of this Agreement pursuant to the Termination Surviving Obligations, other provisions of this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderAgreement).
Appears in 1 contract
Samples: Sale Agreement (Equinix Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) 4.6.1 Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser (or into the Closing escrow) pursuant to the terms of this Agreement, including including, but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) 4.6.2 All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (or in the case of representations and warranties that are made as of a specified date, as of such specified date); provided, however, that, notwithstanding anything to the contrary contained herein, if any representation or warranty of Seller hereunder was accurate as of the date of this Agreement in all material respects but subsequently became inaccurate as a result of any act, omission, event or occurrence that does not constitute a Seller default under any other provision of this Agreement, then (x) the condition set forth in this Section 4.6.2 shall be deemed to be satisfied with appropriate modifications permitted respect to such representation or warranty notwithstanding such inaccuracy and (y) such inaccuracy shall not relieve Purchaser of its obligations to consummate the Closing under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) 4.6.3 Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the 4.6.4 Any other P&S Agreements of which it is a party. If the conditions condition precedent to Closing under in favor of Purchaser expressly set forth in this Section 9.1 Agreement shall have been satisfied or waived hereunder. In the event any of the foregoing conditions are not satisfied fulfilled or waived by Purchaser on or before by Closing, Purchaser shall have the right to may terminate this Agreement by giving written notice to Seller before the Closing occurs and receive a refund neither party hereto shall have any further rights, obligations or liabilities hereunder except the Surviving Obligations. If Closing occurs, all of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement foregoing conditions precedent shall be null and void and the parties shall deemed to have no further obligations to each other hereunderbeen satisfied or waived.
Appears in 1 contract
Samples: Equity Interest Purchase and Sale Agreement (Creative Media & Community Trust Corp)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be transactions contemplated by this Agreement is subject to the fulfillment fulfillment, on or before prior to the Closing Date Date, of all each of the following conditions, conditions (any or all of which may be waived by Purchaser in its sole discretion:whole or in part to the extent permitted by applicable law):
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller Sellers contained in this Agreement herein shall be true and correct in all material respects as of the date of this Agreement and at and as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the same effect as though those representations and warranties contained in Subsections 8.1 (f) had been made again, at and (g) may be modified at Closing to reflect changes in the identity as of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.time;
(cb) Seller Sellers shall have performed and observed, complied in all material respects, respects with all obligations and covenants and agreements of required by this Agreement to be performed and observed or complied with by Seller as of them on or prior to the Closing Date.:
(c) Purchaser shall have been furnished with certificates (dated the Closing Date and in form and substance reasonably satisfactory to Purchaser) executed by each Seller certifying as to the fulfillment of the conditions specified in Sections 5.1(a) and 5.1(b) hereof;
(d) At there shall not have been commenced or prior to Closing, the Title Company shall be preparedthreatened against Purchaser or any Seller, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to against any endorsements required by person affiliated with Purchaser or its lenderany Seller, any proceeding (i) involving a challenge to, or seeking damages or other relief in the amount connection with, any of the Purchase Price transactions contemplated by this Agreement or (ii) that may have the effect of preventing, delaying, making illegal or otherwise interfering with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as any of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment transactions contemplated by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.this Agreement;
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser the funding of the Acquisition Financing shall have been satisfied, and the right Acquisition Financing shall have been funded to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect an amount at least equal to the Termination Surviving Obligations, this Agreement shall be null and void Share Purchase Price and the parties shall have no further obligations to each other hereunderOption Purchase Price.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser Escrow Agent all of the items required to be delivered to Purchaser by Seller or Seller's agents pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement and not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior All other conditions precedent to Closing, Purchaser's obligation to consummate the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared transaction hereunder (if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lenderany) which are expressly set forth in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller this Agreement shall have been satisfied on or before the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsdate of Closing.
(e) Closing The Title Company is ready, willing and able to issue the Title Policy.
(f) The Loan Assumption has been approved by Servicer.
(g) There shall simultaneously take place between KPG Purchasers exist no pending actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against Seller that would materially and M-C Sellers adversely affect Seller’s ability to perform its obligations under all this Agreement. In the event any of the Other P&S Agreements, unless such failure to close thereunder is due to foregoing conditions has not been satisfied by the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before ClosingDate, Purchaser shall have the right to terminate this Agreement and receive a by written notice given to Seller on the Closing Date, whereupon Escrow Agent shall promptly refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser's and Seller's respective rights, remedies and obligations shall instead be determined in accordance with Article 6.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Steadfast Income REIT, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be Transaction is further subject to the fulfillment satisfaction or waiver, in writing, on or before prior to the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of the Company and Seller contained (i) set forth in this Agreement Sections 3.1, 3.2, 3.4, 3.8(b), 4.1 and 4.2 shall be true and correct in all material respects and (ii) set forth in this Agreement other than those listed in clause (i) shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” and words of similar import set forth therein), in each case as of the Closing Date with the same force and effect as if made on and as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the other than those representations and warranties contained in Subsections 8.1 (f) which address matters only as of a particular date, which shall have been true and (g) may be modified at Closing to reflect changes correct only as of such particular date), except in the identity case of clause (ii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, and Purchaser shall have received a certificate signed by an authorized executive officer of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above)Company, notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective dated as of the Closing Date, subject only to Permitted Exceptions the foregoing effect;
(b) the Company and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by the right Company on or prior to arrange for First American Title Insurance the Closing Date, and Purchaser shall have received a certificate signed by an authorized executive officer of the Company’s National Office , dated as of the Closing Date, to become involved the foregoing effect;
(c) since the date of this Agreement, there shall not be or have been any event, change, occurrence or circumstance that, individually or in such title decisions.the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect that is continuing, and Purchaser shall have received a certificate signed by an authorized executive officer of the Company, dated as of the Closing Date, to the foregoing effect;
(d) the Company and/or Seller, as applicable, shall have delivered, or caused to be delivered, to Purchaser the documents required to be delivered pursuant to Section 2.2; and
(e) Closing the Company or Seller, as applicable, shall simultaneously take place between KPG Purchasers and M-C Sellers under all have delivered, or caused to be delivered, to Purchaser either (i) a certificate signed by an authorized executive officer of the Other P&S AgreementsCompany, unless such failure to close thereunder is due dated as of the Closing Date, to the bad faith effect that, after giving pro forma effect to the termination, forgiveness, discharge or settlement pursuant to this Agreement (including Section 7.6) at or prior to Closing of any amounts (including any inter-company Indebtedness, payables or receivables) owing, due or payable between the Company or its Subsidiaries, on the one hand, and intentional acts of Purchaser Seller or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under its Affiliates, on the other P&S Agreements of which it is a party. If hand, (A) the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund total assets of the Xxxxxxx Money Deposit Company and interest earned thereon its Subsidiaries as of June 30, 2013 did not exceed $500,000,000 and except (B) the absolute value of the income of the Company and its Subsidiaries before income taxes, extraordinary items and cumulative effect of a change in accounting principle exclusive of amounts attributable to any non-controlling interests for the fiscal year ended June 30, 2013 did not exceed $50,000,000 or (ii) the financial statements, unqualified audit opinion and consent of the Accounting Firm referred to in Section 7.4(d); provided, that, with respect to clause (i) above, neither Seller nor any of its Affiliates nor the Termination Surviving Obligations, this Agreement person executing such certificate shall be null and void have any liability (and the parties Purchaser Indemnified Parties shall have no further obligations not be entitled to each other hereunderindemnification pursuant to Article IX hereunder or otherwise) in connection with the delivery of such certificate or the contents thereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (New Media Investment Group Inc.)
Conditions Precedent to Obligation of Purchaser. In addition to any conditions provided in other provisions of this Agreement, Purchaser’s obligation to purchase the Property is and shall be conditioned on the satisfaction of the items set forth in Section 6.1 (hereinafter referred to as the “Purchaser Conditions Precedent”). The obligation Purchaser Conditions Precedent are intended solely for the benefit of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which and may be waived only by Purchaser in writing. In the event any Purchaser Condition Precedent is not satisfied, Purchaser may, in its sole discretion:and absolute discretion terminate this Agreement, and, all obligations of Purchaser and Seller hereunder (except provisions of this Agreement which recite that they survive termination) shall terminate and be of no further force or effect and the Exxxxxx Money shall be paid to Purchaser.
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observedThe due performance, in all material respects, all covenants by Seller of each and agreements of this Agreement every covenant, undertaking and agreement to be performed by it hereunder and observed the truth of each representation and warranty, in all material respects and as qualified in Section 7.1 hereof, made in this Agreement by Seller at the time as of which the same is made and as of the Closing Dateas if made on and as of the Closing.
(b) That there shall not have occurred at any time or times on or before the Closing any taking or threatened taking of the Property or any part thereof by eminent domain.
(c) That at no time prior to the Closing shall any of the following have been done by or against or with respect to Seller: (i) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (ii) the appointment of a trustee or receiver of any property interest; or (iii) an assignment for the benefit of creditors.
(d) At Title Company is prepared to issue the Title Policy in the form approved by Purchaser on or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Due Diligence Expiration Date, subject only to the Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsExceptions.
(e) On the Closing Date, there shall simultaneously take place between KPG Purchasers and M-C Sellers under all not then be pending or, to the knowledge of either Purchaser or Seller, threatened, any litigation, administrative proceeding, investigation or other form of governmental enforcement, or executive or legislative proceeding which, if determined adversely, would restrain the consummation of any of the Other P&S Agreementstransactions herein or declare illegal, unless such failure to close thereunder is due to invalid or non-binding any of the bad faith and intentional acts covenants or obligations of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, parties herein.
(f) Purchaser shall have received the right to terminate this Agreement and receive a refund of Bulk Sales Initial Order (as defined herein) or, in lieu thereof, an indemnity from Seller until the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderBulk Sales Initial Order is obtained.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the material items required to be delivered to Purchaser by Seller or Seller's agents pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior to Closing, the The Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if have delivered the Title Company is not so prepared, to irrevocably commit to issue Policy to Purchaser a standard Pennsylvania basic owner’s title insurance policy as contemplated in Section 2.4 (without regard or marked binder equivalent to any endorsements required by Purchaser or its lender) in the amount such Title Policy), subject to Purchaser's payment of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on premiums for such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsPolicy.
(e) Closing Purchaser shall simultaneously take place between KPG Purchasers have received the executed documents from the Bond Participants evidencing the necessary consents and M-C Sellers under approvals from the Bond Participants necessary to effect the Assumption and Release Transaction; provided, however, if Purchaser fails to obtain all necessary consents and approvals during the Bond Period and Purchaser does not timely terminate this Agreement prior to the expiration of the Other P&S AgreementsBond Period, unless such failure to close thereunder is due then Purchaser shall be in default, and Seller shall be entitled to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the remedies provided in Section 6.2 hereof.
(f) All other P&S Agreements of which it is a party. If the conditions precedent to Closing under Purchaser's obligation to consummate the transaction hereunder (if any) which are set forth in this Section 9.1 are not Agreement shall have been satisfied or waived by Purchaser on or before Closingthe date of Closing (or such earlier date as is set forth herein). In the event any of the foregoing conditions has not been satisfied by the Closing Date, Purchaser shall have the right to terminate this Agreement and receive a by written notice given to Seller on the Closing Date, whereupon Escrow Agent shall refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser's and Seller's respective rights, remedies and obligations shall instead be determined in accordance with ARTICLE 6.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Post Apartment Homes Lp)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser or Title Company all of the items required to be delivered to Purchaser or Title Company, respectively, pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.4.2 hereof. 35311418v.9
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance date of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior to Closing, Purchaser shall have obtained an irrevocable commitment from Title Company that it will issue the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue Policy to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in promptly after the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsClosing.
(e) Closing Except for any loss or damage to the Property by casualty or condemnation (which shall simultaneously take place between KPG Purchasers and M-C Sellers under all be governed by Article VII of this Agreement), there shall not have occurred any circumstance, condition, event, change or occurrence, individually or in the aggregate, that has had or could reasonably be expected to have a material adverse effect on the condition, use or operation of (or the ability to use or operate) the Property from the condition, use or operation of (or the ability to use or operate) the Property existing as of the Other P&S Agreements, unless such failure to close thereunder is due date of Purchaser’s Approval Notice. Notwithstanding any provision of this Section 4.7(e) to the bad faith contrary, any change in general economic, financial or political conditions (including changes in interest rates and intentional acts changes in economic or financial conditions specifically affecting the real estate industry) shall not constitute an occurrence having a “material adverse effect” on the Property for purposes of this Section 4.7(e). In the event that Purchaser or any KPG Purchaser intended elects to impede Closing or a breach of any material covenant of Purchaser under terminate this Agreement or based solely on its rights under Section 4.7(e) above, the parties agree that, notwithstanding anything contained in this Agreement to the contrary, One Hundred Thousand Dollars ($100,000) of the Xxxxxxx Money that would otherwise be returned to Purchaser upon such termination shall instead be paid directly to Seller by Title Company, in consideration for Seller’s agreement to include said Section 4.7(e) in this Agreement. In the event that any KPG Purchaser under of the other P&S Agreements of which it foregoing conditions is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right right, at its option, to terminate this Agreement and receive a by written notice to Seller, in which event Title Company shall immediately refund of the Xxxxxxx Money Deposit to Purchaser. Purchaser may waive any of the foregoing conditions, but only in a writing duly executed by Purchaser. No waiver of any such conditions or termination of the Agreement by Purchaser shall waive or otherwise affect any of Purchaser’s rights or remedies upon a default by Seller, unless Purchaser has specifically and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderexpressly waived such default.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. (a) The obligation of Purchaser to consummate the transaction transactions hereunder shall be subject to the fulfillment on or before the Closing Date (or as otherwise provided herein) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion, it being agreed that these conditions precedent are applicable only to those Properties that are the subject of a Closing on such Closing Date:
(ai) Seller shall have delivered to Purchaser Escrow Agent all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.;
(bii) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (Date, with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.;
(ciii) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.;
(div) At or prior to Closing, the The Title Company shall be preparedready, willing and able and irrevocably committed to issue the Title Policies to Purchaser in accordance with this Agreement;
(v) Seller shall maintain as of the Closing Date a long term issuer rating of BBB or First American Title Insurance Companybetter by Standard & Poor’s National Office Ratings Services or Baa2 or better by Xxxxx’x Investor Services, Inc. as of the Closing;
(vi) All Existing Leases shall have been converted to a “true” sublease with Seller as sublandlord which shall be prepared if subordinated to the Title Company is not so preparedapplicable Seller Lease Agreement or terminated prior to the Closing; and
(vii) Certificates evidencing the insurance coverage, limits and policies to irrevocably commit be carried by the Tenant under and pursuant to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements the terms of the Seller Lease Agreements, on the forms and containing the information required by Purchaser Purchaser, as landlord.
(b) For purposes of Sections 9.1(a)(ii) and 9.1(a)(iii), the representations and warranties of Seller (other than the representations in Section 8.1(a), (b), (c) and (d), as to which this Section 9.1(b) shall not apply) will be deemed true and correct in all material respects, and Seller will be deemed to have performed in all material respects all covenants and obligations it is required to perform under this Agreement at or its lender) in prior to the Closing Date, unless the amount of the Purchase Price with respect to losses resulting from such breaches of representations, warranties and covenants exceeds the Property pursuant to a markedPre-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsBreach Threshold.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (First Midwest Bancorp Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate effect the transaction hereunder transactions contemplated herein shall be subject to the fulfillment on satisfaction or before waiver at or prior to the Closing Date of all of the following additional conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser performed in all of the items material respects their obligations under this Agreement required to be delivered to Purchaser pursuant performed by Seller at or prior to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3Closing.
(b) All of the The representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects on the date of this Agreement and as of the Closing Date as if made at and as of such date except to the extent such representations are expressly made as of an earlier date; provided, however, that with respect to the Subsequent Closing, (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the x) only those representations and warranties of Seller contained in Subsections 8.1 (f) Sections 3.01, 3.02, 3.03, 3.04, 3.08, 3.09 and 3.12 shall be true and correct in all respects on the date of this Agreement and as of the Subsequent Closing Date as if made at and as of such date except to the extent such representations are expressly made as of an earlier date and (gy) may such representations and warranties need only be modified at Closing true and correct with respect to reflect changes in and to the identity of extent that they impact the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunderAdditional Assumed Contracts.
(c) The Sale Order, in a form reasonably acceptable to Purchaser, stating, among other things, that the Acquired Assets shall be acquired by Purchaser free and clear of any Liens, Claims and Other Interests of any kind or nature, shall have been entered by the Bankruptcy Court, and such order shall not have been stayed, modified, reversed or amended in any manner adverse to Purchaser, and Seller shall have performed received from the Bankruptcy Court all other orders, approvals and observedconsents reasonably required to transfer the Acquired Assets and to consummate the transactions contemplated herein, in all material respects, all covenants and agreements of this Agreement Purchaser shall have received evidence thereof reasonably satisfactory to be performed Purchaser and observed by Seller as of the Closing Dateits counsel.
(d) At or prior to ClosingWith the exception of $1,000,000 of cure costs for Assumed Contracts, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company Liability for which is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required being assumed by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirementsPurchaser, and the payment by Purchaser of $25,000 for cure costs necessary to assume the requisite premium. Seller shall have Lease, which is paid at the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Initial Closing, Purchaser shall have the right to terminate this Agreement no liability for any “cure costs” and receive a refund Administrative Expenses in respect of Assumed Contracts
(e) Upon consummation of the Xxxxxxx Money Deposit transactions contemplated herein, Purchaser will have acquired good title in and to, or a valid leasehold interest earned thereon in, as applicable, each of the Acquired Assets, free and except with respect clear of all Liens, Claims and Other Interests, other than those related to the Termination Surviving Obligations, this Agreement shall be null Assumed Liabilities and void and the parties Permitted Exceptions.
(f) Seller shall have no further obligations procured an order of the Bankruptcy Court authorizing the assumption and assignment of the Lease and shall have conveyed to each other hereunderPurchaser all equipment and fixtures belonging to the Seller that are located at Seller’s premises covered by the Lease.
Appears in 1 contract
Samples: Asset Purchase Agreement (Orchard Enterprises, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania New York basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:discretion (and if any condition shall fail and shall not be waived in writing by Purchaser, Purchaser shall have the right to terminate this Agreement and receive from the Escrow Agent the Xxxxxxx Money Deposit provided that (i) Purchaser is not in default (beyond any applicable notice and cure period) of any provision of this Agreement at the time of termination of this Agreement; and (ii) Purchaser shall have provided written notice to Seller identifying Seller’s failure to satisfy a condition precedent and Seller shall have not cured such failure within five (5) Business Days of receipt of such written notice):
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(c) The Property shall be in substantially the same physical condition on the Closing Date as on the Effective Date, ordinary wear and tear (and damage by casualty or condemnation together with all proceeds associated therewith if so elected by Purchaser pursuant to Article XI) excepted.
(d) At or prior to ClosingNo notice of default shall have been given by Seller, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective and remains uncured as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing Seller shall simultaneously take place between KPG Purchasers and M-C Sellers under all have delivered to Purchaser evidence of the Other P&S Agreementstermination of all service contracts, unless management contracts and maintenance agreements affecting the Property (other than such failure agreements and contracts which Purchaser has agreed in writing or is required under Section 7.1(c) to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser assume).
(f) Seller shall have delivered to Purchaser an Estoppel Certificate, substantially in the right to terminate this Agreement and receive a refund form attached hereto as Exhibit F, for tenants representing seventy-five percent (75%) of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to occupied premises in the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderBuilding.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser by Seller or Seller's agents pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing; provided, Seller is entitled to update in Seller's Closing Date Certificate (with appropriate modifications permitted under x) the Rent Roll which shall not constitute a failure of this Agreement). For the avoidance of doubt, the condition precedent and (y) other representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in facts that have occurred after the identity Effective Date, which Seller first attains knowledge of after the Effective Date, but if Purchaser determines in its reasonable discretion that an updated representation has a material and adverse effect on Purchaser's purchase of the Tenants and Property, then Purchaser may notify Seller that the Leases (that are condition precedent has failed but Seller will not be in violation default under this Agreement as a result of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between failure of the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereundercondition precedent.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to ClosingThe Construction and Occupancy Conditions have been satisfied; provided, the Title Company shall be preparedhowever, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount event that the Construction and Occupancy Conditions have not been satisfied on or before the date in accordance with the time limits set forth in Section 4.1, then at Purchaser's election, at any time thereafter, in its sole discretion, this condition may be deemed unsatisfied, whereupon Purchaser may avail itself of the Purchase Price rights set forth in the final paragraph of this Section 4.6; provided, however, in the event a party elects to extend the Closing Date to provide Seller with respect additional time to complete the Construction and Occupancy Conditions as provided in Section 4.1, and thereafter, Seller fails to cause the completion of the Construction and Occupancy Conditions, then in addition to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as rights set forth in the final paragraph of the Closing Datethis Section 4.6, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right also reimburse Purchaser for Purchaser's actual and verifiable third party costs and expenses incurred in connection with this Agreement, not to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsexceed $100,000.00.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under Seller has satisfied all of the Other P&S Agreements, unless such failure Schedule B - Section 1 requirements contained in the Title Commitment that are Seller's obligation to close thereunder is due satisfy and Seller has done nothing to prevent the Title Company from being able to deliver at Closing the owner's policy of title insurance pursuant to the bad faith Title Commitment, without exception other than the Permitted Exceptions.
(f) Subject to Purchaser satisfying its obligation in Section 4.7(d), Purchaser has obtained a final as-built ALTA survey showing the location of the Improvements upon the Land, completed in accordance with the Plans and intentional acts Specifications and compliant with all applicable zoning requirements.
(g) Seller has obtained and delivered to Purchaser all consents required by Section 11.20 to assign the Construction Contracts (as hereinafter defined) to Purchaser in accordance with their terms.
(h) Subject to Purchaser satisfying its obligation in Section 4.7(e), Purchaser has received a clean update to the Phase I Environmental Report that Purchaser obtains during the Inspection Period confirming that no environmentally recognized conditions have occurred at the Property since the expiration of Purchaser the Inspection Period.
(i) There occurring, between the date hereof and the date of Closing, no material adverse change in the physical condition of the Property, the zoning status of the Property, or in any KPG Purchaser intended to impede other aspect of the Property. In the event any of the foregoing conditions have not been satisfied by the Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before ClosingDate, Purchaser shall have the right to terminate this Agreement and receive a by written notice given to Seller on the Closing Date, whereupon Escrow Agent shall promptly refund the entire amount of the Xxxxxxx Exxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions have not been satisfied due to a default by Seller hereunder, then Purchaser's rights, remedies and obligations shall instead be determined in accordance with Article 6. For the avoidance of doubt, the foregoing conditions are for the benefit of Purchaser and may be waived, in writing, in whole or in part, at Purchaser's discretion.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Bluerock Residential Growth REIT, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.4.2 hereof;
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.; and
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior to ClosingPurchaser shall have obtained (with Seller's cooperation), at Purchaser's sole cost and expense within the Initial Inspection Period, the Title Company consent of FRRA and the City of Fall River to the assignment of the Ground Lease to Purchaser in accordance with the terms of this Agreement and any consent of any mortgagee of FRRA which may be required in connection with such assignment.
(e) Purchaser shall be preparedhave obtained, or First American Title Insurance Company’s National Office shall be prepared if at Purchaser's sole cost and expense, within the Title Company is not so preparedInitial Inspection Period, the execution by the FRRA of an amendment to the Ground Lease between Purchaser and FRRA to allow the subleasing of office space to an unrelated third party, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy be effective as of the Closing Date, subject only ("Amendment to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Ground Lease"). Purchaser shall also obtain any consent of the Schedule B, Section I requirements, and the payment by Purchaser any mortgagee of the requisite premium. Seller shall have the right FRRA required to arrange allow for First American Title Insurance Company’s National Office said Amendment to become involved in such title decisionsGround Lease.
(ef) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have obtained financing for the right transaction contemplated by this Agreement (which may include the designation of a party to take title to the Property, which party will then lease the Improvements and sublease the Land to Purchaser ["Sale Leaseback Transaction"]) with such terms and conditions as may be approved by Purchaser in its sole and absolute discretion within the Initial Inspection Period.
(g) The Board of Directors of Purchaser and the Board of Directors of Quaker Fabric Corporation, the sole stockholder of Purchaser, shall have approved the transactions contemplated by this Agreement within the Initial Inspection Period. If any of Conditions 4.6(d), (e), (f) and (g) are not met within the Initial Inspection Period and Purchaser elects not to terminate this Agreement and receive a refund of within the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving ObligationsInitial Inspection Period, this Agreement such conditions shall be null and void and the parties shall have no further obligations to each other hereunderdeemed waived by Purchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Quaker Fabric Corp /De/)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser Escrow Agent all of the items required to be delivered to Purchaser by Seller or Seller’s agents pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement and not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior All other conditions precedent to Closing, Purchaser’s obligation to consummate the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared transaction hereunder (if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lenderany) which are expressly set forth in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller this Agreement shall have been satisfied on or before the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsdate of Closing.
(e) Closing The Title Company is ready, willing and able to issue the Title Policy.
(f) There shall simultaneously take place between KPG Purchasers exist no pending actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against Seller that would materially and M-C Sellers adversely affect Seller’s ability to perform its obligations under all this Agreement. In the event any of the Other P&S Agreements, unless such failure to close thereunder is due to foregoing conditions has not been satisfied by the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before ClosingDate, Purchaser shall have the right to terminate this Agreement and receive a by written notice given to Seller on the Closing Date, whereupon Escrow Agent shall promptly refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser's and Seller's respective rights, remedies and obligations shall instead be determined in accordance with Article 6.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Steadfast Income REIT, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania New Jersey basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing Purchaser and Seller shall simultaneously take place between KPG Purchasers have complied with the New Jersey Bulk Sale Law, N.J.S.A. 54:50-38, and M-C Sellers under all shall have received from the State of New Jersey, Department of the Other P&S AgreementsTreasury, unless such failure Division of Taxation, either an Escrow Letter (stating the amount of money to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing be held in escrow at Closing) or a breach of any material covenant of Clearance Letter (stating that the bulk sale case has been closed, no money is to remain in escrow, and the Purchaser under this Agreement or any KPG Purchaser is absolved from liability under the other P&S Agreements of which it is a partyBulk Sale Law). If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser by Seller or Seller’s agents pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date, as if made and updated as of the Closing Date (with appropriate modifications permitted under this Agreementwithout any reference to “knowledge”). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior Purchaser shall have obtained, at its sole cost and expense, any consent needed for the purchase and sale contemplated herein under the provisions of that certain Land Use Restriction Agreement (the “Restriction Agreement”) dated as of March 1, 1995, recorded as Document I1132446 in the Office of the Director of Records of Xxxxxxx County, Missouri. Seller agrees to Closing, cooperate with Purchaser in obtaining such consent. Purchaser agrees to use due diligence to obtain such consent and shall apply with the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if appropriate party for the Title Company consent within five (5) days from the Effective Date. If consent is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy obtained within one hundred eighty (without regard to any endorsements required by Purchaser or its lender180) in days from the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsEffective Date then either party may cancel this Agreement.
(e) Closing The Title Company shall simultaneously take place between KPG Purchasers and M-C Sellers under all have issued the Title Policy to Purchaser (or unconditionally committed to issue the Title Policy to Purchaser upon receipt of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the title insurance premium therefor).
(f) All other P&S Agreements of which it is a party. If the conditions precedent to Closing under Purchaser’s obligation to consummate the transaction hereunder (if any) which are expressly set forth in this Section 9.1 are not Agreement shall have been satisfied or waived by Purchaser on or before Closingthe Closing Date. In the event any of the foregoing conditions has not been satisfied by the Closing Date other than through failure of Purchaser to fully comply with its obligations under this Agreement, Purchaser shall have the right to terminate this Agreement and receive a by written notice given to Seller on the Closing Date, whereupon Seller shall refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser’s and Seller’s respective rights, remedies and obligations shall instead be determined in accordance with ARTICLE 5.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Paladin Realty Income Properties Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser by Seller or Seller’s agents pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance date of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to ClosingA final order approving this Agreement and the sale, transfer, and conveyance of the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue Property from Seller to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of for the Purchase Price and on the terms and conditions set forth herein has been entered by the Bankruptcy Court, and the time for the filing of notices of appeal with respect to that order has expired, or, in the Property pursuant discretion of Purchaser, such an order has been entered by the Bankruptcy Court and the order is not subject to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsstay.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under Seller has satisfied all of the Other P&S Agreements, unless such failure Purchaser’s Title Objections which Seller has elected to close thereunder is due cure and all of the Schedule C requirements contained in the Title Commitment that are Seller’s obligation to satisfy and Seller has done nothing to prevent the Title Company from being able to deliver at Closing the Owner’s Policy of Title Insurance pursuant to the bad faith Title Commitment, without exception other than the Permitted Exceptions.
(f) There occurring, between the date hereof and intentional acts the date of Closing, no material adverse change in the physical condition of the Property, the zoning status of the Property, or in any other aspect of the Property.
(g) Xxxxxxxx shall have executed the Xxxxxxxx Lease, in the form agreed to during the Inspection Period, and Purchaser shall have countersigned the Xxxxxxxx Lease at Closing.
(h) Xxxxxx Farms JV shall have executed the Farms Lease, and Purchaser shall have countersigned the Farms Lease at Closing.
(i) X. Xxxxxx shall have executed the Consulting Agreement, in the form agreed to during the Inspection Period, and Purchaser shall have countersigned the Consulting Agreement at Closing.
(j) Seller and Xxxxxx Farms JV shall have entered into an agreement terminating any lease or access agreement in place between Seller and Xxxxxx Farms JV which grants Xxxxxx Farms JV any rights in the Property or allows Xxxxxx Farms JV to access the Property (other than as contemplated by the Farms Lease and pursuant to Section 1.1(e)).
(k) Seller and Xxxxxxxx shall have entered into an agreement terminating any lease or access agreement in place between Seller and Xxxxxxxx which grants Xxxxxxxx any rights in the Property or allows Xxxxxxxx to access the Property (other than as contemplated by the Xxxxxxxx Lease).
(l) On the Closing Date, there shall be no litigation pending or threatened, seeking (i) to enjoin the consummation of the sale and purchase hereunder, (ii) to recover title to the Property, or any KPG Purchaser intended part thereof or any interest therein, or (iii) to impede Closing or a breach enjoin the violation of any material law, rule, regulation, restrictive covenant or zoning ordinance that may be applicable to the Property.
(m) Seller shall have paid or the Closing Statement shall make provisions for the payments to Purchaser of Purchaser under this Agreement or the costs and expenses described in Section 4.5(f). In the event any KPG Purchaser under of the other P&S Agreements of which it is a party. If foregoing conditions have not been satisfied by the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before ClosingDate, Purchaser shall have the right to terminate this Agreement and receive a by written notice given to Seller on the Closing Date, whereupon Escrow Agent shall promptly refund the entire amount of the Xxxxxxx Money Deposit to Purchaser and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties neither party hereto shall have no any further rights, obligations or liabilities hereunder except those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions have not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser’s and Seller’s respective rights, remedies and obligations shall instead be determined in accordance with Article 6. For the avoidance of doubt, the foregoing conditions are for the benefit of Purchaser and may be waived, in writing, in whole or in part, at Purchaser's discretion.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller Sellers contained in this Agreement shall be true and correct in all material respects as of the Closing Date, as if made and updated as of the Closing Date (with appropriate modifications permitted under this Agreementwithout any reference to “knowledge”). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(cb) Seller Sellers shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller Sellers as of the Closing Date.
(c) Sellers and Purchaser shall have agreed upon the terms and provisions of, and shall have executed and delivered, the Restated Operating Agreement.
(d) At or prior to Closing, the Title The Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if have closed and funded simultaneously with the Title Company is not so prepared, Closing of the transaction hereunder a permanent loan upon terms and conditions set forth in the loan commitment attached hereto as Schedule 3.6(d) and made a part hereof and otherwise pursuant to irrevocably commit to issue loan documentation in form and substance reasonably satisfactory to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.“New Financing”)
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the All other P&S Agreements of which it is a party. If the conditions precedent to Closing under Purchaser’s obligation to consummate the transaction hereunder (if any) which are expressly set forth in this Section 9.1 are not Agreement shall have been satisfied or waived by Purchaser on or before Closingthe Closing Date. In the event any of the foregoing conditions has not been satisfied by the Closing Date other than through failure of Purchaser to fully comply with its obligations under this Agreement, Purchaser shall have the right to terminate this Agreement and receive a by written notice given to Sellers on the Closing Date, whereupon Sellers shall refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Sellers hereunder, then Purchaser’s and Sellers’ respective rights, remedies and obligations shall instead be determined in accordance with ARTICLE 5.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Paladin Realty Income Properties Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment fulfillment, on or before the Closing Date date of Closing, of all of the following conditions, any or all of which may be waived by Purchaser (but only by written notice) in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At As a condition of Purchaser’s obligation to close, Seller shall obtain and deliver the estoppel certificates set forth in Section 4.2(m). . Seller agrees that, in order to satisfy the condition stated in this subsection (d), each of such foregoing estoppels must be in the form set forth in Exhibits H-1, H-2 and H-3. In the event Seller is unable to obtain an estoppel certificate from either the landlords of both the Leone and the Regard Ground Lease or from the Tenant of the Lease identified in item 3 of Exhibit A-3, then Seller shall deliver, and Purchaser shall accept, a Seller’s estoppel certificate the terms of which shall survive the closing for twelve (12) months. Seller, promptly after receipt thereof, shall deliver each executed estoppel certificate to the Purchaser. In the event Seller adjourns the date of Closing pursuant to any provision of this Agreement entitling Seller to do so, and such adjournment results in any estoppel certificate being dated more than ten (10) days prior to the adjourned date of Closing (hereafter, a “Stale Estoppel”), such Stale Estoppel shall no longer satisfy the conditions of this Section 4.6(d), and Seller shall be obligated to obtain a new, replacement estoppel, dated not earlier than ten (10) days prior to the adjourned date of Closing, in order to satisfy the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) conditions stated in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, this Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions4.6(d).
(e) No Lease shall have been terminated or the premises demised thereby surrendered; nor shall any tenant have ceased operating for business at the Property; nor shall any such tenant have filed for protection under the United States Bankruptcy Act.
(f) Subject only to payment of its premiums for same, First American shall be prepared to issue at Closing shall simultaneously take place between KPG Purchasers (or prepared to unconditionally commit to issue at Closing, with no “gap”) its title policy insuring that (i) Purchaser owns fee title to both the SA Parcel and M-C Sellers the Ground Leased Parcel; and (ii) Purchaser has a valid and marketable ground leasehold estate in and to the lands that are demised under all each of the Other P&S AgreementsLeone Ground Lease and the Regard Ground Lease, unless such failure to close thereunder is due in each case subject only to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Permitted Exceptions.
(g) Purchaser shall have received the right to terminate this results of its “Phase 2” environmental investigations in accordance with the Access Agreement and receive a refund of for both the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void SA Parcel and the parties Ground Leased Parcel, and Purchaser shall have no further obligations to each other hereunderdetermined, in Purchaser’s sole and absolute discretion, that such results are acceptable.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Trinity Place Holdings Inc.)
Conditions Precedent to Obligation of Purchaser. The AND SELLERS TO PAY THE INITIAL INSTALLMENT AND TO CLOSE
(a) Purchaser’s obligation to complete this transaction and close on the purchase of Purchaser to consummate the transaction hereunder Stock shall be subject to the fulfillment on or before the Closing Date of all each of the following conditions, any or all of which may be unless waived in writing by Purchaser in its sole discretionPurchaser:
(ai) The representations and warranties of Sellers and the Corporation set forth in ARTICLE 5 and ARTICLE 6 hereof shall be true, accurate and correct in all material respects at the Closing Date as though made at and as of that date, except to the extent such representations and warranties speak as of an earlier date.
(ii) The Corporation and Sellers shall have performed in all material respects all covenants and undertakings required by this Agreement to be performed by it or them on or before the Closing Date.
(iii) There shall have been no material adverse change in the financial status of the Corporation or the business operations since December 31, 2003.
(iv) There shall be no pending litigation or proceeding against the Corporation or Sellers by any third party that could reasonably be expected to have a material adverse effect on the Corporation.
(v) The Corporation and Seller shall have delivered to Purchaser all of the items required to be delivered to documents and certifications indicated in this Agreement.
(vi) Purchaser pursuant shall have received evidence satisfactory to the terms Purchaser of this Agreementall bank regulatory, including insurance and other governmental and regulatory approvals (including, but not limited to the tenant estoppel certificates to, approvals, authorizations, declarations, licenses, registrations and filings) which are required under Section 7.2 or pursuant to applicable laws and regulations, or which are otherwise required by or on the part of the Purchaser and/or Sellers, in order to affect the delivery and performance of this Agreement and any agreements related to this Agreement and the documents transactions contemplated hereby and thereby, none of which approvals shall impose any condition which in the judgment of Purchaser would adversely impact the anticipated economic and business benefits contemplated by transactions set forth in this Agreement or would otherwise be so burdensome as to render inadvisable consummation of this transaction.
(vii) No suit, action, investigation, inquiry or other items provided for in Section 10.3proceeding by any governmental body or other person or legal or administrative proceeding shall have been instituted or threatened by any third party which questions the validity or legality of the transactions contemplated hereby and which could reasonably be expected to materially adversely affect Purchaser if the transactions contemplated hereby are consummated.
(b) All Sellers’ obligation to complete this transaction and close on the sale of the Stock shall be subject to fulfillment on or before the Closing Date of each of the following conditions, unless waived in writing by Sellers:
(i) The representations and warranties of Seller contained Purchaser set forth in this Agreement ARTICLE 7 hereof shall be true true, accurate and correct in all material respects as of at the Closing Date (with appropriate modifications permitted under this Agreement). For as though made at and as of that date, except to the avoidance of doubt, the extent such representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity speak as of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunderan earlier date.
(cii) Seller Purchaser shall have performed and observed, in all material respects, respects all covenants and agreements of undertakings required by this Agreement to be performed and observed by Seller as of it on or before the Closing Date.
(diii) At or prior to Closing, the Title Company There shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) have been no material adverse change in the amount financial condition of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsPurchaser.
(eiv) Closing There shall simultaneously take place between KPG Purchasers be no pending material litigation or proceeding against Purchaser which could be an impediment to the closing of this transaction or have a material adverse effect on the Purchaser.
(v) Purchaser shall have entered into the Employment Agreements with Xxxxxx and M-C Xxxxxxx, the forms of which are attached hereto as Exhibit 9(b)(v).
(vi) Purchaser shall have delivered to the Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due documents and certifications indicated in this Agreement.
(vii) Sellers shall have received evidence satisfactory to the bad faith Sellers of all bank regulatory, insurance and intentional acts other governmental and regulatory approvals (including, but not limited to, approvals, authorizations, declarations, licenses, registrations and filings) which are required under or pursuant to applicable laws and regulations, or which are otherwise required by or on the part of the Purchaser or any KPG Purchaser intended and/or Sellers, in order to impede Closing or a breach affect the delivery and performance of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund any agreements related to this Agreement and the transactions contemplated hereby and thereby.
(viii) No suit, action, investigation, inquiry or other proceeding by any governmental body or other person or legal or administrative proceeding shall have been instituted or threatened by any third party which questions the validity or legality of the Xxxxxxx Money Deposit transactions contemplated hereby and interest earned thereon and except with respect which could reasonably be expected to materially adversely affect Sellers or the Termination Surviving Obligations, this Agreement shall be null and void and Corporation if the parties shall have no further obligations to each other hereundertransactions contemplated hereby are consummated.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, conditions any or all of which may be waived by Purchaser in writing in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the date of Closing.
(d) Seller shall have obtained and delivered to Purchaser a tenant estoppel certificate in form and substance satisfactory to Purchaser from each of the tenants under the Leases (the "Tenants"); provided, that this condition may be satisfied by Seller's delivery of a Seller's estoppel certificate in the form prescribed hereby for any Tenant (and provided that in the event that any Tenant Estoppel delivered to and accepted by Purchaser with respect to any Lease shall contain any statement of fact, information or other matter which is inconsistent with the matters stated in Seller's representations in this Agreement, the Tenant Estoppel shall control and Seller shall have no liability for any claim based upon a breach of representation regarding such statement of fact, information or other matter contained in the Tenant Estoppel). Said certificates shall be substantially in the form attached hereto as Exhibit D or D-1, as applicable (as modified to address specific concerns arising as a result of Purchaser's review of the Leases) and shall be dated no earlier than thirty (30) days prior to the Closing Date.
(de) At or prior to Closing, The physical condition of each of the Title Company Properties shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if substantially the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in same on the amount day of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective Closing as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser last day of the Schedule BInspection Period, Section I requirementsreasonable wear and tear and loss by casualty excepted (subject to the provisions of Article VII below), and the payment by Purchaser and, as of the requisite premium. Seller day of Closing, there shall have be no litigation or administrative agency or other governmental proceeding of any kind whatsoever, pending or threatened, which after Closing would, in Purchaser's reasonable discretion, materially adversely affect the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all value of the Other P&S Agreements, unless such failure to close thereunder is due to Properties or the bad faith and intentional acts ability of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under operate the other P&S Agreements of Properties in the manner in which it is a party. If currently being operated, and no proceedings shall be pending or threatened which could or would cause the conditions precedent to Closing under this Section 9.1 are not satisfied redesignation or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund other modification of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to zoning classification of, or of any building or environmental code requirements applicable to, any of the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderProperties.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.4.2 hereof;
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.[intentionally omitted];
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.date of Closing;
(d) At or prior to ClosingThe Property shall be conveyed, and the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser the Title Policy (as hereinafter defined), at Closing subject only to the following matters, which are hereinafter referred to as the “Permitted Exceptions”:
(i) those matters set forth on Exhibit M;
(ii) the rights of tenants under the Leases;
(iii) the lien of all ad valorem real estate taxes and assessments not yet due and payable as of the Closing Date (as defined in Section 4.1), subject to adjustment as herein provided;
(iv) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; and
(v) matters that have arisen as a standard Pennsylvania basic ownerresult of acts done or suffered by or through Purchaser. Evidence of delivery of title subject only to the Permitted Exceptions shall be the issuance by the Title Company, and/or another national title company of its Owner’s title insurance policy Policy of Title Insurance (without regard to any endorsements required by Purchaser or its lenderthe “Title Policy”) covering the Real Property, in the aggregate amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing DatePrice, subject only to the Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsExceptions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser by Seller or Seller’s agents pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date, as if made and updated as of the Closing Date (with appropriate modifications permitted under this Agreementwithout any reference to “knowledge”). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to ClosingPurchaser shall have obtained (i) the written approval of FHLMC, the Title Company holder of the Existing Mortgage Loan on the Property, of the transactions contemplated by this Agreement and continuation of the Existing Mortgage Loan from and after Closing on the terms and conditions set forth in Schedule 4.6(d) attached hereto and made a part hereof and otherwise pursuant to loan documentation in form and substance reasonably satisfactory to Purchaser (collectively, the “Assumed Financing”), (ii) a current estoppel certificate from FHLMC stating that there exists no default under the Existing Mortgage Loan and otherwise in form and substance reasonably satisfactory to Purchaser and (iii) a release of all future personal liability of any of Seller or Seller’s principals who have guaranteed the Existing Mortgage Loan. All costs and charges incurred in obtaining the consent of FHLMC, including any transfer fees shall be prepared, or First American Title Insurance Company’s National Office the obligation of Purchaser. Purchaser shall be prepared if apply for the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount approval of FHLMC of the Purchase Price with respect to Assumed Financing within fifteen (15) days following the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Effective Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing The Title Company shall simultaneously take place between KPG Purchasers and M-C Sellers under all have issued the Title Policy to Purchaser (or unconditionally committed to issue the Title Policy to Purchaser upon receipt of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the title insurance premium therefor).
(f) All other P&S Agreements of which it is a party. If the conditions precedent to Closing under Purchaser’s obligation to consummate the transaction hereunder (if any) which are expressly set forth in this Section 9.1 are not Agreement shall have been satisfied or waived by Purchaser on or before Closingthe Closing Date. In the event any of the foregoing conditions has not been satisfied by the Closing Date other than through failure of Purchaser to fully comply with its obligations under this Agreement, Purchaser shall have the right to terminate this Agreement and receive a by written notice given to Seller on the Closing Date, whereupon Seller shall refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser’s and Seller’s respective rights, remedies and obligations shall instead be determined in accordance with ARTICLE 5.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Paladin Realty Income Properties Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party.
(f) If elected by Seller, Seller shall have provided the Seller provided Purchase Money Loan at Closing pursuant to Section 2.4 above, unless such failure is due to the bad faith and intentional acts of Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(bi) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not materially adverse to Purchaser).
(ii) In no event shall Seller be liable to Purchaser for, or be deemed to be in default hereunder by reason of, any breach of a representation or warranty which results from any change that (i) occurs between the Effective Date and the date of Closing and (ii) is expressly permitted under the terms of this Agreement or is beyond the reasonable control of Seller to prevent; provided, however, that the occurrence of a change which is not permitted hereunder or is beyond the reasonable control of Seller to prevent shall, if materially adverse to Purchaser, constitute the non-fulfillment of the condition set forth in this Section 4.7(b). For the avoidance of doubtIf, despite changes or other matters, the Closing occurs, Seller's representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, this Agreement shall be deemed to have been modified by such changes or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunderother matters.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Health & Retirement Properties Trust)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser Escrow Agent all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3, and Seller shall have provided authority to Escrow Agent to release them to Purchaser.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance date of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company Seller shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue have delivered to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in letter of non-applicability from the amount New Jersey Department of Environmental Protection specifying that the provisions of the Purchase Price with respect Industrial Site Recovery Act do not apply to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as sale of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsthis Property.
(e) Title to the Property shall be in the form as required by Article VI of this Agreement.
(f) Any Updated Survey received by Purchaser prior to the Closing Date shall not disclose any “material changes” from those conditions shown on the Existing Survey. For purposes of this sub-paragraph (e), “material changes” shall mean a condition which either (i) prevents or materially interferes with the use of the Property as it is currently being used, (ii) would result in a material lessening in the value or utility of the Property, or (iii) discloses the material violation of an easement on the Property, including the construction of any building within such easement area in violations of the terms of such easement. In addition, such Updated Survey shall correct the Existing Survey Error.
(g) It shall be a condition to Closing that the Updated Survey and the title insurance policy to be issued to Purchaser at Closing shall simultaneously take place between KPG Purchasers contain the exact same metes and M-C Sellers under all bounds legal description and that the Title Company shall issue an endorsement to the title insurance policy that the property insured by such policy is the same property that is depicted on the Updated Survey. Purchaser and Seller shall cooperate to ensure that the Existing Legal Discrepancy is resolved prior to Closing. In the event that Purchaser shall be unable to resolve the discrepancy, then, upon notice of the Other P&S Agreementssame to Seller, unless such failure Seller shall be provided with a ten (10) day period to close thereunder is due attempt to reconcile the bad faith discrepancy and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If satisfy the conditions precedent to Closing under of this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereundersubparagraph (g).
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date date of Closing, unless otherwise specified below, of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to the Escrow Company, the Title Company or Purchaser (as applicable) all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2 hereof.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the date of Closing.
(c) At least ten (10) business days prior to the Closing Datefor the 12907 Property, the 12907 Loan Assumption Approval shall have occurred in accordance with the provisions of Section 3.3, and Beneficiary is ready, willing and able to close the 12907 Assumption.
(d) At or least three (3) business days prior to Closingthe expiration of the Inspection Period, Seller shall have obtained and delivered to Purchaser estoppel certificates in the form attached hereto as Exhibit I (“Tenant Estoppels”) from Toyota Lift of Los Angeles, the Tenant of the 12907 Property, Industrial Insulations and Sunkist Growers, the Tenants of the 10509 Property and Swefco Packaging and Cardboard Packaging dba RKR Distributors, the Tenants of the 13231 Property which do not (i) disclose any terms of the applicable Lease which are not expressly set forth in said Lease, including, without limitation, additional economic obligations of landlord, that were not previously disclosed to Purchaser in writing, (ii) allege any default of either party under the applicable Lease, (iii) disclose any dispute between Seller and the Tenant in question, (iv) confirm that the applicable Lease is in full force and effect, or (v) include material changes (as determined by Purchaser in its sole but good faith discretion) from the form attached hereto as Exhibit I. If any Tenant Estoppel includes any of the items described in clause (i) through (v) of the preceding sentence, then Purchaser shall approve or may disapprove such Tenant Estoppel prior to the expiration of the Inspection Period (and Purchaser’s failure to respond prior to the expiration of the Inspection Period shall be deemed to be Purchaser’s approval of the Tenant Estoppel in question). At Seller’s option, the Inspection Period may be extended for a period not to exceed thirty (30) days, until (i) any missing Tenant Estoppel is received by Purchaser, and (ii) Purchaser has had at least three (3) business days after receipt of such Tenant Estoppel to review and approve same; provided that such extension does not cause any Tenant Estoppel to be dated more than thirty (30) days before the Closing.
(e) Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to and irrevocably commit committed to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard the Title Policy, with the Required Endorsements, in favor of Purchaser in an amount equal to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect applicable to the Property pursuant in question showing fee simple title to a marked-up title commitment such Property vested in Purchaser subject only to the Permitted Exceptions.
(f) No attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or a pro-forma policy effective other similar proceedings shall be pending or threatened, against the Seller or any Tenant under the Leases.
(g) The Leases shall be in full force and effect without any material monetary default by Seller or the Tenants thereunder.
(h) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the date of Closing.
(i) All of the representations and warranties of Seller contained in this Agreement shall be true and correct as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions any such condition precedent to Closing under this Section 9.1 are has not satisfied or waived by Purchaser on or before Closingbeen satisfied, Purchaser shall have the right to may terminate this Agreement and receive a refund return of the Xxxxxxx Money Deposit and interest earned thereon and except not previously released to Seller in connection with respect to a prior Closing of a sale of any of the Termination Surviving Obligations, this Agreement Properties (less the Independent Consideration which shall be null paid to Seller); provided, however, that prior to such termination, Purchaser shall provide written notice to Seller of its intent to terminate and void and the parties Seller shall have no further obligations ten (10) days from the date of such notice to each other hereunderattempt to satisfy such condition.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rexford Industrial Realty, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in writing in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this AgreementAgreement or not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At Tenant estoppel certificates (“Tenant Estoppel Certificates”) executed by each tenant under the Leases, shall have been delivered to Purchaser at least three (3) business days prior to the Closing Date (the “Tenant Estoppel Delivery Date”), with such estoppel certificates (i) to be substantially in the form attached hereto as Exhibit F and made a part hereof, (ii) to be dated within thirty (30) days prior to the Closing Date, (iii) consistent with the terms of the Leases as contained in the copies of the Leases delivered by Seller to Purchaser, and (iv) disclosing no defaults, disputes or controversies under the Leases as of the date thereof; provided, however, that if Seller has not delivered the Tenant Estoppel Certificates by the Closing Date, Seller or Purchaser shall each have the right, to extend the Closing Date to obtain the required Tenant Estoppel Certificates until the earlier to occur of (i) five (5) business days after the Tenant Estoppel Certificates have been delivered to Purchaser or (ii) thirty (30) days after the originally scheduled Closing Date, by delivering written notice of such extension to the other party on or prior to the Tenant Estoppel Delivery Date. The delivery of said Tenant Estoppel shall be a condition of Closing, but the failure or inability of Seller to obtain and deliver said Tenant Estoppel, Seller having used reasonable efforts to obtain the same, shall not constitute a default by Seller under this Agreement.
(e) Upon the sole condition of payment of the premium, at Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) the Title Policy, dated as of the date and time of the recording of the Deed, in the amount of the Purchase Price with respect Price, insuring Purchaser as owner of good and marketable fee simple title to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as Property, free and clear of the Closing Dateliens, subject only to the Permitted Exceptions Exceptions, and containing the standard printed exceptions on such policy, upon endorsements that the fulfillment by Seller and Purchaser Title Company agreed to issue during the Inspection Period; If any of the Schedule B, conditions in this Section I requirements, 4.6 have not been satisfied (or otherwise waived in writing by Purchaser) prior to or on the Closing Date (as the same may be extended or postponed as provided in this Agreement) and the payment by Purchaser subject to and without limitation of the requisite premium. Seller shall have provisions of Section 6.2 to the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all extent the failure of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it closing condition is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before ClosingSeller default, Purchaser shall have the right to terminate this Agreement and receive a refund of by written notice to Seller given prior to the Xxxxxxx Closing, whereupon Escrow Agent shall return the Exxxxxx Money Deposit and interest earned thereon to Purchaser and except with respect to the Termination Surviving Obligations, for those provisions of this Agreement shall be null and void and which by their express terms survive the parties termination of this Agreement, no party hereto shall have no any other or further rights or obligations to each other hereunderunder this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Nuveen Global Cities REIT, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date (except as otherwise provided) of all of the following conditions, any or all of which may be waived by Purchaser in its sole and absolute discretion:
(a) 4.6.1 Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) 4.6.2 All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (date of Closing.
4.6.3 The Title Company shall have issued, or be irrevocably committed to issue, to Purchaser the Owner’s Policy together with appropriate modifications permitted under this Agreement). For an extended coverage endorsement, covering the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes Real Property in the identity aggregate amount of the Tenants and Purchase Price, insuring that fee title to the Leases Real Property is vested in Purchaser subject only to the Permitted Exceptions (that are the inclusion of any additional endorsements to the Owner’s Policy shall not in violation of the operating covenants set forth in Section 7.1 abovebe a condition hereunder), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) 4.6.4 Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. 4.6.5 Seller shall have delivered to Purchaser prior to the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all end of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser Inspection Period an acceptable Tenant Estoppel Certificate from each tenant under the other P&S Agreements Leases. For the purposes of this Section 4.6.5, a Tenant Estoppel Certificate shall be acceptable if substantially in the form and substance provided in Section 5.4.4 of this Agreement, without material modification, without any information which it is a partyinconsistent with the terms of the applicable lease, executed by the tenant. If any of the conditions precedent to Closing Purchaser’s obligations under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, 4.6 shall fail to occur then Purchaser shall have the right to terminate this Agreement and receive a refund of by delivering written notice to Seller prior to the Closing, in which event the Xxxxxxx Money Deposit shall be disbursed to Purchaser and interest earned thereon and neither party shall have any further rights or obligations hereunder (except with respect for those obligations of either party that expressly survive the termination of this Agreement pursuant to the Termination Surviving Obligationsother provisions of this Agreement); provided, however, that nothing contained in this Agreement Section 4.6 shall be null and void and the parties shall have no further obligations to each other hereunderlimit Purchaser’s remedies for a default by Seller under this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Material Sciences Corp)
Conditions Precedent to Obligation of Purchaser. The ----------------------------------------------- obligation of Purchaser to consummate effect the transaction hereunder transactions contemplated by this Agreement shall be subject to the fulfillment on satisfaction or before waiver at or prior to the Closing Date of all of the following additional conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller the Bidding Procedures Order shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant been entered on or before December 15, 2001, and shall have become a Final Order prior to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.Closing Date;
(b) All The Section 363/365 Order shall have been entered by the Bankruptcy Court on or before January 7, 2002 and such order shall not have been stayed, modified, reversed or amended; provided, however, that if such order is stayed, modified or amended, and the stay is lifted, or after the order is modified or amended, the order remains in a form reasonably acceptable to Purchaser, then, at Purchaser's option, the condition shall be satisfied;
(c) The Section 363/365 Order shall have been entered by the Bankruptcy Court on or before January 7, 2002, and no appeal shall have been taken, or stay requested or reconsideration sought from the Bankruptcy Court or other court. Notwithstanding the above, Purchaser may in its sole discretion elect to proceed with Closing.
(d) Seller shall have performed in all material respects all of its obligations under this Agreement required to be performed by Seller at or prior to the Closing Date and the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects (except that any representation or warranty qualified by materiality or a Material Adverse Effect shall be true and correct in all respects) as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations as if made at and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.date;
(e) there shall not have occurred any Material Adverse Effect on or at any time after the date of this Agreement;
(f) there shall not be in effect on the Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all Date any Order or Law restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the Other P&S Agreementstransactions contemplated by this Agreement, unless and there shall not be pending on the Closing Date any Action or Proceeding which could reasonably be expected to result in the issuance of any such failure Order or the enactment, promulgation or deemed applicability to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach the transactions contemplated by this Agreement of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except such Law;
(g) with respect to any License of any right to Intellectual Property from the Termination Surviving ObligationsSeller to any third party, this Agreement such License shall be null and void and continue after the parties Closing only with respect to such rights to Intellectual Property as they existed immediately before the Chapter 11 Case commenced within the meaning of Section 365(n) of the Bankruptcy Code;
(h) none of the Chapter 11 Case shall have no further obligations been dismissed or converted to each a case under Chapter 7 of the Bankruptcy Code and neither Seller nor any of its Subsidiaries shall have filed a motion or other hereunderpleading seeking the dismissal of any of the Chapter 11 Case under Section 1112 of the Bankruptcy Code or otherwise; and
(i) all consents, approvals, authorizations, declarations and filings referred to in Section 3.3(a) and on Schedule 3.3 shall have been obtained in ------------ form and substance reasonably satisfactory to Purchaser.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be Transaction is subject to the fulfillment satisfaction or waiver, on or before the Closing Date of all prior to Closing, of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the The representations and warranties of Seller contained Sellers set forth in this Agreement Article V shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the other than those representations and warranties contained which address matters only as of a particular date, which shall have been true and correct in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity all material respects only as of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 abovesuch particular date), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.;
(cb) Seller Sellers shall have performed and observed, complied in all material respects, respects with all agreements and covenants and agreements of required by this Agreement to be performed and observed or complied with by Seller as of Sellers on or prior to the Closing Date.;
(c) There shall not be in effect any Order by a Governmental Authority of competent jurisdiction enjoining, preventing, restraining or otherwise prohibiting the consummation of the Transaction; provided, that prior to asserting the failure of this condition Purchaser shall have used its commercially reasonable efforts to have such Order vacated;
(d) At (i) (x) all waiting periods and other approvals applicable to the Transaction under the HSR Act shall have expired or prior been earlier terminated or (y) Sellers shall have obtained written notification from a Governmental Authority to Closingthe effect that the Transaction does not violate the antitrust laws of the United States, (ii) Sellers shall have obtained the Title Company approvals or consents set forth on Schedule 9.1(d)(ii) from the relevant Governmental Authority and such approvals or consents shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of effect on the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.; and
(e) Closing There shall simultaneously take place between KPG Purchasers and M-C Sellers under all not be in effect any Order by a Governmental Authority of competent jurisdiction enjoining, preventing, restraining or otherwise prohibiting the consummation of the Other P&S Agreements, unless Transaction; provided that prior to asserting the failure of this condition Sellers shall have used their respective commercially reasonable efforts to have such failure Order vacated.
(f) The Refinery and the Assets shall be in good working order and shall have operated for a period of at least fifteen (15) consecutive days after the Specified Matters Remediation in accordance with the restart criteria set out in Schedule 9.1(f); and
(g) Subject to close thereunder is due to the bad faith and intentional acts performance by Purchaser of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any its material covenant of Purchaser under this Agreement or any KPG Purchaser obligations under the other P&S Agreements of which it is a party. If Pre-Closing Transition (including the conditions precedent to System Transition Plan), the Pre-Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser Transition (including the System Transition Plan) shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except been completed in all material respects in accordance with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties Schedule 8.14.
(h) The Required Permits set forth on Schedule 9.1(h) shall have no further obligations been obtained or reasonable assurance of obtaining such Required Permits shall have been received that allows Purchaser to each other hereunderoperate in the interim.
(i) The requirements of Schedule 9.1(i) shall have been met.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser Purchaser, in writing, in its sole discretion:
(a) Seller shall have delivered to Purchaser or Escrow Agent all of the items required to be delivered to Purchaser such party pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.34.2 hereof.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance date of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have made reasonable commercial efforts to deliver to Purchaser within two (2) business days after Seller’s receipt thereof, if so received, an original Tenant Estoppel duly completed and executed by the right to arrange for First American Title Insurance Company’s National Office to become involved tenant under the Lease. The foregoing condition shall not be applicable in such title decisionsthe event that Seller terminates the Lease as permitted under Section 5.4(c) hereof.
(e) Closing Title Company shall simultaneously take place between KPG Purchasers be irrevocably and M-C Sellers under all unconditionally committed to issue the Title Policy to Purchaser, and, if a Proforma is obtained by Purchaser from the Title Company prior to the expiration of the Other P&S AgreementsInspection Period, unless such failure the Title Policy shall be in the form of the Proforma.
(f) The Hotel Management Agreement shall have been terminated at no cost or expense to close thereunder is due Purchaser.
(g) Franchisor shall have consented to the bad faith and intentional acts sale of the Hotel to Purchaser or any KPG the Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser and Franchisor shall have executed the right to terminate this New Franchise Agreement and receive a refund of that certain Franchise Agreement by and between Seller and Franchisor dated July 30, 2010 (the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties “Existing Franchise Agreement”) shall have no further obligations to each other hereunderbeen terminated.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Procaccianti Hotel Reit, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not materially adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At Receipt of the Title Policy (or prior an irrevocable commitment to Closingissue the same) in the form prescribed by Section 6.2 above, along with Seller’s delivery of such evidence (including, owner’s affidavits and gap indemnities) as the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if may reasonably require to issue the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved Policy in such title decisionsrequired form.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all Receipt of the Other P&S AgreementsTenant Estoppel Certificate If, unless such failure to close thereunder is due to by the bad faith date and intentional acts time of Purchaser or Closing, any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the foregoing conditions precedent to Closing under this Section 9.1 are not performed or satisfied or for any reason whatsoever or, alternatively, are not expressly waived by Purchaser on or before Closingin writing, Purchaser shall shall, in addition to any other remedies it may be entitled to as set forth in Section 13.1 below, have the right to terminate this Agreement and receive a refund of Agreement, whereupon the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations returned to each other hereunderPurchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not materially adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At Receipt of the Title Policy (or prior an irrevocable commitment to Closingissue the same) in the form prescribed by Section 6.2 above, along with Seller's delivery of such evidence (including, owner's affidavits and gap indemnities) as the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if may reasonably require to issue the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved Policy in such title decisionsrequired form.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all Receipt of the Other P&S AgreementsTenant Estoppel Certificate If, unless such failure to close thereunder is due to by the bad faith date and intentional acts time of Purchaser or Closing, any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the foregoing conditions precedent to Closing under this Section 9.1 are not performed or satisfied or for any reason whatsoever or, alternatively, are not expressly waived by Purchaser on or before Closingin writing, Purchaser shall shall, in addition to any other remedies it may be entitled to as set forth in
Section 13.1 below, have the right to terminate this Agreement and receive a refund of Agreement, whereupon the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations returned to each other hereunderPurchaser.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser by Seller or Seller’s agents pursuant to Section 4.2 , and any other material items required to be delivered to Purchaser by Seller or Seller’s agents pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At All other material conditions precedent to Purchaser’s obligation to consummate the transaction hereunder (if any) which are expressly set forth in this Agreement shall have been satisfied on or prior to before the date of Closing, . In the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to event any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of foregoing conditions has not been satisfied by the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a by written notice given to Seller on the Closing Date, whereupon Escrow Agent shall promptly refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser’s and Seller’s respective rights, remedies and obligations shall instead be determined in accordance with ARTICLE 6.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Post Apartment Homes Lp)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction transactions hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:. In the event that any of the following conditions have not been satisfied or waived at or prior to Closing, Purchaser may terminate this Agreement upon written notice thereof to Sellers and, subject to the terms and conditions of Sections 6.2 and 10.24 hereof, neither party shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement.
(a) Seller Sellers shall have delivered into escrow with the Title Company or to Purchaser Purchaser, as applicable, all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.34.2 hereof.
(b) All of the representations and warranties of Seller Sellers contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance same effect as if made on and as of doubtthe Closing Date, except for the representations and warranties contained expressly limited by a specific date, which will be true and correct in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults all material respects as limited by the service providers thereunderspecified date (subject to the last paragraph of Section 5.1).
(c) Seller Sellers shall have performed and observed, in all material respects, all covenants and agreements of under this Agreement to be performed and observed by each and every Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, unconditionally committed (upon receipt from Purchaser of (i) payment of any premium or First American fee for the Title Insurance Company’s National Office shall Polices or endorsements thereto required to be prepared if paid by Purchaser pursuant to the terms of this Agreement and (ii) any documents and instruments required by the Title Company is not so prepared, to irrevocably commit be delivered by Purchaser) to issue to Purchaser a standard Pennsylvania basic owneran Owner’s title insurance policy Policy of Title Insurance for each Property (without regard to any endorsements the “Title Policies”) in its Allocated Amount (in the form promulgated by ALTA or such other form as is required by applicable state law), insuring Purchaser or its lender) in as the amount fee simple owner of the Purchase Price with respect to Land and the Property pursuant to a marked-up title commitment or a pro-forma policy Improvements, which shall be effective as the date and time of the Closing Date, subject recording of the applicable Deed and shall contain as exceptions to coverage only to Permitted Exceptions the standard exceptions (other than those that would be removed by a Seller’s affidavit delivered pursuant Section 4.2(k)) and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsPermitted Exceptions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure At least five (5) business days prior to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser Athens Seller shall have the right delivered to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except Purchaser, with respect to that certain Amended and Restated Reciprocal Easement and Cost Sharing Agreement (the Termination Surviving Obligations“REA”), dated November 21, 2007, recorded at Deed Book 3427, page 1, in the Office of the Clerk of the Superior Court of Athens-Xxxxxx County, Georgia, an executed estoppel from The Lodge at Athens Condominium Association, Inc. (or its successor in interest) (the “Association”) substantially in the form and substance of Exhibit L attached hereto and incorporated herein by reference (the “REA Estoppel”). If Athens Seller is unable to timely obtain the REA Estoppel from the Association, however, Athens Seller shall have delivered to Purchaser prior to Closing a fully executed estoppel certificate, substantially in the form of Exhibit L (with conforming changes for the following matters: (i) qualification of the matters therein to the knowledge of Athens Seller as defined in this Agreement Agreement, (ii) removal of Sections 5 and 7 thereof, and (iii) a provision that such certification shall be null and void expire upon the earlier to occur of Purchaser’s receipt of an REA Estoppel and the parties shall have no further obligations to each other hereunderend of the Survival Period) (a “Seller Estoppel Certificate”).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) 4.6.1 Each Seller Entity shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) 4.6.2 All of the representations and warranties of each Seller Entity contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) 4.6.3 Each Seller Entity shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by each Seller Entity as of the Closing Date.
4.6.4 Purchaser shall have received and delivered to Purchaser at least two (d2) At or business days prior to Closing, the Closing Date all of the Required Tenant Estoppels.
4.6.5 The Title Company shall issue (or be prepared, or First American prepared and irrevocably and unconditionally committed to issue) the Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) Policies in the amount form required under Section 2.4 hereof. In the event any of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the foregoing conditions precedent to Closing under this Section 9.1 are not satisfied fulfilled by Sellers or waived by Purchaser on or before by Closing, Purchaser may terminate this Agreement as to all Properties by giving written notice to Seller Contract Agent on the Closing Date and the Xxxxxxx Money shall be returned to Purchaser and neither party hereto shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement. Notwithstanding the foregoing, to the extent that the failure of any of the foregoing conditions is the result of any Seller Entity’s default under its obligations hereunder, and Purchaser elects to terminate the Agreement, then, in addition to any other rights hereunder, Purchaser may exercise its rights pursuant to Section 6.2 hereof. If Closing shall occur, all of the foregoing conditions precedent shall be deemed to have been satisfied. Notwithstanding anything to the contrary contained herein, no Seller Entity shall be in default of this Agreement by virtue of its failure to obtain a Required Tenant Estoppel required pursuant to Section 4.6.4, above, and Purchaser’s sole right in such case shall be to terminate this Agreement as to all Properties and receive a return of the Xxxxxxx Money and neither party hereto shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement. Further, notwithstanding anything to the contrary, in the event any condition described in Section 4.6.4 remains unsatisfied, then either Sellers or Purchaser shall have the right election, each in its sole and absolute discretion (but without any obligation to terminate this Agreement and receive a refund do so) of extending the Xxxxxxx Money Deposit and interest earned thereon and except with respect Closing Date for up to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations ten (10) business days in order to each other hereundersatisfy such condition.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Property Trust Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser by Seller or Seller’s agents pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing, as if made and updated as of the Closing Date (with appropriate modifications permitted under without any reference to “knowledge” for purposes of satisfying this AgreementClosing condition). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At All other conditions precedent to Purchaser’s obligation to consummate the transaction hereunder (if any) which are set forth in this Agreement shall have been satisfied on or prior to before the date of Closing, . In the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to event any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of foregoing conditions has not been satisfied by the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, then Purchaser shall have the right to terminate option of (i) waiving (in writing) the Closing condition and closing in accordance with the other terms and provisions of this Agreement, or (ii) terminating this Agreement and receive a by written notice given to Seller on the Closing Date, whereupon Escrow Agent shall refund of the Xxxxxxx Exxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other hereundersurvive the termination of this Agreement; or (iii) extending the Closing Date for a period not to exceed thirty (30) days to allow all Closing conditions precedent to be fulfilled, and if any of them are not fulfilled by the extended Closing Date, Purchaser shall once again have the option to elect (i) or (ii) immediately above.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser or deposited with Escrow Agent all of the items required to be delivered to Purchaser or deposited with Escrow Agent pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not materially adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior to Closing, the [Intentionally Omitted]
(e) The Title Company shall be preparedcommitted (through written closing instructions or otherwise) to issue the Title Policy to Purchaser.
(f) Purchaser shall have received estoppels from each party to the Operating Agreements listed on Schedule 4.6(f) as “Required Estoppel” (each such estoppel being a “Required Estoppel”). For purposes of this Section 4.6(f), any Required Estoppel to be received shall satisfy the requirement set forth above if such estoppel discloses no material adverse matters (excluding any matters actually known to any Purchaser Knowledge Party (defined below) as of the Effective Date) and (A) is in substantially the form attached to the applicable Operating Agreement or otherwise satisfies the estoppel requirements under such agreement, or First American Title Insurance Company’s National Office shall be prepared if (B) is in substantially the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with form attached as Exhibit I. With respect to the Property pursuant Other Estoppels listed on Schedule 4.6(f), Seller shall use commercially reasonable efforts to a marked-up title commitment or a pro-forma policy effective as of obtain such estoppels prior to the Outside Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach The receipt of any material covenant of Purchaser estoppel other than the Required Estoppels shall not be a condition to Purchaser’s obligation to purchase the Property under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderAgreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Hotel Capital Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.4.2 hereof and the representation letter provided for in Section 10.16 hereof;
(b) All all of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance date of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.;
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.date of Closing;
(d) At or Seller shall have delivered to Purchaser an estoppel certificate from each of the tenants at the Property in a form and of content acceptable to Purchaser at least ten (10) days prior to Closing, the end of the Due Diligence Period.
(e) the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to and irrevocably commit committed to issue to Purchaser the Title Policy and all endorsements Purchaser may request and the Title Company has agreed to issue prior to expiration of the Title Inspection Period, in an amount equal to the Purchase Price;
(f) the physical condition of the Property shall be substantially the same on the Closing Date as on the Effective Date, reasonable wear and tear excepted, subject to Article VII below;
(g) no proceeding shall have been commenced against Seller under the federal Bankruptcy Code or any state law for relief of debtors;
(h) no moratorium, statute or regulation of any governmental agency or order or ruling of any court shall have been enacted, adopted, or issued which would have a standard Pennsylvania basic owner’s title insurance policy material adverse affect on Purchaser's use or development of the Property; and
(without regard to any endorsements required by i) Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a markedsuccessor-up title commitment or a proin-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, interest have closed upon the fulfillment by Seller and Purchaser funding of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.its Initial Public Offering; and
Appears in 1 contract
Samples: Purchase and Sale Agreement (BioMed Realty Trust Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date, as remade on the Closing Date (with appropriate modifications permitted under this Agreement). For pursuant to the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth certificate described in Section 7.1 4.2(u) above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(cb) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(c) Seller shall have delivered to Purchaser or deposited with Escrow Agent all of the items required to be delivered to Purchaser or deposited with Escrow Agent pursuant to the terms of this Agreement, including, but not limited to, those provided for in Section 4.2 (as may be modified as set forth therein), including, without limitation, the Common Charge Statement.
(d) At Title Company shall have issued, or prior be unconditionally (subject to Closingpayment of title premiums) committed to issue, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsPolicy.
(e) Closing Seller shall simultaneously take place between KPG Purchasers and M-C Sellers have delivered to Purchaser a Tenant Estoppel from Starbucks substantially in the form required under all Section 5.6(b) or a Seller Estoppel in lieu thereof in accordance with Section 5.6(b).
(f) The Mortgage Assignment shall have been obtained or, if the Mortgage Assignment has not been obtained, Seller shall have affirmatively elected to provide to Purchaser a credit against the Purchase Price in amount of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this mortgage recording tax savings that would have been achieved thereby in accordance with Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder2.6.
Appears in 1 contract
Samples: Purchase and Sale Agreement (LaSalle Hotel Properties)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the material items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At If being assumed by Purchaser, Seller shall have delivered or prior caused to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue delivered to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in statement from the holder of the GE Mortgage of the amount of the Purchase Price with respect mortgage being assumed, unless the holder shall have provided such statement directly to Purchaser. In the Property pursuant to a marked-up title commitment event any of the foregoing conditions has not been satisfied on or a pro-forma policy effective as of before the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a by written notice given to Seller on or before the Closing Date, whereupon Escrow Agent shall refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser’s and Seller’s respective rights, remedies and obligations shall instead be determined in accordance with Article 6.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Parlux Fragrances Inc)
Conditions Precedent to Obligation of Purchaser. The ----------------------------------------------- obligation of Purchaser to consummate effect the transaction hereunder transactions contemplated by this Agreement shall be subject to the fulfillment on satisfaction or before waiver at or prior to the Closing Date of all of the following additional conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller the Bidding Procedures Order shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant been entered on or before December 15, 2001, and shall have become a Final Order prior to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.Closing Date;
(b) All The Section 363/365 Order shall have been entered by the Bankruptcy Court on or before January 4, 2002 and such order shall not have been stayed, modified, reversed or amended; provided, however, that if such order is stayed, modified or amended, and the stay is lifted, or after the order is modified or amended, the order remains in a form reasonably acceptable to Purchaser, then, at Purchaser's option, the condition shall be satisfied;
(c) The Section 363/365 Order shall have been entered by the Bankruptcy Court on or before January 4, 2002, and no appeal shall have been taken, or stay requested or reconsideration sought from the Bankruptcy Court or other court. Notwithstanding the above, Purchaser may in its sole discretion elect to proceed with Closing.
(d) Seller shall have performed in all material respects all of its obligations under this Agreement required to be performed by Seller at or prior to the Closing Date and the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects (except that any representation or warranty qualified by materiality or a Material Adverse Effect shall be true and correct in all respects) as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations as if made at and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.date;
(e) there shall not have occurred any Material Adverse Effect on or at any time after the date of this Agreement;
(f) there shall not be in effect on the Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all Date any Order or Law restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the Other P&S Agreementstransactions contemplated by this Agreement, unless and there shall not be pending on the Closing Date any Action or Proceeding which could reasonably be expected to result in the issuance of any such failure Order or the enactment, promulgation or deemed applicability to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach the transactions contemplated by this Agreement of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except such Law;
(g) with respect to any License of any right to Intellectual Property from the Termination Surviving ObligationsSeller to any third party, this Agreement such License shall be null continue after the Closing only with respect to such rights to Intellectual Property as they existed immediately before the Chapter 11 Case commenced within the meaning of Section 365(n) of the Bankruptcy Code; provided that Seller shall reject all Licenses (and void and rights thereunder) of trademarks included in the parties Acquired Assets in favor of any Person other than Purchaser;
(h) none of the Chapter 11 Case shall have no further obligations been dismissed or converted to each a case under Chapter 7 of the Bankruptcy Code and neither Seller nor any of its Subsidiaries shall have filed a motion or other hereunderpleading seeking the dismissal of any of the Chapter 11 Case under Section 1112 of the Bankruptcy Code or otherwise; and
(i) all consents, approvals, authorizations, declarations and filings referred to in Section 3.3(a) and on Schedule 3.3 shall have been ------------ obtained in form and substance reasonably satisfactory to Purchaser.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2 hereof.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not materially adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior The tenant under the Lease shall have delivered to ClosingSeller (for delivery to Purchaser) the Tenant Estoppel (notwithstanding the provisions of Section 4.2(e)), the Title Company which Tenant Estoppel shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so preparedstate, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic ownertenant’s title insurance policy (without regard to knowledge, that there is no default by landlord under the Lease and shall not set forth any endorsements required by Purchaser or its lender) lease terms that are inconsistent with the terms contained in the amount copy of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment Lease provided by Seller to Purchaser. Purchaser acknowledges and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right agrees that its obligation to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser perform under this Agreement is not contingent upon Purchaser’s ability to obtain any (i) governmental or quasi-governmental approvals or changes or modifications in use or zoning, (ii) modification of any KPG Purchaser under the other P&S existing land use restriction, (iii) consents to assignments of any Operating Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect (iv) endorsements to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderTitle Policy.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Fund Viii Lp)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be and effect this Agreement are subject to the fulfillment satisfaction in all material respects, on or before the Closing Date of all Date, of the following conditions, any or all of which may be conditions (unless waived by Purchaser in its sole discretion:writing in the manner provided in this Agreement):
(a) Seller shall have delivered to Purchaser all The representations and warranties of the items required to be delivered to Purchaser pursuant to the terms of Seller, NCR and Medix, set forth in this Agreement, including but not limited and in any Schedules or Exhibits annexed shall be accurate in all materials respects on and as of the Closing as though made on and as of the Closing (except where expressly stated to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.be as of an earlier date);
(b) All Seller, NCR and Medix shall each have performed all obligations and complied with all covenants required to be performed or to be complied with by it under this Agreement prior to the Closing;
(c) Purchaser shall have received a certificate dated as of the Closing and signed by the President of Seller, NCR and Medix to the effect that the representations and warranties of Seller contained made by Seller, NCR and Medix in this Agreement shall be Agree- ment are true and correct accurate in all material respects as of the Closing Date in the form attached as Exhibit 8.2(c);
(d) All action necessary to authorize the execution, delivery and performance of this Agreement by Seller, NCR and Medix and the consummation of the transactions contemplated hereby shall have been duly and validly taken by Seller, NCR and Medix;
(e) Seller, NCR and Medix shall have furnished Purchaser with appropriate modifications permitted under this Agreement). For copies of all consents or resolutions adopted or executed by Seller, NCR and Medix in connection with such actions, certified by the avoidance Secretary of doubtSeller, the representations NCR and warranties contained in Subsections 8.1 Medix;
(f) There shall have been no event or change occurring between the execution of this Agreement and the Closing which in the aggregate may be deemed to have an adverse effect on the business, operations, financial condition or properties of the Business which is material to purchaser as purchaser of the Assets;
(g) may There shall be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above)no actions, notices received from proceedings or inves-tigations pending or threatened against Seller, NCR or Medix or its officers or directors before any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcycourt, any Tenant defaults between administrative agency or administrative officer or executive. Seller shall have delivered to Purchaser at or prior to the date hereof and Closing, the instruments required under Sections 3.8 and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.3.9;
(ch) Seller shall have performed obtained, or caused to be obtained, and observedshall have delivered to Purchaser, each consent and approval necessary in all order that the transactions contemplated herein not constitute a breach or violation of, or result in a right of termination or acceleration of, or creation of any encumbrance on any of the Assets, pursuant to the provisions of any agreement, arrangement or undertaking of or affecting Seller, NCR, Medix, STAT or Xxxxx or any license, franchise or permit of or affecting Seller, NCR, Medix, STAT or Xxxxx;
(i) All material respectsgovernmental filings, all covenants authorizations and agreements approvals that are required for the consummation of the transactions contemplated hereby shall have been duly made and obtained by Seller, NCR and Medix (excepting filing required by Purchaser pursuant to applicable securities laws);
(j) Purchaser shall not have discovered any fact or circumstance existing as of the date of this Agreement or as of the Closing Date which has not been disclosed to be performed and observed by Seller Purchaser as of this date of this Agreement (or as of the Closing Date) regarding the Business, Assets, liabilities, properties, condition (financial or otherwise), results of operations or prospects of Seller which is, individually or in the aggregate with other such facts and circumstances, materially adverse to Seller or the value of the Assets;
(k) There shall have been no damage, destruction or loss of or to any of the Assets, whether or not covered by insurance, which in the aggregate, has or would be reasonably likely to have a material adverse effect on Seller;
(l) Seller, NCR and Medix, and Seller's Principals shall have executed and delivered to Purchaser their Non-Competition Agreements in the form annexed hereto as Exhibit 8.2(e);
(m) Seller shall have obtained and delivered to Purchaser at or prior to the closing the written consent from Montefiore Medical Center and Xxxx Xxxxxxx Home for the assignment to Purchaser of the contract between each of them and Seller, NCR, Medix, STAT or Xxxxx for the provision of services or staff, and for the transfer to Purchaser of their patients receiving home care service from Seller, and such assignments shall be executed by Seller and delivered to Purchaser at the Closing.
(dn) At Seller shall have obtained and delivered to Purchaser at or prior to Closingthe closing releases and duly executed UCC-3 forms in duplicate for all liens and security agreements affecting Seller, the Title Company shall be preparedNCR, Medix, STAT or Xxxxx, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to affecting any endorsements required by Purchaser or its lender) in the amount of the Purchase Price Assets, including but not limited to liens in favor of Paxxon Services, Inc., Xxxxx Home Care Services, Inc., HealthPartners Funding, L.P. and HCFP Funding, Inc. Said UCC-3 forms either to terminate such liens or to subordinate or modify the liens so as not to prevent or interfere with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment transaction contemplated by Seller and Purchaser of the Schedule B, Section I requirementsthis Agreement, and the payment by Purchaser of the requisite premium. to be inform reasonably satisfactory to Purchaser's counsel.
(o) Seller shall have delivered to Purchaser at or prior to the right to arrange closing personnel files for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all employees of the Other P&S AgreementsBusiness, unless such failure to close thereunder is due containing all current documentation required by the Public Health Law and the regulations of the Department of Health of New York State Section 505.14 of the social services regulations, and any other law or regulations of any governmental body having jurisdiction over or applicable to the bad faith Business including, but not limited to, valid certificates substantiating the professional or paraprofessional status of each employee, I-9 forms, reports of medical examination and intentional acts inoculations, references, records of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement in-service training and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderperformance evaluations.
Appears in 1 contract
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Purchaser shall have readily available funds in the aggregate sum of at least $85,125,000 resulting from: (i) obtaining a mortgage loan to finance the acquisition of the Property in the amount of at least $37,825,000 on market terms and conditions (the “Mortgage Loan”) and (ii) an initial public offering (the “IPO”) of Series A-1 common shares of the Series A-1 of ETRE REIT, which will directly or indirectly own the Property, where the net proceeds of such IPO shall be in the amount of at least $47,300,000. Purchaser shall use commercially reasonable efforts to close the Mortgage Loan and complete the IPO. Notwithstanding anything to the contrary contained herein, if Purchaser, despite its best efforts, is unable to satisfy the lender’s requirements for closing the Mortgage Loan, then Seller shall have the right, in its sole and absolute discretion, to elect to make the Mortgage Loan substantially on the same terms and conditions as set forth in the lender’s mortgage loan commitment, and, if circulated by the lender, the lender’s proposed loan documents to evidence and secure such loan, but with the waiver or modification of the unsatisfied requirements.
(b) Seller shall have delivered to Purchaser (directly or by delivery into escrow with Escrow Agent) all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.
(bc) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects when made and as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubtClosing, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing except to reflect changes in the identity such new Leases and/or Service Contracts or terminations of the Tenants and the or amendments to Leases (and/or Service Contracts that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, either permitted or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults otherwise consented to by the service providers thereunderPurchaser pursuant to Article VII.
(cd) Seller shall have performed and observed, in all material respects, all covenants and agreements of set forth under this Agreement to be performed and observed by Seller as of the Closing Date.
(de) At Seller shall have obtained all consents necessary to consummate the transactions contemplated in this Agreement and the other Seller's Documents.
(f) There shall not be in effect any Law or prior to Closing, any injunction that prohibits the transactions contemplated in this Agreement and the other Seller's Documents.
(g) The Title Company shall be preparedirrevocably committed to issue, or First American shall have issued, the Title Insurance Company’s National Office Policy to Purchaser and the Mortgagee Title Policy to Purchaser's lender, with such endorsements as Purchaser and/or Purchaser's lender shall reasonably require.
(h) Possession of the Property shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue delivered to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Dateat Closing, subject only to Permitted Exceptions (i) the Leases (and rights arising under or pursuant to the standard printed exceptions on such policy, upon Leases) and (ii) the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Approved Title Insurance Company’s National Office to become involved in such title decisionsConditions.
(ei) Closing Purchaser shall simultaneously take place between KPG Purchasers and M-C Sellers under have received all of the Other P&S Agreements, unless such failure certificates required pursuant to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder7.2.
Appears in 1 contract
Samples: Sale Agreement (Etre Reit, LLC)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser or deposited with Escrow Agent all of the items required to be delivered to Purchaser or deposited with Escrow Agent pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not materially adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At Title Company (or prior another nationally recognized title company licensed to Closing, do business in Hawaii) shall be committed to issue the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) Policy in the amount of the Purchase Price with respect and showing title to the Real Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, vested in Purchaser subject only to the Permitted Exceptions (and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right any items to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsbe recorded at Closing).
(e) Closing The Department of Liquor Control - County of Maui shall simultaneously take place between KPG Purchasers and M-C Sellers under all be prepared to issue to Purchaser, upon receipt of evidence of the Other P&S Agreements, unless such failure to close thereunder is due to transfer of the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Hotel promptly following Closing, a temporary liquor license that allows the service of alcohol at the Hotel.
(f) Purchaser shall have received either (i) an executed estoppel certificate from Manager in substantially the right to terminate this Agreement and receive a refund of form attached hereto as Exhibit H-1, (ii) an executed estoppel certificate from Manager containing the Xxxxxxx Money Deposit and interest earned thereon and except with respect to Required Information (as defined below) or (iii) an executed estoppel certificate in the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunderform attached hereto as Exhibit H-3.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Maui Land & Pineapple Co Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Scheduled Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser Escrow Agent all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.
(b) All Subject to the provisions of Section 8.6(a), all of the representations and warranties of each Seller Entity and Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunderDate.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company Schwab shall be preparednot have commenced a voluntary case, or First American Title Insurance Company’s National Office shall be prepared if had entered against it a petition, for relief under any federal bankruptcy act or any similar petition, order or decree under any federal or state law or statute relative to bankruptcy, insolvency or other relief for debtors, during the Title Company is not so preparedperiod from the Effective Date to, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of and including, the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) The Amended Financial Agreement shall be in full force and effect.
(f) No temporary restraining order, preliminary or permanent injunction or other order or decree issued by any court of competent jurisdiction or other legal restraint or prohibition (collectively, “Legal Restraints) that has the effect of preventing the consummation of the transaction contemplated hereby shall be in effect.
(g) The CREA and the CRA shall have been recorded against the Real Property.
(h) Title to the Real Property and Improvements shall be in the condition required pursuant to Article VI of this Agreement.
(i) The Excluded Real Property shall have been, or simultaneously with the Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of be, conveyed to 8/9 Transferee.
(j) The Approvals shall have been obtained.
(k) The Permit Condition shall have been satisfied.
(l) The Retained Entity shall have contributed the Other P&S Agreements, unless such failure Retained Interest to close thereunder is due Purchaser pursuant to the bad faith Retained Interest Assignments, and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closingif required, Harsimus shall have consented thereto.
(m) Purchaser shall have received an estoppel certificate executed by Schwab certifying as to the right to terminate this Agreement and receive a refund items specified in the first sentence of Section 9.02 of the Xxxxxxx Money Deposit and interest earned thereon and except with respect Schwab Lease (the “Threshold Estoppel Certificate”). Notwithstanding the foregoing, Seller agrees to request an estoppel certificate from Schwab certifying as to the Termination Surviving Obligationsitems specified in the first sentence of Section 9.02 of the Schwab Lease and such other items concerning the Schwab Lease as Purchaser may reasonably request (“Purchaser’s Proposed Estoppel Certificate”), but it shall only be a condition to Closing that the Threshold Estoppel Certificate be delivered on the Closing Date. Promptly following the parties’ agreement as to the form of the Purchaser’s Proposed Estoppel Certificate, Seller will request that Schwab execute Purchaser’s Proposed Estoppel Certificate and will otherwise reasonably cooperate with Purchaser to facilitate Xxxxxx’x execution of Purchaser’s Proposed Estoppel Certificate including, without limitation, making introductions and arranging meetings between Purchaser and Schwab, to the extent reasonably requested by Purchaser (it being understood however, that in connection with such cooperation Seller shall not be obligated to expend more than a de minimis amount, nor shall Seller be obligated to commence any litigation, arbitration or other proceeding). Seller shall not be in default of its obligations hereunder if Tenant fails to deliver the Threshold Estoppel Certificate, it being agreed that such failure shall merely constitute the failure of a condition precedent to Purchaser’s obligation to close this Agreement transaction. Anything to the contrary contained herein notwithstanding, Purchaser obtaining the Threshold Estoppel Certificate shall only be null a condition precedent to Purchaser’s obligations hereunder if the Existing Escrow Schwab Amendment does not become effective on the Closing Date pursuant to the terms of the escrow agreement between Schwab and void and the parties Purchaser.
(n) The Amended Leases shall have no further obligations to each other hereunderbeen, or simultaneously with the Closing shall be, recorded against the Real Property.
(o) The receipt from the Planning Board of the City (the “Planning Board”) of a modification of the resolution previously passed by the Planning Board which authorized the subdivision of Plazas, 8, 9 and 10, which modification expressly approves the deviations or grants a variance from the yard set-back requirements for the West and South sides of the Building.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser Escrow Agent all of the items required to be delivered to Purchaser by Seller pursuant to the terms of Section 4.2 of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the The Title Company is not so preparedready, to irrevocably commit willing and able to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to the Title Policy. In the event any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of foregoing conditions has not been satisfied by the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a by written notice given to Seller on the Closing Date, whereupon Escrow Agent shall promptly refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser's and Seller's respective rights, remedies and obligations shall instead be determined in accordance with Article 6.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Residential Properties Trust, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser by Seller or Seller’s agents pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date, as if made and updated as of the Closing Date (with appropriate modifications permitted under this Agreementwithout any reference to “knowledge”). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the The Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if have issued the Title Company is not so prepared, Policy to irrevocably commit Purchaser (or unconditionally committed to issue the Title Policy to Purchaser a standard Pennsylvania basic owner’s upon receipt of the title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionspremium therefor).
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the All other P&S Agreements of which it is a party. If the conditions precedent to Closing under Purchaser’s obligation to consummate the transaction hereunder (if any) which are expressly set forth in this Section 9.1 are not Agreement shall have been satisfied or waived by Purchaser on or before Closingthe Closing Date. In the event any of the foregoing conditions has not been satisfied by the Closing Date other than through failure of Purchaser to fully comply with its obligations under this Agreement, Purchaser shall have the right to terminate this Agreement and receive a refund of by written notice given to Seller on the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving ObligationsClosing Date, this Agreement shall be null and void and whereupon the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to each other survive the termination of this Agreement; provided, however, that if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser’s and Seller’s respective rights, remedies and obligations shall instead be determined in accordance with ARTICLE 5.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Paladin Realty Income Properties Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser Escrow Holder all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.34.2 hereof.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Datedate of Closing.
(d) At Title Company shall be irrevocably committed to issue an ALTA extended policy of title insurance insuring that the Property is vested in the name of Purchaser following the recording of the Deed; provided, however, that Purchaser, at its sole cost and expense, provides the Title Company with any required update and/or recertification of the Survey as Title Company may require for the issuance of an ALTA extended policy of title insurance. If Purchaser fails to provide the Title Company with any required update and/or recertification, the condition in this Section 4.7(d) shall be satisfied if Title Company is willing to issue a CLTA policy of title insurance insuring that the Property is vested in the name of the Purchaser following the recording of the Deed.
(e) Seller shall have delivered to Purchaser a written estoppel certificate (“Tenant Estoppel”) in a form required by, or which contains the certifications or statements required by, the Lease, or, if no such form or required certificates or statements exist, then in the form of, or materially similar to, Exhibit K attached hereto (the Tenant Estoppel satisfying such criteria, a “Conforming Estoppel”) at least five (5) days but not more than thirty (30) days prior to the Closing Date. It shall be a condition precedent to Purchaser’s obligation to proceed to close hereunder that (i) on or prior to the Closing Date, Seller delivers to Purchaser a Conforming Estoppel from the Tenant, and (ii) no material adverse change has occurred with respect to the content of the Conforming Estoppel as of the Closing Date. If Purchaser receives a Tenant Estoppel and fails to notify Seller, in writing, within three (3) business days following the date of Purchaser’s receipt, that such Tenant Estoppel does not constitute a Conforming Estoppel, Purchaser shall be deemed to have accepted such Tenant Estoppel as a Conforming Estoppel for all relevant purposes under this Agreement, irrespective of any modifications made therein by the Tenant. If, on or prior to the Closing Date, Purchaser does not receive a Conforming Estoppel from the Tenant, Purchaser may elect, as its sole and exclusive remedy hereunder, by delivery of written notice to Seller on or prior to Closing, either to (i) proceed to Closing and waive the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if condition precedent related to the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount delivery of the Purchase Price with respect to the Property pursuant to a marked-up title commitment Conforming Estoppel; or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(eii) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of Agreement, whereupon the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null returned to Purchaser and void and the parties neither party shall have no any further obligations to each other liability or obligation hereunder, except as otherwise expressly provided herein.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rexford Industrial Realty, Inc.)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party.
(f) If requested by Purchaser, Seller shall have provided the Purchase Money Loan at Closing as required under Section 3.3, unless such failure is due to the bad faith and intentional acts of Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser Escrow Agent all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not materially adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At The estoppel letters required to be delivered at Closing pursuant to this Agreement shall have been obtained and delivered and shall reflect no facts at material adverse variance with the facts disclosed in the Leases and any related correspondence provided to Purchaser during the Evaluation Period in accordance with Section 5.2 hereof.
(e) Except for those matters of which Seller has given written notice to Purchaser or with respect to which Purchaser otherwise had knowledge prior to Closingthe end of the Evaluation Period, on the Closing Date, there shall be (i) no pending litigation seeking to enjoin the consummation of the sale and purchase hereunder and (ii) no pending or threatened litigation to recover fee title to the Property, or any part thereof or any interest therein.
(f) Purchaser shall have received marked Title Commitments from the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if by the terms of which the Title Company is not so prepared, to irrevocably commit agrees to issue to Purchaser a standard Pennsylvania basic at Closing an owner’s policy of title insurance policy (without regard to any endorsements required by Purchaser or its lenderthe “Title Policy”) in the amount of the Purchase Price on the then standard TLTA owner’s form insuring Purchaser’s fee simple indefeasible title to the Real Property, identifying only Permitted Exceptions on the Schedule B attached thereto and with (i) the standard exception for parties in possession modified to refer only to parties in possession as tenants or licensees under Leases set forth on a schedule attached thereto, which schedule shall correspond to the Lease Schedule delivered to Purchaser at Closing, (ii) the standard pre-printed exceptions as to unrecorded easements, visible and apparent easements, public or private roadways, or other matters which would be disclosed by an inspection of the Property deleted (if Purchaser has obtained an Updated Survey of the relevant Project that is satisfactory to the Title Company), and (iii) the standard exception as to mechanic’s, materialmen’s or similar liens or other matters relating to the completion of construction and payment of bills with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsthereto deleted.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Conditions Precedent to Obligation of Purchaser. The Subject to the terms and conditions of Section 12.2(b) hereof, the obligation of Purchaser under this Agreement to consummate purchase the transaction hereunder Assets sold at each Closing shall be subject to the fulfillment on satisfaction, at or before the Closing Date prior to each Closing, of all of the following conditions, to the reasonable satisfaction of Purchaser (any or all of which may be waived in writing in whole or in part by Purchaser in its sole discretion:Purchaser):
(a) Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.
(b) 4.1 All of the representations and warranties of Seller contained in this Agreement (including the Schedules and Exhibits hereto), and all written information required to be delivered to Purchaser by Seller on or prior to each Closing Date pursuant to this Agreement, shall be true and correct in all material respects on and as of the each Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the same force and effect as though such representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closingwere made, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above)such written information was delivered, on and any defaults by the service providers thereunderas of each Closing Date.
(c) 4.2 Seller shall have performed performed, satisfied and observedcomplied with, in all material respects, all agreements, covenants and agreements of conditions required by this Agreement Agreement, including the documents described in Articles 9 and 10 hereof, to be performed performed, satisfied and observed complied with by Seller as of the prior to or on each Closing Date.
4.3 On each Closing Date, no injunction or order shall be in effect prohibiting this transaction or which would make the consummation of this transaction unlawful and no action or proceeding shall have been instituted and remain pending before a court, governmental body or regulatory authority to restrain or prohibit this transaction. No adverse decision shall have been made by any such court, governmental body or regulatory authority, and no Federal, state or local statute, rule or regulation shall have been enacted the effect of which would be to prohibit, impair or delay this transaction or restrict or impair in any material respect the ability of Purchaser to own the Assets or to use the Assets and the Properties in the operation of the Restaurants.
4.4 There shall have been no material changes in the zoning laws and regulations applicable to the Properties which would materially affect the ability of or cost to Purchaser to open or operate the Restaurants at such Properties.
4.5 On or before the Initial Closing Date, Purchaser shall have received an assignment, assumption and consent agreement from Seller, executed by Purchaser, Seller and the applicable landlord, assigning to Purchaser (dand, in the case of the landlord, consenting to such assignment and, in the case of Purchaser, assuming the obligations as tenant under the applicable Lease) At all of Seller's right, title and interest in and to each of the Leases, substantially in the form of Exhibit 4.5 hereto (each an "Assignment of Lease").
4.6 On or prior before the Initial Closing Date, Seller shall have obtained, with respect to Closingall Leases, an estoppel certificate, in the form attached hereto as Exhibit 4.6 (the "Estoppel Certificates"), from each landlord under a Lease, none of which Estoppel Certificates shall have been revoked or altered in any respect from the date it was given by the respective landlord.
4.7 On each Closing Date, Purchaser shall have obtained all permits, approvals, licenses, qualifications, registrations, consents and other authorizations necessary for its operation, use and occupancy of the applicable Property as a "Shells" restaurant and the operation and use of the related Assets for their intended purposes, including, but not limited to, all building and use permits, licenses (including liquor licenses), and other authorization required under any applicable local, state or federal laws, orders, rules, regulations and/or requirements (collectively, the Title Company "Permits"). Notwithstanding the foregoing, if any particular Permit with respect to any Restaurant at a Property has not been obtained by the applicable Closing Date, but, in Purchaser's reasonable discretion, such Permit is obtainable in due course without unreasonable delay, Purchaser may not refuse to close with respect to such Property solely as a result of the failure to have obtained such Permit.
4.8 Purchaser shall have obtained a recent Phase 1 environmental study (the "Environmental Study") with respect to each Property, the results of which shall be preparedreasonably acceptable to Purchaser.
4.9 On or before the Initial Closing Date, or First American Title Insurance Company’s National Office Seller shall be prepared if have obtained from each lender who has a security interest in the Title Company is not so preparedAssets, to irrevocably commit to issue a release of the Assets from their security interest therein, in a form reasonable acceptable to Purchaser a standard Pennsylvania basic owner’s title insurance policy and Seller (without regard to any endorsements required the "Lenders' Releases").
4.10 On or before each Closing Date, Purchaser shall have received an Assumption Agreement (as defined in Section 5.4 hereof), executed by Purchaser or its lender) in the amount of the Purchase Price Seller, with respect to the Property pursuant Restaurant Assets Leases and Assigned Contracts relating to a marked-up title commitment or a pro-forma policy effective as the Properties and corresponding Assets to which the Closing relates.
4.11 Seller shall deliver its leasehold interest in and to each of the Leases to be assigned at each Closing as provided in Article 7 hereof.
4.12 On or before the Initial Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.
(e) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have received the right written authorization from Xxxxxx-Xxxxxx-Xxxxxxx Architects to terminate this Agreement modify the construction plans referred to in Section 17.1(al) hereof and receive a refund the Disclosure Schedule hereto and to use such plans in such other manner as Purchaser reasonably deems necessary to file for and obtain the Permits.
4.13 On or before the Initial Closing Date, Seller shall deliver the consent of the Xxxxxxx Money Deposit and interest earned thereon and except Pembroke Lakes Mall, Ltd. with respect to the Termination Surviving Obligationsplans and specifications submitted by Purchaser in connection with the use of the Property located in Pembroke Pines, Florida as a "Shells" restaurant.
4.14 All proceedings to be taken by Seller in connection with this Agreement and all certificates, instruments and other documents required to effect the transaction contemplated by this Agreement shall be null reasonably satisfactory in form and void substance to Purchaser and the parties shall have no further obligations to each other hereunderits counsel.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Shells Seafood Restaurants Inc)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:
(a) : Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.3.
(b) 4.2. All of the representations and warranties of Seller contained in this Agreement agreement shall be true and correct in all material respects as of the date of Closing Date (with appropriate modifications permitted under this AgreementAgreement or not adverse to Purchaser). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to date of Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have received and provided to Purchaser the right to arrange for First American Title Insurance Company’s National Office to become involved Anchor Estoppels (as defined in such title decisions.
Section 5.4(c)) and a Tenant Estoppel (eas defined in Section 5.4(b) Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all from tenants which lease at least seventy percent (70%) of the Other P&S Agreementsoccupied rentable square footage of the Improvements. In the event that Seller is unable to deliver the applicable percentage of Tenant Estoppels as provided above, unless such failure to close thereunder is due to the bad faith at Seller's option, this condition shall be deemed satisfied by Seller executing and intentional acts delivering at Closing in favor of Purchaser or any KPG Purchaser intended to impede Closing or a breach Purchaser, on behalf of any material covenant one or more tenants which shall have failed to provide the required Tenant Estoppel an estoppel certificate in substantially the form attached hereto as Exhibit E (a "Seller Estoppel"); provided, that Seller's liability under any such Seller Estoppel so executed and delivered by Seller shall cease and terminate upon the earlier to occur of (i) the receipt by Purchaser under this Agreement following the Closing of a duly executed Tenant Estoppel from the applicable tenant, or (ii) one hundred eighty (180) days following the Closing. The following tenant Leases or Mall Agreements shall be in full force and effect and Seller shall have received no notice of termination from said tenants or owners of anchor parcels as of the date of Closing: All Anchors, and X.X. Xxxxxx, Inc. In the event any KPG Purchaser under of the other P&S Agreements of which it is a party. If the foregoing conditions precedent to Closing under this Section 9.1 are not satisfied fulfilled or waived by Purchaser on or before by Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void terminate and the parties Xxxxxxx Money shall have no further obligations be returned to each other hereunderPurchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Crown American Realty Trust)
Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing 16 DOCSBHM\2172820\7 NAI-1502721402v4 Date of all of the following conditions, any or all of which may be waived in writing by Purchaser in its sole discretion:
(a) Seller Title Company shall have delivered be prepared to deliver to Purchaser all of the items required to be delivered to Purchaser by Seller pursuant to the terms of this Agreement, including but not limited to the tenant estoppel certificates required under Section 7.2 and the documents and other items to, those provided for in Section 10.34.2.
(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications to the extent permitted under this the Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and there shall not be any changes in material modifications or exceptions on the Service Contracts (in accordance with Certificate as to the operating covenants set forth in Representations and Warranties delivered by Seller pursuant to Section 7.1 above4.2(f), and any defaults by the service providers thereunder.
(c) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.
(d) At or prior to Closing, the The Title Company shall be prepared, or First American Title Insurance Company’s National Office shall unconditionally committed (subject only to those title requirements that can only be prepared if the Title Company is not so prepared, to irrevocably commit satisfied by Purchaser) to issue the Owner’s Policy to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium. Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisionsExceptions.
(e) On the Closing Date, there shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreementsexist no pending action, unless such failure suit or proceeding with respect to close thereunder is due Seller, before any court or administrative agency, which shall seek to the bad faith and intentional acts of Purchaser restrain or any KPG Purchaser intended prohibit, in whole or in part, or to impede Closing obtain damages or a breach of any material covenant of Purchaser under discovery order with respect to, this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party. If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund consummation of the Xxxxxxx Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereundertransactions contemplated hereby.
Appears in 1 contract
Samples: Purchase and Sale Agreement (CNL Growth Properties, Inc.)
