Conduct of the Business Pending Transfer. Prior to the Closing Date on which the applicable Purchased Interests are Transferred to Purchaser or the earlier termination of this Agreement, except as (i) set forth on Schedule 5.1, (ii) contemplated by the Restructuring, (iii) otherwise permitted or required by, or necessary to perform the Seller Parties’ obligations under and without breach of, this Agreement, or (iv) consented to in writing by Purchaser (and not any third party representative of Purchaser), which consent may be withheld, delayed or conditioned in Purchaser’s sole discretion (except as otherwise provided below), the Seller Parties will cause each of the Purchased Entities to: (a) Operate, manage, lease and maintain the Properties in the usual, regular and ordinary course and in substantially the same manner as heretofore, subject to ordinary wear and tear and damage by fire or other casualty; (b) Duly and timely file, in accordance with past practice, all material Tax Returns required to be filed with federal, state, local and other Tax Authorities, subject to extensions permitted by Law, and pay all material Taxes then due and payable by a Purchased Entity; (c) Not do any of the following without the prior written consent of Purchaser, which consent may be withheld, delayed or conditioned in Purchaser’s sole discretion (except as otherwise provided below), and Purchaser shall use its Commercially Reasonable Efforts to respond to the Seller Parties regarding such consent within five (5) Business Days of any request for such consent: (A) acquire, sell or ground lease, or enter into any option or agreement to acquire or sell or ground lease, or exercise an option or contract to acquire, sell or ground lease, any of the Properties or Purchased Interests or any part thereof or interest therein; (B) make any loans or advances to any other Person; (C) encumber or subject to any Lien any of the Properties or Purchased Interests other than Permitted Encumbrances, or take or omit to take any action that results in a Lien, other than a Permitted Encumbrance, being imposed on any of the Properties or Purchased Interests; (D) except as otherwise required under a Material Contract, Lease or Ground Lease and except as set forth on Schedule 5.1, (x) terminate, assign or modify any Material Contract (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), or (y) terminate, assign or modify any Lease or Ground Lease, provided, that any such termination, assignment or modification does not adversely affect the value of the Property or credit quality of the Tenant; (E) enter into any (x) Material Contract (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than in the ordinary course of business, including the performance of routine capital expenditures and emergency capital repairs, (y) Lease, or (z) Ground Lease; (F) amend any of the Organizational Documents of any Purchased Entity (except to the extent, if any, reasonably required to effect the Restructuring); (G) incur, create or assume any Indebtedness except Indebtedness that shall be satisfied and discharged prior to the Closing Date; (H) authorize the issuance, sale or delivery of (A) any capital stock of, or other equity or voting interest in, any Purchased Entity or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire either (1) any shares of capital stock of, or other equity or voting interest in, any Purchased Entity, or (2) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire, any shares of the capital stock of, or other equity or voting interest in, any Purchased Entity; (I) split, combine, redeem, reclassify, purchase or otherwise acquire, directly or indirectly, any shares of capital stock of, or other equity or voting interest in, any Purchased Entity, or make any other change in the capital structure of the Purchased Entities, unless obligated to do so pursuant to the Organizational Documents of Purchased Entities; (J) except as required by a liability insurance policy, compromise or settle any liability insurance claims or other litigation relating to the Purchased Interests, this Agreement or the Transactions contemplated hereby (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than any settlements that do not require any payments following the Closing Date or that will be reflected as reductions to the Unadjusted Purchase Price and do not impose any obligations or liabilities on any Purchased Entity following the Closing Date; (K) enter into any commitments or agreements with any Governmental Entity affecting any Property (except in accordance with respect to the terms of Article VIII) or commence any rezoning proceedings (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than commitments, agreements or proceedings entered into or commenced in the ordinary course of business and that do not impose any material economic burden in each case on such Property or do not involve settlement of any environmental Claims; (L) only to the extent reasonably likely to result in an adverse tax consequence to Purchaser or a Purchased Entity for periods after the Closing, make, change or rescind any material election relating to Taxes, change a material method of Tax accounting, or amend any material Tax Return, settle or compromise any material federal, state, local or other Tax liability, audit, claim or assessment, or enter into any material closing agreement related to Taxes; or (M) agree or otherwise commit to take, any of the foregoing actions. (d) Keep in full force and effect with respect to the Properties, the Purchased Entities’ policies of insurance providing coverage at least as extensive as the policies covering the applicable Property on the date hereof (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent). (e) Request, as soon as reasonably practicable after the date hereof, from each Tenant an estoppel certificate in the form attached hereto as Exhibit F. (f) Request, as soon as reasonably practicable after the date hereof, from Landlord under each Ground Lease, an estoppel certificate in a customary form mutually acceptable to the Parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Properties, Inc.)
Conduct of the Business Pending Transfer. Prior to the each Respective Closing Date on which the applicable Purchased Interests are Transferred to Purchaser or the earlier termination of this Agreement, except as (i) set forth on Schedule 5.1, Section 5.01 of the Disclosure Schedules or (ii) contemplated by the Restructuring, (iii) otherwise permitted or required by, or necessary to perform the Seller Parties’ obligations under and without breach of, this Agreement, or (iviii) consented to in writing by Purchaser (Purchaser, each Seller Party will, and not any third party representative of Purchaser), which consent may be withheld, delayed or conditioned in Purchaser’s sole discretion (except as otherwise provided below), the Seller Parties Company will cause each of the Purchased Entities to:
(a) Operate, manage, lease and maintain the Properties in the usual, regular and ordinary course and in substantially the same manner as heretofore, subject to ordinary wear and tear and tear, damage by fire or other casualtycasualty and condemnation;
(b) Duly and timely file, in accordance with past practice, all material Tax Returns required to be filed with federal, state, local and other Tax Authorities, subject to extensions permitted by Law, and pay all material Taxes then due and payable by a any Purchased EntityEntity or Seller Party;
(c) Subject to Section 5.15, keep in full force and effect with respect to each Property insurance policies providing coverage at least as extensive as the policies covering the applicable Property on the date hereof (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent);
(d) Maintain in existence all Purchased Entity Permits. On or before the Respective Closing, the Seller Parties shall transfer to Purchaser any Purchased Entity Permits not in the name of the Purchased Entities.
(e) Not do any of the following without the prior written consent of Purchaser, which consent may be withheld, delayed or conditioned in Purchaser’s sole discretion Purchaser (except as otherwise provided below), and it being agreed that Purchaser shall (i) not unreasonably withhold, delay or condition such consent and (ii) use its Commercially Reasonable Efforts to respond to the Seller Parties regarding any request for such consent within five (5) Business Days of any request for such consent:request):
(Ai) acquire, sell or ground lease, or enter into any option or agreement to acquire or sell or ground lease, or exercise an option or contract to acquire, sell or ground lease, any of the Properties or Purchased Interests or any part thereof or interest therein;
(Bii) cause or allow any Purchased Entity or the Market Place Seller to make any loans or advances to any other Person;
(Ciii) except for Liens related to the Line of Credit, all of which shall be extinguished prior to the Respective Closing, encumber or subject to any Lien any of the Properties or Purchased Interests other than Liens described in clauses (i), (ii), (vi), (vii) or (viii) of the definition of Permitted Encumbrances, or take or omit to take any action that results in a Lien, other than a Permitted Encumbrance, being imposed on any of the Properties or Purchased Interests;
(Div) except as otherwise required under a Material ContractContract or Lease, Lease or Ground Lease and except as set forth on Schedule 5.1Section 5.01 of the Disclosure Schedules, (x) terminate, assign assign, modify or modify grant any concessions under any Material Contract (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), or (y) terminate, assign or modify any Lease or Ground Lease, provided, that any such termination, assignment or modification does not adversely affect the value of the Property or credit quality of the Tenant;
(Ev) enter into any (x) Material Contract (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than in the ordinary course of business, including the performance of routine capital expenditures and emergency capital repairs, or (y) Lease, or (z) Ground Lease;
(Fvi) amend amend, supplement, terminate or otherwise modify in any manner any of the Organizational Documents of any Purchased Entity (except to the extent, if any, reasonably required to effect the Restructuring)Entity;
(Gvii) incur, create or assume any Indebtedness of the Purchased Entities except Indebtedness that shall be satisfied and discharged prior to the Respective Closing Date;
(Hviii) authorize the issuance, sale or delivery of (A) any capital stock of, or other equity or voting interest in, in any Purchased Entity or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire either (1) any shares of capital stock of, or other equity or voting interest in, in any Purchased Entity, or (2) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire, any shares of the capital stock of, or other equity or voting interest in, in any Purchased Entity;
(Iix) split, combine, redeem, reclassify, purchase or otherwise acquire, directly or indirectly, any shares of capital stock of, or other equity or voting interest in, in any Purchased Entity, or make any other change in the capital structure of the Purchased Entities, unless obligated to do so pursuant to the Organizational Documents of Purchased Entities;
(Jx) except as required by a liability insurance policy, compromise or settle any liability insurance claims or other litigation relating to the Purchased Interests, the Properties, this Agreement or the Transactions contemplated hereby hereby, except (unless otherwise consented to A) as required by Purchasera liability insurance policy, or (B) with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than any settlements that do not require any payments following the Respective Closing Date or that will be reflected as reductions to the Unadjusted Purchase Price and do not impose any obligations or liabilities on any Purchased Entity following the Respective Closing Date;
(Kxi) enter into any commitments or agreements with any Governmental Entity affecting any Property (except in accordance with respect to the terms of Article VIIIVI) or commence any rezoning proceedings (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent)proceedings, other than commitments, agreements or proceedings entered into or commenced in the ordinary course of business and that do not impose any material economic burden in each case on such Property or do not involve settlement of any environmental Claimsclaims;
(Lxii) only to the extent reasonably likely to result in an adverse tax consequence to Purchaser or a Purchased Entity for periods after the Closing, make, change or rescind any material election relating to Taxes, change a material method of Tax accounting, or amend any material Tax Return, settle or compromise any material federal, state, local or other Tax liability, audit, claim or assessment, or enter into any material closing agreement related to Taxes, except as required by the Code;
(xiii) remove any tangible property that is necessary for the operation and maintenance of the Properties;
(xiv) permit any of the Purchased Entities to employ any person prior to the Respective Closing; or
(Mxv) agree or otherwise commit to take, any of the foregoing actions.
(d) Keep in full force and effect with respect to the Properties, the Purchased Entities’ policies of insurance providing coverage at least as extensive as the policies covering the applicable Property on the date hereof (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent).
(e) Request, as soon as reasonably practicable after the date hereof, from each Tenant an estoppel certificate in the form attached hereto as Exhibit F.
(f) Request, as soon as reasonably practicable after the date hereof, from Landlord under each Ground Lease, an estoppel certificate in a customary form mutually acceptable to the Parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Diversified Real Estate Trust, Inc.)
Conduct of the Business Pending Transfer. Prior to the applicable Closing Date on which the applicable Purchased Interests Interests, Transferred Properties or Purchased Commercial Loans are Transferred to the Purchaser Parties or the earlier termination of this Agreement, except as (i) as set forth on Schedule 5.1, (ii) contemplated as otherwise permitted or required by the Restructuringthis Agreement or as required by applicable Law, (iii) otherwise permitted as required by the Organizational Documents of any Joint Venture, (iv) with respect to any Joint Venture, for any action or required by, inaction that may be taken by an Operating Partner without the consent of any Seller Party or necessary any Affiliate of a Seller Party and with respect to perform which no consent by the Seller Parties’ obligations under and without breach ofParty has been requested by the Operating Partner, this Agreement(v) with respect to any Joint Venture, actions or inactions with respect to which the applicable Seller Party or Equity Entity does not have the authority to take because it is not the Operating Partner, or (ivvi) consented to in writing by the Purchaser (and not any third party representative of Purchaser)Parties, which consent may be granted or withheld, delayed or conditioned in Purchaser’s the Purchaser Parties sole discretion (except as otherwise provided below), the Seller Parties will shall, and shall cause each of the Purchased Entities to:
(ai) Operate, manage, lease and maintain the Properties in the usual, regular and ordinary course and in substantially the same manner as heretoforeheretofore consistent with past practice, subject to ordinary wear and tear and damage by fire or other casualtycasualty and (ii) administer each of the Purchased Commercial Loans in the ordinary course of business consistent with past practice of Seller, including, without limitation, funding any future funding obligations pursuant to the terms of the applicable Commercial Loan Security Instruments;
(b) Duly Solely with respect to Equity Entities, duly and timely file, in accordance with past practice, all material Tax Returns required to be filed with federal, state, provincial, local and other Tax Authorities, subject to extensions permitted by Law, and pay all material Taxes then due and payable by a Purchased any Equity Entity;
(c) Not do any of the following without the prior written consent of Purchaser, which consent may be withheld, delayed or conditioned in Purchaser’s sole discretion (except as otherwise provided below), and Purchaser shall use its Commercially Reasonable Efforts to respond to the Seller Parties regarding such consent within five (5) Business Days of any request for such consent:
(A) acquire, sell or ground lease, or enter into any option or agreement to acquire or sell or ground lease, or exercise an option or contract to acquire, sell or ground lease, any of the Properties or Purchased Interests or any part thereof or interest therein;
(B) make any loans or advances to any other Person;
(C) encumber or subject to any Lien any of the Properties or Purchased Interests other than Permitted Encumbrances, or take or omit to take any action that results in a Lien, other than a Permitted Encumbrance, being imposed on any of the Properties or Purchased Interests;
(D) except as otherwise required under a Material Contract, Lease or Ground Lease and except as set forth on Schedule 5.1, (x) terminate, assign or modify any Material Contract (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), or (y) terminate, assign or modify any Lease or Ground Lease, provided, that any such termination, assignment or modification does not adversely affect the value of the Property or credit quality of the Tenant;
(E) enter into any (x) Material Contract (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than in the ordinary course of business, including the performance of routine capital expenditures and emergency capital repairs, (y) Lease, or (z) Ground Lease;
(F) amend any of the Organizational Documents of any Purchased Entity (except to the extent, if any, reasonably required to effect the Restructuring);
(G) incur, create or assume any Indebtedness except Indebtedness that shall be satisfied and discharged prior to the Closing Date;
(H) authorize the issuance, sale or delivery of (A) any capital stock of, or other equity or voting interest in, any Purchased Entity or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire either (1) any shares of capital stock of, or other equity or voting interest in, any Purchased Entity, or (2) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire, any shares of the capital stock of, or other equity or voting interest in, any Purchased Entity;
(I) split, combine, redeem, reclassify, purchase or otherwise acquire, directly or indirectly, any shares of capital stock of, or other equity or voting interest in, any Purchased Entity, or make any other change in the capital structure of the Purchased Entities, unless obligated to do so pursuant to the Organizational Documents of Purchased Entities;
(J) except as required by a liability insurance policy, compromise or settle any liability insurance claims or other litigation relating to the Purchased Interests, this Agreement or the Transactions contemplated hereby (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than any settlements that do not require any payments following the Closing Date or that will be reflected as reductions to the Unadjusted Purchase Price and do not impose any obligations or liabilities on any Purchased Entity following the Closing Date;
(K) enter into any commitments or agreements with any Governmental Entity affecting any Property (except in accordance with respect to the terms of Article VIII) or commence any rezoning proceedings (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than commitments, agreements or proceedings entered into or commenced in the ordinary course of business and that do not impose any material economic burden in each case on such Property or do not involve settlement of any environmental Claims;
(L) only to the extent reasonably likely to result in an adverse tax consequence to Purchaser or a Purchased Entity for periods after the Closing, make, change or rescind any material election relating to Taxes, change a material method of Tax accounting, or amend any material Tax Return, settle or compromise any material federal, state, local or other Tax liability, audit, claim or assessment, or enter into any material closing agreement related to Taxes; or
(M) agree or otherwise commit to take, any of the foregoing actions.
(d) Keep in full force and effect with respect to the Properties, the Purchased Entities’ policies of insurance providing coverage at least as extensive as the policies covering the applicable Property on the date hereof (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent).
(e) Request, as soon as reasonably practicable after the date hereof, from each Tenant an estoppel certificate in the form attached hereto as Exhibit F.
(f) Request, as soon as reasonably practicable after the date hereof, from Landlord under each Ground Lease, an estoppel certificate in a customary form mutually acceptable to the Parties.
Appears in 1 contract
Samples: Memorandum of Understanding (Blackstone Mortgage Trust, Inc.)
Conduct of the Business Pending Transfer. Prior to the applicable Closing Date on which the applicable Purchased Interests are a Property is Transferred to Purchaser or the earlier termination of this Agreement, except as (i) set forth on Schedule 5.1, (ii) contemplated by the Restructuring, (iii) otherwise permitted or required by, or necessary to perform the Seller Parties’ obligations under and without breach of, this Agreement, or (iviii) consented to in writing by Purchaser (and not any third party representative of Purchaser), which consent may be withheld, delayed or conditioned in Purchaser’s sole discretion (except as otherwise provided below), the Seller Parties will cause each of Parties, solely with respect to the Purchased Entities toProperties, will:
(a) Operate, manage, lease and maintain the Properties in the usual, regular and ordinary course and in substantially the same manner as heretofore, subject to ordinary wear and tear and damage by fire or other casualty;
(b) Duly and timely file, in accordance with past practice, all material Tax Returns required to be filed with federal, state, local and other Tax Authorities, subject to extensions permitted by Law, and pay all material Taxes then due and payable by a Purchased Entity;
(c) Not do any of the following without the prior written consent of Purchaser, which consent may be withheld, delayed or conditioned in Purchaser’s sole discretion (except as otherwise provided below), and Purchaser shall use its Commercially Reasonable Efforts to respond to the Seller Parties regarding such consent within five (5) Business Days of any request for such consent:
(A) acquire, sell or ground lease, or enter into any option or agreement to acquire or sell or ground lease, or exercise an option or contract to acquire, sell or ground lease, lease any of the Properties or Purchased Interests or any part thereof or interest therein;
(B) make any loans or advances to any other Person;
(C) encumber or subject to any Lien any of the Properties or Purchased Interests other than Permitted Encumbrances, or take or omit to take any action that results in a Lien, other than a Permitted Encumbrance, being imposed on any of the Properties Properties;
(C) except as (i) otherwise required under a Lease or Purchased InterestsGround Lease, (ii) set forth on Schedule 5.1 or (iii) permitted pursuant to Section 5.2, terminate, assign, modify, extend or renew any Lease or Ground Lease;
(D) except as otherwise required under a Material Contract, Lease or Ground Lease and except as set forth on Schedule 5.1, (x) terminate, assign or modify any Material Contract (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), or (y) terminate, assign or modify enter into any Lease or Ground Lease, provided, that any such termination, assignment or modification does not adversely affect the value of the Property or credit quality of the Tenant;
(E) enter into any (x1) Material management, service, consulting, financial advisory or other similar type of Contract (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than in the ordinary course of business, including the performance of routine capital expenditures and emergency capital repairs, (y) Lease, or (z2) Ground Leaselisting, brokerage or similar agreement requiring payments on the sale, lease or exercise of renewal or expansion option set forth in a Lease of any Property;
(F) amend any of the Organizational Documents of any Purchased Entity (except to the extent, if any, reasonably required to effect the Restructuring);
(G) incur, create or assume any Indebtedness except Indebtedness that shall be satisfied and discharged prior to the Closing Date;
(H) authorize the issuance, sale or delivery of (A) any capital stock of, or other equity or voting interest in, any Purchased Entity or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire either (1) any shares of capital stock of, or other equity or voting interest in, any Purchased Entity, or (2) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire, any shares of the capital stock of, or other equity or voting interest in, any Purchased Entity;
(I) split, combine, redeem, reclassify, purchase or otherwise acquire, directly or indirectly, any shares of capital stock of, or other equity or voting interest in, any Purchased Entity, or make any other change in the capital structure of the Purchased Entities, unless obligated to do so pursuant to the Organizational Documents of Purchased Entities;
(J) except as required by a liability insurance policy, compromise or settle any liability insurance claims or other litigation relating to the Purchased Interests, this Agreement or the Transactions contemplated hereby Properties (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than any settlements that do not require any payments following the Closing Date or that will be reflected as reductions to the Unadjusted Purchase Price and do not impose any obligations or liabilities on any Purchased Entity Purchaser following the Closing Date;
(KG) enter into any commitments or agreements with any Governmental Entity affecting any Property (except in accordance with respect to the terms of Article VIII) or commence any rezoning proceedings (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than commitments, agreements or proceedings entered into or commenced in the ordinary course of business and that do not impose any material economic burden in each case on such Property or do not involve settlement of any environmental Claims;
(L) only to the extent reasonably likely to result in an adverse tax consequence to Purchaser or a Purchased Entity for periods after the Closing, make, change or rescind any material election relating to Taxes, change a material method of Tax accounting, or amend any material Tax Return, settle or compromise any material federal, state, local or other Tax liability, audit, claim or assessment, or enter into any material closing agreement related to Taxes; or
(MH) agree or otherwise commit to take, any of the foregoing actions.;
(dc) Keep in full force and effect with respect to the Properties, Properties the Purchased EntitiesSeller Parties’ policies of insurance providing coverage at least as extensive as the policies covering the applicable Property on the date hereof (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent).;
(ed) Request, Request as soon as reasonably practicable after the date hereof, hereof from each Tenant an estoppel certificate in the form attached hereto as Exhibit F.C; or
(fe) Request, Request as soon as reasonably practicable after the date hereof, hereof from the Landlord under each Ground Lease, Lease an estoppel certificate in a customary form mutually acceptable to the Parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.)
Conduct of the Business Pending Transfer. Prior to the Closing Date on which the applicable Purchased Interests are Transferred to Purchaser or the earlier termination of this Agreement, except as (i) set forth on Schedule 5.1, Section 5.01 of the Disclosure Schedules or (ii) contemplated by the Restructuring, (iii) otherwise permitted or required by, or necessary to perform the Seller Parties’ Seller’s obligations under and without breach of, this Agreement, or (iviii) consented to in writing by Purchaser (and not any third party representative of Purchaser), which consent may be withheld, delayed or conditioned in Purchaser’s sole discretion (except as otherwise provided below), the Seller Parties will cause each of the Purchased Entities to:
(a) Operate, manage, lease and maintain the Properties in the usual, regular and ordinary course and in substantially the same manner as heretofore, subject to ordinary wear and tear and tear, damage by fire or other casualtycasualty and condemnation;
(b) Duly and timely file, in accordance with past practice, all material Tax Returns required to be filed with federal, state, local and other Tax Authorities, subject to extensions permitted by Law, and pay all material Taxes then due and payable by a any Purchased EntityEntity or the Seller;
(c) Subject to Section 5.15, keep in full force and effect with respect to each Property insurance policies providing coverage at least as extensive as the policies covering the applicable Property on the date hereof (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller, Purchaser shall not unreasonably withhold, delay or condition its consent);
(d) Maintain in existence all Purchased Entity Permits. On or before the Closing, the Seller shall transfer to Purchaser any Purchased Entity Permits not in the name of the Purchased Entities.
(e) Not do any of the following without the prior written consent of Purchaser, which consent may be withheld, delayed or conditioned in Purchaser’s sole discretion Purchaser (except as otherwise provided below), and it being agreed that Purchaser shall (i) not unreasonably withhold, delay or condition such consent and (ii) use its Commercially Reasonable Efforts to respond to the Seller Parties regarding any request for such consent within five (5) Business Days of any request for such consent:request):
(Ai) acquire, sell or ground lease, or enter into any option or agreement to acquire or sell or ground lease, or exercise an option or contract to acquire, sell or ground lease, any of the Properties or Purchased Interests or any part thereof or interest therein;
(Bii) cause or allow any Purchased Entity to make any loans or advances to any other Person;
(Ciii) except for Liens related to the Line of Credit, all of which shall be extinguished prior to Closing, encumber or subject to any Lien any of the Properties or Purchased Interests other than Liens described in clauses (i), (ii), (vi), (vii) or (viii) of the definition of Permitted Encumbrances, or take or omit to take any action that results in a Lien, other than a Permitted Encumbrance, being imposed on any of the Properties or Purchased Interests;
(Div) except as otherwise required under a Material ContractContract or Lease, Lease or Ground Lease and except as set forth on Schedule 5.1Section 5.01 of the Disclosure Schedules, (x) terminate, assign assign, modify or modify grant any concessions under any Material Contract (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), or (y) terminate, assign or modify any Lease or Ground Lease, provided, that any such termination, assignment or modification does not adversely affect the value of the Property or credit quality of the Tenant;
(Ev) enter into any (x) Material Contract (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than in the ordinary course of business, including the performance of routine capital expenditures and emergency capital repairs, or (y) Lease, or (z) Ground Lease;
(Fvi) amend amend, supplement, terminate or otherwise modify in any manner any of the Organizational Documents of any Purchased Entity (except to the extent, if any, reasonably required to effect the Restructuring)Entity;
(Gvii) incur, create or assume any Indebtedness of the Purchased Entities except Indebtedness that shall be satisfied and discharged prior to the Closing Date;
(Hviii) authorize the issuance, sale or delivery of (A) any capital stock of, or other equity or voting interest in, in any Purchased Entity or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire either (1) any shares of capital stock of, or other equity or voting interest in, in any Purchased Entity, or (2) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire, any shares of the capital stock of, or other equity or voting interest in, in any Purchased Entity;
(Iix) split, combine, redeem, reclassify, purchase or otherwise acquire, directly or indirectly, any shares of capital stock of, or other equity or voting interest in, in any Purchased Entity, or make any other change in the capital structure of the Purchased Entities, unless obligated to do so pursuant to the Organizational Documents of Purchased Entities;
(Jx) except as required by a liability insurance policy, compromise or settle any liability insurance claims or other litigation relating to the Purchased Interests, the Properties, this Agreement or the Transactions contemplated hereby hereby, except (unless otherwise consented to A) as required by Purchasera liability insurance policy, or (B) with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than any settlements that do not require any payments following the Closing Date or that will be reflected as reductions to the Unadjusted Purchase Price and do not impose any obligations or liabilities on any Purchased Entity following the Closing Date;
(Kxi) enter into any commitments or agreements with any Governmental Entity affecting any Property (except in accordance with respect to the terms of Article VIIIVI) or commence any rezoning proceedings (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent)proceedings, other than commitments, agreements or proceedings entered into or commenced in the ordinary course of business and that do not impose any material economic burden in each case on such Property or do not involve settlement of any environmental Claimsclaims;
(Lxii) only to the extent reasonably likely to result in an adverse tax consequence to Purchaser or a Purchased Entity for periods after the Closing, make, change or rescind any material election relating to Taxes, change a material method of Tax accounting, or amend any material Tax Return, settle or compromise any material federal, state, local or other Tax liability, audit, claim or assessment, or enter into any material closing agreement related to Taxes, except as required by the Code;
(xiii) remove any tangible property that is necessary for the operation and maintenance of the Properties;
(xiv) permit any of the Purchased Entities to employ any person prior to Closing; or
(Mxv) agree or otherwise commit to take, any of the foregoing actions.
(d) Keep in full force and effect with respect to the Properties, the Purchased Entities’ policies of insurance providing coverage at least as extensive as the policies covering the applicable Property on the date hereof (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent).
(e) Request, as soon as reasonably practicable after the date hereof, from each Tenant an estoppel certificate in the form attached hereto as Exhibit F.
(f) Request, as soon as reasonably practicable after the date hereof, from Landlord under each Ground Lease, an estoppel certificate in a customary form mutually acceptable to the Parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Diversified Real Estate Trust, Inc.)
Conduct of the Business Pending Transfer. Prior to the applicable Closing Date on which the applicable Purchased Interests Interests, Transferred Properties or Purchased Commercial Loans are Transferred to the Purchaser Parties or the earlier termination of this Agreement, except as (i) as set forth on Schedule 5.1, (ii) contemplated as otherwise permitted or required by the Restructuringthis Agreement or as required by applicable Law, (iii) otherwise permitted as required by the Organizational Documents of any Joint Venture, (iv) with respect to any Joint Venture, for any action or required by, inaction -- \\DC - 088650/000238 - 6521921 v16 that may be taken by an Operating Partner without the consent of any Seller Party or necessary any Affiliate of a Seller Party and with respect to perform which no consent by the Seller Parties’ obligations under and without breach ofParty has been requested by the Operating Partner, this Agreement(v) with respect to any Joint Venture, actions or inactions with respect to which the applicable Seller Party or Equity Entity does not have the authority to take because it is not the Operating Partner, or (ivvi) consented to in writing by the Purchaser (and not any third party representative of Purchaser)Parties, which consent may be granted or withheld, delayed or conditioned in Purchaser’s the Purchaser Parties sole discretion (except as otherwise provided below), the Seller Parties will shall, and shall cause each of the Purchased Entities to:
(ai) Operate, manage, lease and maintain the Properties in the usual, regular and ordinary course and in substantially the same manner as heretoforeheretofore consistent with past practice, subject to ordinary wear and tear and damage by fire or other casualtycasualty and (ii) administer each of the Purchased Commercial Loans in the ordinary course of business consistent with past practice of Seller, including, without limitation, funding any future funding obligations pursuant to the terms of the applicable Commercial Loan Security Instruments;
(b) Duly Solely with respect to Equity Entities, duly and timely file, in accordance with past practice, all material Tax Returns required to be filed with federal, state, provincial, local and other Tax Authorities, subject to extensions permitted by Law, and pay all material Taxes then due and payable by a Purchased any Equity Entity;
(c) Promptly provide or make available to the Purchaser Parties (i) any new or additional documents, records and other information of a material nature constituting part of the Loan Files, and reasonably cooperate with the Purchaser Parties in its examination and review of the Loan Files which have not yet been transferred to the Purchaser Parties, (ii) any written notices or other material communication received by the Seller Parties with respect to any Existing Loan, Ground Lease, Material Contract, Material Leases, Purchased Commercial Loan or any notice of default under any Leases, (iii) notice of any pending or threatened material litigation and (iv) copies of all new Leases (which the Seller Parties shall use Commercially Reasonable Efforts to deliver to the Purchaser Parties within three (3) Business Days following the execution thereof);
(d) With the Purchaser Parties' consent (not to be unreasonably withheld, conditioned or delayed), protect the Commercial Loan Property through protective advances in the ordinary course of business consistent with past practices;
(e) Continue to make capital expenditures in accordance with the budget for such Property or Equity Entity approved in the ordinary course by the Seller Parties prior to the date hereof (the "Existing Budget") (other than failure to make such capital expenditures as a result of a failure of the Purchaser Parties to approve a third party contract on market terms related to such work);
(f) Continue to make expenditures for Leasing Costs accordance with the Leases in the ordinary course of business consistent with past practice;
(g) Perform in all material respects all the Seller Parties' obligations under the Venture Agreements, the Ground Leases, the Material Contracts, the Leases and the Existing Loan Documents;
(h) If requested in writing by the Purchaser Parties at any time prior to the applicable Closing with respect to a Transferred Property or an Underlying Property owned by a Wholly-Owned Purchased Entity, terminate (with such termination becoming effective at any time prior to or as of the applicable Closing at the election of the Seller Parties) any management agreement, Leasing and Brokerage Agreement or any Contract (other than the Assumed Contracts) or similar arrangements affecting such Property as of or before the applicable Closing. The Seller Parties shall be responsible for any termination fee or other penalty owed in connection with any such termination; -- \\DC - 088650/000238 - 6521921 v16
(i) Not do any of the following without the prior written consent of Purchaserthe Purchaser Parties, which consent may be withheld, delayed or conditioned in Purchaser’s the Purchaser Parties' sole discretion (except as otherwise provided below), and the Purchaser Parties shall use its their Commercially Reasonable Efforts to respond to the Seller Parties regarding such consent within five ten (510) Business Days of any request for such consent:
(Ai) with respect to the Equity Entities, acquire, merge, assign any interest in, sell or ground lease, or enter into any option or agreement to acquire acquire, merge, assign any interest in or sell or ground lease, or exercise an option or contract to acquireacquire any material properties, or (ii) with respect to any Seller Party, sell or ground lease, any of the Properties or Purchased Interests Equity Entities or any part thereof or interest thereintherein (except, in each case, (x) as set forth on Schedule 5.1(i)(A), or (y) the acquisition of any Commercial Loan Properties pursuant to foreclosure, deed in lieu or similar proceedings with respect to any assets underlying any Purchased Commercial Loans) as permitted by this Agreement;
(B) make any loans or advances to any other Person;
(C) encumber or subject to any Lien any of the Properties or Purchased Interests other than Permitted EncumbrancesEquity Entities, or take or omit to take any action that results in a Lien, other than a Permitted Encumbrance, Lien being imposed on any of the Properties or Purchased InterestsEquity Entities (other than in accordance with Section 2.3 of this Agreement);
(DC) except as otherwise expressly required under by the terms of a Material Contract, Material Lease or Ground Lease and except as set forth on Schedule 5.1Lease, (x) terminate, assign assign, amend or modify any Material Contract (unless otherwise consented to by PurchaserContract, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), or (y) terminate, assign assign, amend or modify any Existing Loan Document, any Purchased Commercial Loan or Material Loan Documents, any Material Lease or any Ground Lease, providedor (z) sell, that any such terminationpledge, assignment dispose of or modification does not adversely affect transfer the value of the Property or credit quality of the TenantPurchased Commercial Loans;
(ED) enter into any (x) Material Contract (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent)Contract, other than in the ordinary course of business, including the performance of routine capital expenditures and emergency capital repairswhich are terminable upon no more than 60 days prior written notice without any penalty or fee, (y) LeaseLeases (other than Leases relating to the leasing of less than 10,000 square feet of rentable space at any Property entered into in accordance with past practice and on market terms), or (zy) Ground Lease;
(FE) amend any of the Organizational Documents of any Purchased Equity Entity, convert the corporate form or classification of any Equity Entity (or distribute any reserves from any Equity Entity or liquidate, merge or consolidate any Equity Entity, except to the extent, if any, reasonably required to effect the Restructuringas permitted in connection with an Alternative Transaction undertaken in accordance with Section 1.5 or as set forth on Schedule 5.1(i)(E);
(GF) incur, create create, assume, guaranty, repay, prepay or assume forgive any Indebtedness except Indebtedness that shall be satisfied and discharged prior to of any Equity Entity, in each case, other than any (i) scheduled repayments under the Closing Dateterms of third party Indebtedness, or (ii) the advancing or repayment of nominal working capital advances in the ordinary course of business;
(HG) authorize the issuance, sale or delivery of (A) any capital stock of, or other equity or voting interest in, any Purchased Entity Equity Entity, or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire either (1) any shares of capital stock of, or other equity or voting interest in, any Purchased Equity Entity, or (2) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire, any shares of the capital stock of, or other equity or voting interest in, any Purchased Equity Entity;
(IH) split, combine, redeem, reclassify, purchase or otherwise acquire, directly or indirectly, any shares of capital stock of, or other equity or voting interest in, any Purchased Equity Entity, or make any other change in the capital structure of the Purchased Entitiesany Equity Entity, unless except as obligated to do so pursuant to the Organizational Documents of Purchased Entities;any Equity Entity; -- \\DC - 088650/000238 - 6521921 v16
(JI) except as required by a liability insurance policypolicy and except with respect to the compromise or settlement of any matter covered by an insurance policy that will not transfer to the Purchaser Entities at the applicable Closing and does not relate to any Properties, Purchased Interests or Equity Entities, compromise or settle any liability insurance claims or other litigation relating to the Purchased Interests, Equity Entities, Properties, this Agreement or the Transactions contemplated hereby (unless otherwise consented to by Purchaserthe Purchaser Parties, with respect to which, if requested by the Seller Parties, the Purchaser Parties shall not unreasonably withhold, delay or condition its their consent), other than any settlements that do not require any payments or admission of fault by the Purchaser Parties or any Equity Entity following the applicable Closing Date or that will be reflected as reductions to the Unadjusted Purchase Price and do not impose any obligations or liabilities on Purchaser Parties or any Purchased Entity Equity Entities following the applicable Closing Date;
(KJ) enter into any commitments or agreements with any Governmental Entity affecting any Property or the Purchased Interests (except in accordance with respect to the terms of Article VIII) or commence any rezoning proceedings (unless otherwise consented to by Purchaser, with respect to which, if requested by the Seller Parties, Purchaser shall not unreasonably withhold, delay or condition its consent), other than commitments, agreements or proceedings entered into or commenced in the ordinary course of business and that do not impose or tenant leases to any material economic burden in each case on such Property Governmental Entity permitted by Section 5.1(i)(D) hereof, the execution of which will be governed by the remaining provisions of this Section 5.1) or do not involve settlement of commence any environmental Claimsrezoning proceedings;
(LK) only to the extent reasonably likely to result except as permitted in connection with an adverse tax consequence to Purchaser or a Purchased Entity for periods after the ClosingAlternative Transaction undertaken in accordance with Section 1.5, (i) make, change or rescind any material election relating to TaxesTaxes with respect to any Property, Equity Entity or Purchased Commercial Loan, including any election relating to the classification of any Equity Entity for U.S. federal income tax purposes, or (ii) change a material any method of Tax accounting, or amend any material Tax Return, settle or compromise any material federal, state, local or other Tax liability, audit, claim or assessment, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or enter into any material closing agreement related to Taxes, in each case, with respect to any Property, Equity Entity or Purchased Commercial Loan), except that the consent of the Purchaser Parties to the matters in this subparagraph (K)(ii) shall not be unreasonably withheld;
(L) change their credit, pricing or collateral eligibility standards or credit quality classifications in respect of a Purchased Commercial Loan in any material respect, except as required by applicable Law;
(M) grant any waiver (including forgiving any indebtedness) or agreement to forbear the enforcement of, or otherwise grant any consent or approval regarding any of the foregoing relating to, any of the terms, covenants or conditions of any Purchased Commercial Loan;
(N) grant the subordination or release of any security (including any guarantees or other recourse) or loan collateral with respect to any Purchased Commercial Loan (other than releases required under the applicable Commercial Loan-Related Assets or the ordinary course release of funds from escrow or reserve accounts pursuant to the applicable Commercial Loan-Related Assets);
(O) permit the sale, transfer or encumbrance of, or grant of a participation right in, any Purchased Commercial Loan to any third party;
(P) (i) initiate any litigation, proceeding or action against any Obligor or take any action in connection with any litigation, proceeding or action against any Obligor existing as of the date hereof (other than in the ordinary course of business), (ii) exercise any of its other remedies under the Commercial Loan-Related Assets (other than in the ordinary course of business), or (iii) negotiate or discuss with any Obligor or pursue any potential foreclosure actions, deed-in-lieu of foreclosure -- \\DC - 088650/000238 - 6521921 v16 agreements, discounted payoffs, restructurings, work-outs or other amendments with respect to any of the Purchased Commercial Loans;
(Q) grant any consent or approval requested by an Operating Partner under any Joint Venture (including approving any "major decisions", budget or business plan with respect to any Joint Venture) or make any capital calls for additional capital contributions to a Joint Venture;
(R) forfeit or apply any Security Deposits under any Lease without the consent of the Purchaser Parties;
(S) hire any individual who would be a Business Employee other than (i) any replacement employee (on employment terms and conditions that are not substantially less favorable to the employer) and any individual who received an offer of employment prior to the date hereof to provide services to any Purchased Entity or any Subsidiary thereof, or (ii) employees hired by the Seller Parties to the extent required by applicable Law;
(T) except as disclosed on Schedule 3.10(b), recognize any union or other labor organization as the representative of any of the Business Employees, or enter into any new or amended collective bargaining agreement with any labor organization except as required by applicable Law or as reasonably necessary to implement the provisions of this Agreement; or
(MU) consent to, agree or otherwise commit to take, any of the foregoing actions.
(dj) Keep in full force and effect with respect to the Properties, the Purchased Entities’ policies of insurance for each Transferred Property and each Underlying Property owned by a Wholly-Owned Purchased Entity providing coverage at least as extensive as the policies covering the applicable Property on the date hereof (unless otherwise consented to by Purchaserthe Purchaser Parties, with respect to which, if requested by the Seller Parties, the Purchaser Parties shall not unreasonably withhold, delay or condition its their consent).
(e) Request, . The Purchaser Parties acknowledge and agree that any such policies of insurance maintained by a Purchased Entity or any Subsidiary thereof that is directly or indirectly wholly-owned by the Seller Parties and under which the insurer is an Affiliate of the Seller Parties shall be terminated effective as soon as reasonably practicable after of the date hereof, from each Tenant an estoppel certificate in the form attached hereto as Exhibit F.
(f) Request, as soon as reasonably practicable after the date hereof, from Landlord under each Ground Lease, an estoppel certificate in a customary form mutually acceptable Closing at which such Purchased Entity is transferred to the Seller Parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (General Electric Capital Corp)
