COVENANTS OF WSB PRIOR TO CLOSING Sample Clauses

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COVENANTS OF WSB PRIOR TO CLOSING. WSB hereby covenants and agrees with CCB as follows:

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• COVENANTS PRIOR TO CLOSING 37 7.1 Access and Cooperation; Due Diligence...........................37 7.2 Conduct of Business Pending Closing.............................38 7.3

• COVENANTS OF BUYER AND SELLER Buyer and Seller agree that:

• Covenants of Seller and Buyer Seller and Buyer each covenant with the other as follows:

• Covenants Pending Closing (a) From the date hereof until the Closing, each Contributor agrees that with respect to itself and not to any other Contributor, it shall not: (i) Sell, transfer (or agree to sell or transfer) or otherwise dispose of, or cause the sale, transfer or disposition of (or agree to do any of the foregoing) all or any portion of its Company Interests; or (ii) Mortgage, pledge or encumber (or permit to become encumbered) all or any portion of its Company Interests. (b) From the date hereof through the Closing, each Contributor shall, to the extent within his or its control, cause the Company and the Entity to conduct its business in the ordinary course of business, consistent with past practice, and shall, to the extent within his or its control, not permit the Company or the Entity, without the prior written consent of Acquirer, to: (i) Enter into any material transaction not in the ordinary course of business of such entity: (ii) Except as contemplated by the Second Contribution Agreement, sell, transfer or dispose of, or cause the sale, transfer or disposition of (or agree to do any of the foregoing) any assets of such entity, except in the ordinary course of business consistent with past practice; (iii) Mortgage, pledge or encumber (or permit to become encumbered) any assets of such entity, except (A) liens for taxes not due, (B) purchase money security interests in the ordinary course of such entity's business, and (C) mechanics' liens being disputed by such entity in good faith and by appropriate proceeding in the ordinary course of such entity's business (provided such mechanics liens are released prior to or on the Closing Date at no cost to the Acquirer); (iv) Amend, modify or terminate any Lease, contract or other instruments relating to the Property to which such entity is a party, except in the ordinary course of the entity's business consistent with past practice; (v) Cause or permit the Entity to change the existing use of the Property; (vi) Cause or permit any entity to enter into any new Lease or terminate any existing Lease except in the ordinary course of the entity's business consistent with past practice; (vii) Cause or take any action that would render any of the representations or warranties regarding the Property as set forth herein untrue in any material respect; (viii) Terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (ix) Knowingly cause or permit the entity to violate or fail to use commercially reasonable efforts to cure any violation of any applicable laws; (x) Materially alter the manner of keeping such entity's books, accounts or records or the accounting methods therein reflected; or (xi) Make any distribution to its members except in the ordinary course of business of such entity, or as is contemplated by the Second Contribution Agreement. (c) From the date hereof until the Closing Date, the Contributors will afford to the officers and authorized representatives of the Acquirer access to all of the Company's and the Entity's books and records and will furnish the Acquirer with such additional financial and operating data and other information as to the business and properties of the Company and the Entity as the Acquirer may from time to time reasonably request. (d) Notwithstanding anything to the contrary contained herein, any failure by an Contributor to comply with or fulfill the covenants contained in this Section 3.1 shall not constitute an indemnifiable claim under Section 3.4 of this Agreement, but shall constitute an unfulfilled condition precedent pursuant to Section 5.1, provided such failure is identified to or otherwise becomes known to the Acquirer prior to Closing.

• Covenants of Sellers Sellers covenant and agree as follows:

• Covenants of Seller Seller covenants and agrees with Buyer as follows:

• Termination Prior to Closing Notwithstanding the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the Assets: (a) By the mutual written consent of the Buyer and the Seller; (b) By the Seller in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially own

• Covenants of Buyer Buyer agrees that:

• Operations Prior to Closing (a) Seller agrees to operate the Property between the Execution Date and the Closing Date in the same general manner as Seller has operated the Property during the immediately preceding six (6) month period, paying all costs and expenses as they come due, and in any event prior to Closing, and maintaining all insurance coverage currently in force. (b) Seller shall comply with all of the obligations of landlord under the Leases and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after the Closing. (c) Seller shall notify Buyer promptly of Seller's receipt of any notice from any party alleging that Seller is in default of its obligations under any of the Leases or any Permit or agreement affecting the Real Property, or any portion or portions thereof. (d) No contract for or on behalf of or affecting the Real Property shall be negotiated or entered into which cannot be terminated by Seller upon the Closing without the payment of a specific charge, cost, penalty or premium for such termination. (e) Except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, Seller shall not enter into any new leases for any portion of the Real Property. Any new lease shall be on Buyer's customary form (which may vary to reflect customary negotiated revisions thereto), or such other form which is reasonably acceptable to Buyer. Further, except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, or as set forth above, Seller shall not amend, extend (except where required under the terms of the Lease in question), terminate (except by reason of a tenant's default), accept surrender of, or permit any assignments or subleases of, any of the Leases (except as may be required under such Lease), nor accept any rental more than one (1) month in advance (exclusive of any security deposit). (f) Seller shall not make or permit to be made any capital improvements or additions to the Real Property, or any portion thereof, without the prior written consent of Buyer, except those made by Seller pursuant to the express requirements of this Agreement, those made by tenants pursuant to the right to do so under their Leases, or by Seller if required by applicable law or ordinance, or as required under any Lease. (g) Seller shall timely xxxx all tenants for all rent billable under Leases, and use commercially reasonable efforts to collect any rent in arrears. (h) Seller shall notify Buyer of any tax assessment disputes (pending or threatened) prior to Closing, and from and after the Due Diligence Expiration Date, Seller not agree to any changes in the real estate tax assessment, nor settle, withdraw or otherwise compromise any pending claims with respect to tax assessments relating to the current or any subsequent year, without Buyer's prior written consent, which shall not be unreasonably withheld, delayed or conditioned. If any proceedings shall result in any reduction of assessment and/or tax for the tax year in which the Closing occurs, it is agreed that the amount of tax savings or refund for such tax year, less the reasonable fees and disbursements in connection with such proceedings, shall be apportioned between the parties as of the date real estate taxes are apportioned under this Agreement. All refunds relating to any tax year prior to the Closing shall be the sole property of Seller, and all refunds relating to any year subsequent to the year in which Closing occurs shall be the sole property of Buyer. Each party agrees to promptly remit to the other any refund received by it which is the property of the other. (i) Seller shall notify Buyer promptly of the occurrence of any of the following: (i) Receipt of notice from any governmental or quasi-governmental agency or authority or insurance underwriter relating to the condition, use or occupancy of the Real Property, or any portion thereof; (ii) Receipt of any notice of default from any tenant or from the holder of any lien or security interest in or encumbering the Real Property, or any portion thereof; (iii) Notice of any actual or threatened litigation against Seller or affecting or relating to the Real Property, or any portion thereof which may materially and adversely affect the Real Property or Seller's ability to consummate the transactions contemplated by this Agreement; and (iv) Vacancy of any demised Property by a tenant, other than in accordance with a scheduled lease termination.

• Actions Prior to Closing From the date hereof until the Closing Date, Contributor shall not take any action or fail to take any action the result of which could (1) have a material adverse effect on the Contributed Interests or the Operating Partnership’s ownership thereof, or any Material Adverse Effect on any Contributed Entity or Property after the Closing Date or (2) cause any of the representations and warranties contained in this Section 2.2 to be untrue as of the Closing Date.