Estoppels. (a) Seller shall send estoppel certificates (each, an "ESTOPPEL CERTIFICATE") in the form attached hereto as EXHIBIT G (the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations.
Appears in 3 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)
Estoppels. (a) Seller shall send estoppel certificates (each, an "ESTOPPEL CERTIFICATE") in the form attached hereto as EXHIBIT G (the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It shall will be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement Closing that Seller provide obtain from each Major Tenant (other than MBRK, which is a Tenant at the Monticello Property) and, to Purchaser, prior the extent required to Closing, Estoppel Certificates executed bring the aggregate rented square footage covered to no less than 75% of the aggregate rented square footage of the buildings located at each Project (which aggregate rented square footage shall not include the area covered by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately Lease referenced above in this Section 7.2(a7.2), other Tenants, an executed estoppel certificate in the form, or limited to the substance, prescribed by each Major Tenant's or, as applicable, other Tenant's Lease, executed by the applicable Tenant to be effective as of a date not earlier than twenty (20) if it is in substantially days prior to the form Scheduled Closing Date, provided that, without abrogating the generality of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies foregoing, Purchaser acknowledges that an estoppel certificate from Xxxxxxx X. Xxxxx Enterprises, Inc. that otherwise complies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition requirements of this Section 7.2(a7.2 but shows such tenant to be in arrears in rent payments shall be an acceptable estoppel certificate hereunder. Notwithstanding the foregoing, Seller agrees to request, no later than ten (10) so long as it is days after the expiration of the Evaluation Period, that each Major Tenant and other Tenant in such buildings execute an estoppel certificate in the form annexed hereto as EXHIBIT H, and Seller shall use good faith efforts to obtain same. Seller shall not be in default of its obligations hereunder if any Major Tenant or contains such specified information as the applicable Lease requires such other Tenant fails to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge deliver an estoppel certificate, or as being subject to any similar qualificationdelivers an estoppel certificate which is not in accordance with this Agreement. If any modification made Seller delivers an estoppel certificate that is required to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice be delivered pursuant to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except but that is not in accordance with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement, then Purchaser unless such requirement is waived in writing by Purchaser, the Scheduled Closing Date shall be entitled extended as provided in Section 9.2(b) or Section 9.2(c), as applicable, to all obtain from such Tenant an estoppel certificate that is in accordance with this Agreement. If the Scheduled Closing Date is extended under any of its remedies under Section 13.1; but provided further Sections 9.2(b) or 9.2(c), and, by reason of such extension, any estoppel certificate that is required hereunder has an effective date that is more than thirty-five (35) days before the Extended Closing Date, and if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of moneySenior Lender requires an updated estoppel certificate, then Purchaser will not have the right Seller shall make commercially reasonable efforts to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In additionobtain updated replacement estoppels but, if Seller is unable to obtain one or more updated estoppels after having made such efforts, Seller may satisfy its obligation to deliver Estoppel Certificates to Purchaser for any such estoppels from Tenants other than Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller (and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to Major Tenants if approved by the Termination Surviving ObligationsSenior Lender) by providing an estoppel certificate in the form, or having the substance, prescribed by the Lease for each such Tenant, and covering the time period between the date of the estoppel certificate previously obtained from such Tenant until the date to which the Scheduled Closing Date has been extended, which Purchaser agrees to accept as a valid and binding estoppel certificate. Each Friday prior to the Closing, Seller shall send to Purchaser a copy of each estoppel certificate received by Seller during the previous week.
Appears in 2 contracts
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp), Agreement of Sale and Purchase (Mack Cali Realty L P)
Estoppels. (a) Sellers and Buyer hereby acknowledge that Sellers will not obtain, and Buyer’s obligation to close shall not be conditioned upon receipt of, estoppel certificates for tenants occupying the Properties that are included in the First Closing. With respect to the Second Closing and the Bay Park Closing, Seller shall send endeavor to obtain and deliver to Buyer no later than two (2) business days prior to the applicable Closing estoppel certificates from all Major Tenants (each, an "ESTOPPEL CERTIFICATE") the “Tenant Estoppel Certificates”). Sellers’ failure to obtain the Tenant Estoppel Certificates described in the form attached hereto as EXHIBIT G (preceding sentence by the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It applicable Closing shall not be a condition precedent to Purchaser's obligation to purchase the Property pursuant to default under this Agreement that Seller provide to Purchaser, prior to Closing, Agreement. Buyer’s receipt of Tenant Estoppel Certificates that are executed by the Major Tenants and all other Tenants (all Tenants which are that do not Major Tenants are herein referred indicate a material tenant default that arose after the Merger Date or material and substantiated landlord default that arose after the Merger Date shall be deemed satisfactory to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant Buyer and shall satisfy this condition to closing. As used herein, the condition set forth immediately above phrase “material tenant default” shall mean a delinquency in this Section 7.2(athe payment of two (2) if it or more months’ base rent and additional rent, or another default by tenant, the cost of which would be equal to or greater than the amount of two (2) or more months’ base rent and additional rent. Furthermore, as used herein, the phrase “material and substantiated landlord default” shall mean a default as to which there is in substantially the form substantiated evidence of the Form landlord’s default. If a Tenant Estoppel Certificate as alleges a material tenant default that arose after the same Merger Date, then the applicable Seller may be modified as necessary choose to reflect any factual inconsistencies either (i) negotiate a lower Purchase Price for the Property with Buyer on or before the statements set forth therein which are necessary to make such certificates accurate and complete as of such scheduled Closing date, provided such modifications are not inconsistent with or (ii) remove the relevant Lease Property at which the tenant is located from the applicable Closing, and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant the Purchase Price shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualificationreduced accordingly. If any modification made to the Form a Tenant Estoppel Certificate discloses alleges a material and substantiated landlord default by based on events that occurred after the Merger Date, then the applicable Seller under a Lease or materially may choose to either (x) cure the material and adversely affects substantiated landlord default (and may extend the net income date of the Propertyapplicable Closing for up to thirty (30) days to effectuate such a cure), or (y) post a cash deposit or letter of credit with Buyer in an amount reasonably approved by Buyer to cover the cost of curing the material and substantiated landlord default, and, regardless of whether the applicable Seller chooses the action pursuant to the foregoing clause (x) or clause (y), the parties shall proceed to Closing. If Seller does not choose either action contemplated under the foregoing clause (x) or clause (y), then Purchaser Seller may terminate this Agreement by written notice to Seller and receive remove the prompt return of Property at which the Xxxxxxx Money Deposit tenant is located from the Escrow Agentapplicable Closing, together with and the interest earned thereonPurchase Price shall be reduced accordingly. With respect to any Major Tenants for which Sellers are unable to obtain a Tenant Estoppel Certificate by the applicable Closing, whereupon Purchaser and the applicable Seller will have no further rights or obligations under this Agreementcan elect to deliver at the applicable Closing an estoppel certificate (a “Kite Estoppel”) executed by Kite Realty Group, except L.P., a Delaware limited partnership (“Kite”), to Kite’s knowledge, with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses applicable Major Tenant Lease in a default form reasonably acceptable to Buyer as evidenced by Seller other Tenant Estoppel Certificates accepted by Buyer under this Agreement, then Purchaser . A Kite Estoppel shall be entitled a substitute for a Tenant Estoppel Certificate with respect to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closingfor which Sellers have not obtained a Tenant Estoppel Certificate. If Buyer or Sellers obtain a Tenant Estoppel Certificate from a Major Tenant after a Kite Estoppel has been provided to Buyer, then Purchaser the Kite Estoppel shall be deemed retracted and Buyer may terminate this Agreement by written notice to Seller and receive only rely on the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligationssubstituted Tenant Estoppel Certificate.
Appears in 2 contracts
Samples: Service Agreement (Kite Realty Group Trust), Service Agreement (Inland Real Estate Income Trust, Inc.)
Estoppels. By that date which is not later than ten (10) days before the Closing Date (the "Estoppel Delivery Deadline"), Seller shall obtain an estoppel certificate from (a) Seller shall send estoppel certificates each of the following Tenants or occupants of the premises commonly known as (eacheach a "Major Tenant" and together, an the "ESTOPPEL CERTIFICATEMajor Tenants"): (i) in the form attached hereto as EXHIBIT G Xxxxxxx Curve: On A Whim, Republic Gastropub, Winter House Interiors, Café 501, Balliets, Red Coyote, Uptown Kids, lululemon and Upper Crust, (ii) in the Triangle: Whole Foods and Anthropologie, and (iii) in NHP: Starbucks, XX Xxxx & Company and Xxxx Xxxxxx, Inc. (each a "Required Tenant Estoppel" and together, the "FORM TENANT ESTOPPEL CERTIFICATERequired Tenant Estoppels") and (b) those remaining Tenants who (together with the Major Tenants) occupy in the aggregate not less than eighty percent (80%) of the net rentable area PURCHASE AND SALE AGREEMENT 30 in the Xxxxxxx Curve Improvements, the Triangle Improvements and the NHP Improvements which is actually open for business to the public and operating as of the Estoppel Delivery Deadline (each an "Other Tenant occupying space at Estoppel" and together, the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide to Purchaser, "Other Tenant Estoppels") each dated not earlier than thirty (30) days prior to Closing, the Estoppel Certificates executed by Delivery Deadline. The Required Tenant Estoppels and the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein Other Tenant Estoppels may sometimes be referred to hereinafter collectively as the "OTHER TENANTSEstoppels"). An Estoppel Certificate executed by any Tenant The parties shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially agree on the form of the Form Tenant proposed Estoppels as soon as possible after the Effective Date hereof, taking into account any provisions in the Leases which establish and/or limit the contents and responsive time requirements of each respective Tenant. Seller shall be entitled to execute and deliver, within three (3) business days after the Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such dateDelivery Deadline, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller a Seller's overlay estoppel with respect to such Lease, provided, however, that any Lease for which an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses has not been procured (a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations"Seller's Estoppel"); provided, however, that if in the event that prior to Closing, Seller delivers to Purchaser the previously undelivered Estoppel from any such modification discloses a default Tenant, the Seller's Estoppel relating to such Lease shall thereupon be deemed null and void and of no further force and effect. Notwithstanding the foregoing, in the event that by the Closing Date Seller under this Agreementfails to deliver the (i) Required Tenant Estoppels or (ii) Other Tenant Estoppels and/or the Seller's Estoppel, then Purchaser shall be entitled entitled, at Purchaser's sole option, regardless of the time, to all either waive the requirement for any such Estoppel and proceed to Closing, agree to extend the Closing Date for a period of its remedies under Section 13.1; but provided further that if such modification discloses a default under this not more than fifteen (15) additional days or, terminate the Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of Seller, in which event the Xxxxxxx Money Deposit from the Escrow Agent, (together with the all interest earned thereon, whereupon ) shall be returned to Purchaser and Seller will the parties shall have no further rights or obligations under this Agreement, the Agreement (except with respect to for any such obligations which survive the Termination Surviving Obligationstermination thereof).
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Glimcher Realty Trust)
Estoppels. (a) It will be a condition to Closing that Seller shall send obtain from each Major Tenant an executed estoppel certificates (each, an "ESTOPPEL CERTIFICATE") certificate in the form attached prescribed by the Lease for each such Major Tenant. Notwithstanding the foregoing, Seller agrees that promptly following Purchaser's waiver of its right to terminate this Agreement pursuant to Section 5.3, Seller shall request that each Tenant execute an estoppel certificate in the form reasonably requested by Purchaser and annexed hereto as EXHIBIT G (H. Seller shall not be in default of its obligations hereunder if any Tenant fails to deliver an estoppel certificate, or delivers an estoppel certificate which is not in accordance with this Agreement. In the "FORM TENANT ESTOPPEL CERTIFICATE") event Seller is unable to obtain an executed estoppel certificate in the form of Exhibit H for each Tenant occupying space at Tenant, Seller may, but is not obligated to, provide an estoppel certificate in the Property on form prescribed by the Effective DateLease for each such Tenant, which Purchaser agrees to accept as a valid and binding estoppel certificate. It If Seller is unable to obtain an original copy or re-executed original copy of the lease with DLJ Securities Corporation dated July 1, 1987, then Seller shall request that such tenant attach said lease to its estoppel letter, and that each page be initialed by such tenant; delivery of such estoppel letter, with such attachment, shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS")obligations hereunder. An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In additionSimilarly, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closingobtain a copy of the letter agreement with Combined Data Resource, Inc. dated July 18, 1991, then Purchaser may terminate this Agreement by written notice Seller shall request that such tenant attach said letter to Seller its estoppel letter and receive the prompt return initial same; delivery of the Xxxxxxx Money Deposit from the Escrow Agentsuch estoppel letter, together with the interest earned thereonsuch attachment, whereupon Purchaser and Seller will have no further rights or shall be a condition precedent to Purchaser's obligations under this Agreement, except with respect to the Termination Surviving Obligationshereunder.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Estoppels. (a) Seller shall send estoppel certificates use its reasonable efforts to secure and deliver to Purchaser, no later than two (each2) business days before the Closing Date, an "ESTOPPEL CERTIFICATE") Estoppel Certificates from Tenants under all Tenant Leases substantially in the form attached hereto as EXHIBIT G Exhibit "F" (or in the "FORM TENANT ESTOPPEL CERTIFICATE") event that the Tenant Lease prescribes the form of estoppel, in the form prescribed by the Tenant Lease). Seller has delivered to each Purchaser for Purchaser's review and approval and Purchaser hereby acknowledges its receipt and approval of completed forms of Estoppel Certificates for all Tenant occupying space at Leases to be delivered by Seller to the Property on the Effective DateTenants. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement Closing that Seller provide obtain and deliver to Purchaser, prior to Closing, Purchaser executed Estoppel Certificates executed by substantially in the Major Tenants and all other Tenants form attached hereto as Exhibit "F" (all Tenants which are not Major Tenants are herein referred to as or in the "OTHER TENANTS"). An Estoppel Certificate executed by any event that the Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially Lease prescribes the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such dateestoppel, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form prescribed by the Tenant Lease) dated no earlier than thirty (30) days prior to the Closing Date disclosing no defaults or contains such specified information as exceptions objectionable to Purchaser from (i) each Tenant under a Tenant Lease for which the applicable lease term has commenced which individually leases 9,000 or more leased square footage of the Improvements and (ii) Tenants under a Tenant Lease requires such Tenant for which the lease term has commenced whose combined leased square footage is at least seventy-five percent (75%) of the remaining leased square footage of the Improvements. Seller shall use reasonable efforts to provide and/or contains obtain the qualification by such Tenant Estoppel Certificates, but Seller shall not have any obligation to make any payment of money, grant any statement as being to its knowledge or as being subject economic concessions to any similar qualificationtenant or commence litigation against any tenant to obtain any Estoppel Certificate. If any modification made Any failure to obtain the Form Tenant required Estoppel Certificates or to satisfy Section 7.2(a)(ii) by delivering a Seller's Certificate discloses as provided in Section 7.2(b) shall only constitute a material default by Seller under failure of a Lease condition precedent to Closing and shall not constitute a breach or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement. Seller, then at its sole option, may elect to satisfy Section 7.2(a)(ii) to the extent provided hereinbelow by delivering one or more representation certificates of Seller ("Seller's Certificate") representing that to Seller's actual knowledge (i) the copy of the Tenant Lease attached thereto is true and correct; (ii) there are no defaults by the landlord or the Tenant (or disclosing any such defaults); and (iii) the Tenant Lease is in full force and effect; provided, that, Seller may only deliver Seller's Certificates covering up to 10,000 leased square feet at the Improvements in the aggregate. If Seller subsequently obtains an Estoppel Certificate from a Tenant for which Seller has delivered a Seller Certificate, the delivered Seller Certificate shall be null and void, and Purchaser shall accept such Estoppel Certificate in its place. In the event that Seller is unable to satisfy the Estoppel Certificate condition in Section 7.2(a) or 7.2(b), Purchaser may elect to terminate this Agreement by giving written notice of such termination to Seller and thereupon Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Earnxxx Xxxey Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect pursuant to the Termination Surviving Obligations.terms of the Earnxxx Xxxey Escrow Agreement. Seller shall also use reasonable efforts to obtain an executed estoppel certificate from each of the lessors under the Ground Leases ("Ground Lease Estoppels") in
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Carramerica Realty Corp)
Estoppels. (a) Seller shall send use commercially reasonable efforts to deliver to Buyer, not later than ten (10) business days before the Closing Date, tenant estoppel certificates (each, an "ESTOPPEL CERTIFICATE"dated no earlier than sixty (60) days prior to Closing) in substantially the form attached hereto as EXHIBIT G Exhibit B and incorporated herein by reference (the "FORM TENANT ESTOPPEL CERTIFICATE"“Approved Estoppel Form”) or in the form required in the applicable Lease, if any Lease restricts the form of estoppel certificate that the applicable Tenant is required to each Tenant give (or the approved government form for the estoppel certificate for the GSA and the State of Hawaii), from Tenants occupying space at least eighty percent (80%) of the Property remaining rentable area, after excluding the rentable area of the leases to the State of Hawaii, in the Project (“Required Estoppels”), which shall include an estoppel certificate from Longs Drug Store and all tenants (excluding the State of Hawaii) leasing rentable area of 3,000 square feet or more. Buyer’s approval of the Required Estoppels on the Approved Estoppel Form(s) shall not be withheld so long as no material defaults of Seller as landlord or the applicable tenant are disclosed thereby and the information contained therein is in conformity with the terms contained in the applicable Lease. Seller shall request estoppel certificates from the State of Hawaii on a standard government form prepared by Buyer and delivered to Seller within two (2) days after the Effective Date. It , but receipt of an estoppel certificate from the State of Hawaii shall not be required and shall not be a condition precedent to Purchaser's obligation to purchase Closing. If an estoppel certificate is not received from the Property pursuant to this Agreement that Seller provide to Purchaser, State of Hawaii prior to Closingthe Contingency Date, Estoppel Certificates Seller shall provide an estoppel certificate executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as Seller for the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above State of Hawaii lease in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as substitution of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by estoppel certificate. If Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant unable to provide and/or contains the qualification by Required Estoppels, such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses failure shall not constitute a default by Seller but shall be a failure of a condition precedent giving Buyer the right to terminate under Section 2.4.3.1. Notwithstanding anything to the contrary in this Agreement, then Purchaser Buyer’s sole and exclusive remedy for a failure or alleged failure by Seller to fulfill its obligations under this Section, including a failure to deliver any of the Required Estoppels or substitute estoppel certificates, shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required set forth above or proceed to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement and in no event shall any such failure or alleged failure of Seller constitute a breach by written notice to Seller and receive or extend the prompt return of Contingency Date or the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving ObligationsClosing Date.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (TNP Strategic Retail Trust, Inc.)
Estoppels. (a) It will be a condition to Closing that Seller shall send estoppel certificates obtain and deliver to Purchaser, from each of the major tenants listed on EXHIBIT D-1 (each, an "ESTOPPEL CERTIFICATEMAJOR TENANTS") and other Tenants leasing space which when added to the Major Tenants aggregates at least 75% of the leased space at the Improvements, executed estoppel certificates, with no material modifications from the estoppel certificate form attached hereto as EXHIBIT D-2; provided, however, (i) to the extent that the form as so completed requires information not required of a Tenant under the provisions of its Tenant Lease, Seller will exercise good faith efforts to obtain an estoppel certificate for such Tenant in the form completed as provided below, or in a form as close thereto as reasonably possible, but in any event an estoppel certificate executed by a Tenant in the form prescribed by its Tenant Lease shall satisfy the requirement of this Section 7.2(a), and (ii) Purchaser will not unreasonably withhold approval of any estoppel certificate as modified by a Tenant and delivered by Seller to Purchaser, provided that the information included in such estoppel is not inconsistent with the information included in the estoppel form completed for such Tenant pursuant to the below provisions of this Section 7.2(a). Within five (5) Business Days after the Effective Date, Seller will deliver to Purchaser completed forms of estoppel certificates, in the form attached hereto as EXHIBIT G D-2 and containing the information contemplated thereby, for all Tenants. Within five (the "FORM TENANT ESTOPPEL CERTIFICATE"5) to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Business Days following Purchaser's obligation receipt thereof, Purchaser will send to purchase the Property pursuant Seller notice either (i)approving such forms as completed by Seller or (ii) setting forth in detail all changes to this Agreement that Seller provide such forms which Purchaser believes to Purchaser, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary appropriate to make such the completed forms of estoppel certificates accurate and complete as complete. Seller will make such changes to the extent Seller agrees such changes are appropriate, except that Seller will not be obligated to make any changes which request more expansive information than is contemplated by EXHIBIT D-2. Seller will then circulate the tenant estoppels to the Tenants and exercise good faith efforts to obtain execution of such datesame by the Tenants. Seller shall deliver each estoppel certificate executed by a Tenant (whether or not in compliance herewith) to Purchaser promptly following Seller's receipt thereof. Notwithstanding anything contained herein to the contrary, provided such modifications are not inconsistent in no event shall Seller's failure to obtain the required number of acceptable estoppel certificates in accordance with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition provisions of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses constitute a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Behringer Harvard Reit I Inc)
Estoppels. It will be a condition to Closing that Seller obtain and deliver to Purchaser from the Major Tenants and other Tenants leasing space which when added to the Major Tenants aggregates at least 85% of the leased space within the Improvements, executed estoppel certificates, with no material modifications from the estoppel certificate form attached hereto as Exhibit D-2; provided, however, (ai) the modification or deletion of paragraph 8 of such estoppel certificate (regarding renewal, expansion and termination options) by any Tenant will not be deemed a material modification which would cause such tenant estoppel certificate to fail to satisfy the requirements for an acceptable estoppel certificate under this Section 7.2; (ii) except as provided in (iii) below, to the extent that the form as so completed requires information not required of a Tenant under the provisions of its Tenant Lease, Seller will exercise good faith efforts to obtain an estoppel certificate for such Tenant in the form completed as provided below, or in a form as close thereto as reasonably possible, but in any event an estoppel certificate executed by a Tenant in the form prescribed by its Tenant Lease shall satisfy the requirement of this Section 7.2; (iii) Seller will submit (x) the form attached hereto as Exhibit D-3 to Xxxxxxxx & Xxxxx LLP and (y) the form attached hereto as Exhibit D-4 to GTCR Leasing LLC, but in any event an estoppel certificate executed by either such Tenant in the form prescribed by its respective Tenant Lease shall send satisfy the requirement of this Section 7.2; (iv) Purchaser will not unreasonably withhold approval of any estoppel certificates certificate as modified by a Tenant and delivered by Seller to Purchaser, provided that the information included in such estoppel is not materially inconsistent with the information included in the estoppel form completed for such Tenant pursuant to the provisions of this Section 7.2; and (eachv) if Purchaser does not furnish written notice to Seller of any specific objections to any estoppel certificate modified by a Tenant (whether in draft form or executed by the Tenant) and submitted to Purchaser within three (3) days of receipt, an "ESTOPPEL CERTIFICATE"such revised estoppel shall be deemed approved by Purchaser. No later than three (3) Business Days after the Effective Date, Seller will deliver to Purchaser completed forms of estoppel certificates, in the form attached hereto as EXHIBIT G (the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by Exhibit D-2 or for any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of prescribed by its Tenant Lease and containing the Form Tenant Estoppel Certificate information contemplated thereby, for all Tenants. Within two (2) Business Days following Purchaser’s receipt thereof, Purchaser will send to Seller notice either (a) approving such forms as the same may completed by Seller or (b) setting forth in detail all changes to such forms which Purchaser believes to be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary appropriate to make such the completed forms of estoppel certificates accurate and complete as complete. Seller will make such changes to the extent Seller agrees such changes are appropriate, except that Seller will not be obligated to make any changes which request more expansive information than is contemplated by Exhibit D-2 or the form prescribed by any Tenant’s Tenant Lease. Within one (1) Business Day following Seller’s receipt of such datePurchaser’s approval of the completed forms and/or the changes Purchaser desires to be made to the forms, provided such modifications are not inconsistent Seller shall deliver to the Tenants the forms approved by Purchaser and the other forms completed by Seller pursuant to the immediately preceding sentence and Seller shall make reasonable inquiries to Tenant to encourage Tenant to return the estoppels prior to the expiration of the Inspection Period. Notwithstanding anything contained herein to the contrary, in no event shall Seller’s failure to obtain the required number of acceptable estoppel certificates in accordance with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition provisions of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses 7.2 constitute a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (KBS Real Estate Investment Trust II, Inc.)
Estoppels. After written request by Lender, Borrower shall (aor shall cause Mortgage Borrower to) Seller shall send from time to time, use reasonable efforts to obtain from Mortgage Lender such estoppel certificates (each, an "ESTOPPEL CERTIFICATE") in the form attached hereto as EXHIBIT G (the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; providedstatus of the Mortgage Loan and compliance by Mortgage Borrower with the terms of the Mortgage Loan Documents as may reasonably be requested by Lender. In the event or to the extent that Mortgage Lender is not legally obligated to deliver such estoppel certificates and is unwilling to deliver the same, however, that if or is legally obligated to deliver such modification discloses a default by Seller under this Agreementestoppel certificates but breaches such obligation, then Purchaser Borrower shall not be entitled to all in breach of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof provision so long as Purchaser receives a credit at Closing in Borrower furnishes to Lender estoppels executed by Borrower and Mortgage Borrower expressly representing to Lender the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement information requested by written notice to Seller and receive Lender regarding the prompt return status of the Xxxxxxx Money Deposit from Mortgage Loan and the Escrow Agent, together compliance by Mortgage Borrower with the interest earned thereonterms of the Mortgage Loan Documents. Borrower hereby indemnifies Lender from and against all liabilities, whereupon Purchaser obligations, losses, damages, penalties, assessments, actions, or causes of action, judgments, suits, claims, demands, costs, expenses (including reasonable attorneys’ and Seller will have no further rights other professional fees, whether or obligations under this Agreementnot suit is brought and settlement costs) and reasonable disbursements of any kind or nature whatsoever which may be imposed on, except with respect actually incurred by, or asserted against Lender based in whole or in part upon any fact, event, condition, or circumstances relating to the Termination Surviving Obligations.Mortgage Loan which was misrepresented in any material respect by Borrower in, or which warrants disclosure and was omitted from such estoppel executed by Borrower and Mortgage Borrower. IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated First Mezzanine Loan Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. W2001 PARK CENTRAL HOTEL SENIOR MEZZ, L.L.C. By: W2001 Park Central Hotel Intermediate Mezz, L.L.C., its Managing Member By: W2001 Park Central Hotel Sub Mezz, L.L.C., its Managing Member By: Park Central Owner LLC, its Managing Member By: W2001 Park Central Hotel Realty, L.L.C, its Managing Member By: Whitehall Street Global Real Estate Limited Partnership 2001, a Managing Member By: WH Advisors, L.L.C. 2001, General Partner By: /s/Authorized Signatory Name: Title: COLUMN FINANCIAL, INC. By: /s/ Authorized Signatory Name:
Appears in 1 contract
Samples: First Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Estoppels. (a) Seller shall send estoppel certificates have delivered to Buyer prior to the Closing Date, Tenant estoppels, executed within sixty (each, an "ESTOPPEL CERTIFICATE"60) days of the Closing Date and in the form attached hereto of Exhibit "G-1" (with respect to the Glendale Property Leases), and Exhibit "G-2" with respect to the Wilshire Property Leases, either directly to the benefit of Buyer or assigned by Seller to Buyer, and without any material exceptions noted thereon by the applicable Tenant except for Permitted Estoppel Exceptions (as EXHIBIT G defined below) (the "FORM TENANT ESTOPPEL CERTIFICATETenant Estoppels") to each Tenant occupying space at from (i) Tenants leasing, in the Property on aggregate, as of the Effective Date. It , not less than seventy percent (70%) of the total leased space in each of the Glendale Property and the Wilshire Property, and (ii) Tenants leasing, in the aggregate, as of the Effective Date, more than 3500 square feet of net rentable area in each of the Glendale Property and the Wilshire Property (it being understood and agreed that Leases entered into after the Effective Date and approved or deemed approved by Buyer shall be deemed to have approved Tenant Estoppels); provided, however, that, with respect to one or more particular premises in the Property, Seller may, in lieu of delivering to Buyer a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make meet such certificates accurate and complete as of such datecondition, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller deliver a "Seller's Estoppel" with respect to such Leaseleased space, in the form of Exhibit "G-3" attached hereto, subject only to Permitted Estoppel Exceptions; provided, further, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form event that Seller thereafter delivers a Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except Buyer with respect to the Termination Surviving Obligationssame Lease (either before or after the Closing Date), then Seller=s Estoppel shall be of no force and effect with respect to the Lease covered by such Tenant Estoppel, if and to the extent that the Tenant Estoppel is consistent with the previously delivered Seller's Estoppel. As used herein, "Permitted Estoppel Exceptions" means all of the following: (x) a Tenant's failure or refusal to provide the bracketed paragraphs on Exhibit "G-1" with respect to the Glendale Property (such that Seller shall deliver, to all Tenants at the Glendale Property, the form of Tenant Estoppel on Exhibit "G-1" including such paragraphs, but if one or more Tenants only deliver a Tenant Estoppel with such paragraphs omitted or stricken, such a Tenant Estoppel shall nevertheless be deemed to be a conforming Tenant Estoppel; provided, however, that if such modification discloses a default by Paragraph 14 (as shown on Exhibit AG- 1@) is omitted or stricken, Seller under this Agreement, then Purchaser shall be entitled to all of satisfy the estoppel requirement by delivering a Seller's Estoppel acknowledging that Buyer and its remedies under Section 13.1potential lenders may rely on the Tenant Estoppel); but provided further that if (y) a Wilshire Property Tenant's failure to include (after Seller's delivery to such modification discloses a default under this Agreement by Seller that can be cured by Tenant the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing Tenant Estoppel in the amount required to cure such default. In additionform of Tenant Estoppel on Exhibit "G-2"), if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return Paragraphs 10 or 11 of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except Exhibit "G-2" with respect to the Termination Surviving ObligationsWilshire Property; and (z) a Tenant's disclosure of information (i) consistent with the Lease of the Tenant, or inconsistent with such Lease in an immaterial respect, or (ii) known to or made available to Buyer prior to expiration of the Investigation Period in connection with Buyer's review of materials pursuant to Section 5 above.
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Arden Realty Inc)
Estoppels. (a) It will be a condition to Closing that Seller shall send estoppel certificates (eachobtain from each Major Tenant and a sufficient number of other Tenants at the Property in order to cover not less than 80% of the total rented square footage of the buildings in the aggregate located at the Property, an "ESTOPPEL CERTIFICATE") executed estoppel certificate in the form attached hereto as EXHIBIT G Exhibit “G” dated not more than forty-five (45) days prior to Closing (unless the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property Scheduled Closing Date has been extended by Purchaser pursuant to this Agreement that Seller provide to PurchaserAgreement), prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is or in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made limited to the Form substance, prescribed by each Major Tenant’s or, as applicable, other Tenant’s Lease. Notwithstanding the foregoing, Seller agrees to request that each Major Tenant Estoppel Certificate discloses a material and other Tenants in the buildings execute an estoppel certificate in the form attached hereto as Exhibit “G”, and use good faith, commercially reasonable efforts to obtain same. Seller shall not be in default by Seller under a Lease of its obligations hereunder if any Major Tenant or materially and adversely affects the net income of the Propertyother Tenant fails to deliver an estoppel certificate, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together or delivers an estoppel certificate which is not in accordance with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that as more fully set forth in Section 9.1(f) below, such failure may constitute the failure to satisfy a condition precedent to Purchaser’s obligation to purchase the Property. For purposes of this subsection, an estoppel certificate will be not be treated as having been received if it contains (i) any material adverse inconsistencies with Seller’s representations or warranties set forth in this Agreement as modified pursuant to Section 8.3 below, or (ii) any material adverse deviation from the form or substance of estoppel required to be delivered by the Tenant hereunder, and, if any estoppel certificate discloses any such modification discloses a default material adverse matter not cured or satisfied by Seller under this Agreementon or before the date which is three (3) Business Days prior to the Scheduled Closing Date, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as on or before the Scheduled Closing Date. Purchaser shall be entitled to three (3) Business Days to review each such estoppel certificate and provide reasonable objections thereto prior to Seller sending such estoppel certificate to a result thereof so long as Purchaser receives Tenant. For purposes of this Section 7.3, an estoppel shall not be deemed to contain a credit at Closing material adverse deviation from the required estoppel form, if (i) the Tenant limits assertions in the amount required estoppel “to cure such defaultTenant’s Knowledge” or (ii) refuses to confirm whether its Lease contains any extension, expansion, or termination options or rights, storage or parking rights or rental or other concessions. In addition, if the event Seller is unable to deliver Estoppel Certificates obtain an executed estoppel certificate from any Tenant (other than a Major Tenant), to the extent required under the foregoing paragraph, Seller may, but is not obligated to, elect to provide an estoppel certificate in the form prescribed by the Lease for each such Tenant, which Purchaser agrees to accept as a valid and binding estoppel certificate; provided that Seller shall not be permitted to provide estoppel certificates for any more than 50% of the remaining square footage of the Property (i.e., not including Major Tenants at Tenants). In the event that the Tenant thereafter delivers an estoppel certificate post-Closing, then Seller shall be automatically released from liability under its estoppel certificate with respect to all consistent matters set forth in the Tenant’s estoppel certificate. Provided that Purchaser may terminate this Agreement by written notice delivers to Seller Purchaser’s requested form of Subordination, Non-Disturbance and receive Attornment Agreement (“SNDA”) prior to the prompt return expiration of the Xxxxxxx Money Deposit from Evaluation Period, Seller will also request that the Escrow AgentMajor Tenants and those Tenants whose Leases require a SNDA signed by a mortgage lender in order for their Leases to be subordinate to the Lender’s Mortgage, together execute a reasonable form of SNDA requested by Purchaser concurrently with tendering the interest earned thereonestoppel certificates to the Tenants, whereupon Purchaser and Seller will have no further rights or obligations under this Agreementmake good faith, except with respect commercially reasonable efforts to the Termination Surviving Obligationsobtain them.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Estoppels. (a) Seller shall send have obtained and delivered to Buyer at least two (2) business days prior to the Closing Date estoppel certificates (each, an "ESTOPPEL CERTIFICATE") substantially in the form of Exhibit G attached hereto as EXHIBIT G (with no material adverse disclosure from tenants leasing at least 80% of the "FORM TENANT ESTOPPEL CERTIFICATE") leased rentable area in the Improvements, including from all tenants leasing a full floor or more of space in the Improvements. This condition is for the sole benefit of Buyer and if this condition is not so satisfied, Buyer shall have the right to each Tenant occupying space at terminate this Agreement. Notwithstanding anything to the Property on the Effective Date. It shall be a condition precedent contrary contained herein, if Buyer fails to Purchaser's obligation to purchase the Property pursuant to terminate this Agreement that Seller provide to Purchaser, on or before the date which is two (2) business days prior to Closingthe Closing Date, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant Buyer shall be deemed to satisfy the have waived receipt of such tenant estoppel certificates as a condition of this Section 7.2(a) the Closing. Seller shall not be obligated to expend any funds in connection with obtaining any such tenant estoppel certificates (unless Seller is specifically required to do so under the terms of any Lease), and the failure of Seller to obtain any such tenant estoppel certificates shall not be a breach or default hereunder. So long as it a party is not in default hereunder, if any condition to such party’s obligation to proceed with the form or contains such specified information Closing hereunder has not been satisfied as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the PropertyClosing Date (or such earlier date as is provided herein), then Purchaser may such party may, in its sole discretion, terminate this Agreement by delivering written notice to Seller the other party on or before the Closing Date in which case the Exxxxxx Money shall be returned to Buyer and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will parties hereto shall have no further rights or obligations under other than those that by their terms survive the termination of this Agreement, except with respect or elect to close notwithstanding the Termination Surviving Obligations; providednon-satisfaction of such condition, however, that if in which event such modification discloses a default by Seller under this Agreement, then Purchaser party shall be entitled deemed to all of its remedies under Section 13.1; but provided further that if have waived any such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such defaultcondition. In additionthe event such party elects to close, if Seller is unable notwithstanding the non-satisfaction of such condition, said party shall be deemed to deliver Estoppel Certificates have waived said condition, and there shall be no liability on the part of any other party hereto for breaches of representations and warranties of which the party electing to Purchaser for any Major Tenants close had knowledge at the Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Hines Real Estate Investment Trust Inc)
Estoppels. (a) Seller shall send estoppel certificates endeavor to secure and deliver to Purchaser, no later than two (each2) business days prior to the Closing Date, an "ESTOPPEL CERTIFICATE") estoppel certificate from each tenant of the Property in the form of Exhibit 9.2.10 attached hereto as EXHIBIT G (collectively, the "FORM TENANT ESTOPPEL CERTIFICATE") to each “Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"Estoppel”). An Estoppel Certificate executed by any Tenant Seller shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form provide Purchaser with copies of the Form Tenant Estoppel Certificate as for Purchaser’s review and comment before delivering the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Tenant Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement, then tenant. Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not only have the right to comment upon the completed portions of the Tenant Estoppel form not the form itself, and the form Tenant Estoppel will be deemed approved by Purchaser for all purposes if Purchaser fails to provide Seller with written objections thereto within three (3) business days following the date Seller delivers same to Purchaser. In no event shall Seller be obligated to deliver updates to the Tenant Estoppel. Seller will deliver Purchaser a copy of the signed Tenant Estoppel promptly following Seller’s receipt thereof. If the Tenant Estoppel is not in the form required by this Section 3.7(a) and Purchaser fails to furnish Seller with a written notice of disapproval (which notice, in order to be effective, must include Purchaser’s specific objections), within three (3) business days from the date of Seller’s delivery thereof, such Tenant Estoppel will be deemed approved by Purchaser. Notwithstanding the foregoing, Purchaser’s obligation to close this transaction is subject to the condition that, as of Closing, Purchaser shall have received the Tenant Estoppel from tenant, without modification to the form of Tenant Estoppel approved by Purchaser. In the event Seller has not provided the Tenant Estoppel on or before two (2) business days prior to the initially scheduled Closing Date, either party hereto shall have a one time right to delay the Closing for up to thirty (30) days upon written notice to the other party hereto delivered not less than two (2) business days prior to the scheduled Closing Date. If the foregoing Tenant Estoppel is not delivered to Purchaser on or before the Closing Date, as may have been delayed as provided above, then Purchaser’s sole right with respect thereto shall be to elect to terminate this Agreement as a result upon written notice thereof so long as Purchaser receives a credit at delivered to Seller on or before the Closing in Date. If such termination notice is given, the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates Title Company shall immediately return the Deposit to Purchaser without the consent or joinder of Seller being required and notwithstanding any contrary instructions which might be provided by Seller and neither party shall have any further liability hereunder except for the obligations of Purchaser pursuant to the Purchase and Sale Agreement indemnification provisions of Section 3.1.4 and Section 3.1.7 hereof. If Purchaser fails, for any Major Tenants at Closingor no reason, then to timely deliver any such termination notice, Purchaser may will be deemed to have elected to waive Purchaser’s right to terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving ObligationsSection 3.7(a).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Griffin Capital Essential Asset REIT, Inc.)
Estoppels. (a) It will be a condition to Closing that Seller shall send obtain and deliver to Purchaser at least three (3) Business Days prior to the Closing Date, from the major tenants listed on Exhibit D-1 (“Major Tenants”) and other Tenants leasing space which when added to the Major Tenants aggregates at least eighty percent (80%) of the leased space at the Improvements, executed estoppel certificates (each“Tenant Estoppel Certificates"), an "ESTOPPEL CERTIFICATE"with no material modifications from the estoppel certificate form attached hereto as Exhibit D-2; provided, however, (1) the Tenant Estoppel Certificate for the Centex Service Company Lease (the “Centex Service Company Estoppel Certificate”) will be in the form attached hereto as EXHIBIT G Exhibit S with no material modifications thereto, and (2) with respect to the "FORM TENANT ESTOPPEL CERTIFICATE"Tenant Estoppel Certificates other than the Centex Service Company Estoppel Certificate, Purchaser will not unreasonably withhold approval of any estoppel certificate as modified by a Tenant and delivered by Seller to Purchaser, provided that the information included in such estoppel is not inconsistent with (x) the factual information disclosed to each Purchaser in writing on or before June 13, 2005, (y) the representations, warranties and covenants of Seller contained in this Agreement, and (z) the information included in the estoppel form completed for such Tenant occupying space at pursuant to the Property on below provisions of this Section 7.2(a). In addition, notwithstanding the Effective Date. It shall eighty percent (80%) requirement set forth above, it will be a condition precedent to Closing that Seller obtain and deliver to Purchaser Tenant Estoppel Certificates for all Tenant Leases under which Seller or an Affiliate of Seller is the tenant thereunder (including, but not limited to, the Centex Service Company Estoppel Certificate) (collectively, the “Centex Estoppel Certificates”). On or before August 12, 2005, Seller will deliver to Purchaser completed forms of estoppel certificates, in the form attached hereto as Exhibit D-2 and containing the information contemplated thereby, for all Tenants (other than Centex Service Company). Within two (2) Business Days following Purchaser’s receipt thereof, Purchaser will send to Seller notice either (i) approving such forms as completed by Seller, or (ii) setting forth in detail all changes to such forms which Purchaser believes to be appropriate to make the completed forms of estoppel certificates accurate and complete. In the event Seller objects to Purchaser's obligation ’s changes to purchase the Property pursuant to this Agreement that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such dateestoppel certificate, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together Purchaser hereby agree to reasonably cooperate with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect each other to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligationstimely develop an acceptable estoppel certificate.
Appears in 1 contract
Samples: Lease Guaranty Agreement (Hines Real Estate Investment Trust Inc)
Estoppels. Colonial REIT shall have delivered to Buyer all Tenant Estoppels it has received pursuant to it Section 7.6 request (a) Seller regardless of form and contents). Without limiting the foregoing, Colonial REIT shall send have delivered to Buyer, Tenant Estoppels in substantially the form requested under Section 7.6 (provided, that, if a tenant’s Lease prescribes a form of estoppel certificates (eachthat is different than the applicable estoppel form attached to this Agreement, and provided, that, Colonial REIT’s original request was for an "ESTOPPEL CERTIFICATE") estoppel in the form attached hereto as EXHIBIT G (the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide to PurchaserAgreement, prior to Closing, Estoppel Certificates then an estoppel certificate executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any such Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate attached to such Lease shall acceptable as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller form with respect to such Leasetenant) dated not earlier than the date hereof from tenants comprising not less than seventy-five percent (75%) of the gross base rental amount for each Property (“General Estoppel Requirements”). Without limiting the General Estoppel Requirements, Colonial REIT shall have delivered to Buyer, Tenant Estoppels dated not earlier than the date hereof from (i) all tenants at all Properties leasing 25,000 or more leasable square feet (“Major Tenants”) and (ii) from such other tenants such that, together with the estoppels from Major Tenants, the General Estoppel Requirements have been satisfied; provided, howeverthat up to five percent (5%) of the General Estoppel Requirements may be satisfied with an estoppel certificate provided by Colonial REIT, which estoppel certificate shall address matters set forth Exhibit D, as to such leases designated by Colonial REIT (“Specific Estoppel Requirements”). Such Tenant Estoppels shall be consistent in all material respects with the applicable representations and warranties made by Colonial REIT set forth in Section 3 hereof and with the information provided to Buyer in connection therewith. No Tenant Estoppels disclosing or alleging defaults by or obligations of the landlord thereunder which could reasonably be anticipated to result in potential liability and/or costs to cure of the landlord that an Estoppel Certificate executed by exceed $25,000 for any Tenant shall particular Lease will be deemed to satisfy count towards the condition satisfaction of this Section 7.2(a) so long as it is either the General Estoppel Requirements or the Specific Estoppel Requirements. The Tenant Estoppels shall not disclose or allege defaults by or obligations of the landlord thereunder which, in the form or contains such specified information as the applicable Lease requires such aggregate, with respect to all Tenant Estoppels, could reasonably be anticipated to provide result in potential liability and/or contains the qualification by such Tenant of any statement as being costs to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income cure of the Propertylandlord that exceed $2,000,000 (“Aggregate Estoppel Failure”). To the extent Colonial REIT is unable to obtain Tenant Estoppels sufficient to satisfy this condition as of the date for Closing, then Purchaser Colonial REIT may adjourn the Closing by notice to Buyer to a date that is not later than the Outside Closing Date in order to attempt to satisfy this condition. In the event of an Aggregate Estoppel Failure, Buyer may terminate this Agreement by written notice in which event the Deposit or the Letter of Credit, as applicable, will be returned to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving ObligationsBuyer.
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (Colonial Realty Limited Partnership)
Estoppels. (a) Seller shall send estoppel certificates have delivered to Buyer prior to the Closing Date, Tenant estoppels, executed within sixty (each, an "ESTOPPEL CERTIFICATE"60) days of the Closing Date and in the form attached hereto of Exhibit "E-3" without any material exceptions noted thereon by the applicable Tenant except for Permitted Estoppel Exceptions (as EXHIBIT G defined below) (the "FORM TENANT ESTOPPEL CERTIFICATETenant Estoppels") to from (i) each Tenant occupying space at of the Tenants leasing more than 3500 square feet of net rentable area in the Property on or before the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase , and (ii) Tenants leasing, in the aggregate, not less than eighty-five percent (85%) of total leased space in the Property pursuant to this Agreement (it being understood and agreed that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed Leases entered into after the Effective Date and approved or deemed approved by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant Buyer shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such have approved Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving ObligationsEstoppels); provided, however, that, with respect to one or more particular premises in the Property, Seller may, in lieu of delivering to Buyer a Tenant Estoppel to meet such condition, deliver a "Seller's Estoppel" with respect to such leased space, in the form of Exhibit "E-4" attached hereto, subject only to Permitted Estoppel Exceptions, in the event that if Seller does not obtain such modification discloses estoppel from a default by Tenant prior to the Closing Date; provided, further, however, that in the event that Seller under this Agreementobtains any such Tenant Estoppel after the Closing Date and delivers the same to Buyer, then Purchaser Seller's Estoppel shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except force and effect with respect to the Termination Surviving ObligationsLease covered by such Tenant Estoppel delivered after the Closing Date, if and to the extent that the Tenant Estoppel is consistent with the previously delivered Seller's Estoppel. As used herein, "Permitted Estoppel Exceptions" means information (i) consistent with the Lease of the Tenant, or inconsistent with such Lease in an immaterial respect, or (ii) made available to Buyer during the Investigation Period in connection with Buyer's review of materials pursuant to Section 5 above.
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Arden Realty Inc)
Estoppels. No later than two (a2) Seller business days prior to the Closing Date, Purchaser shall send have received a tenant estoppel certificates (eachcertificate, an "ESTOPPEL CERTIFICATE") substantially in the form attached hereto as EXHIBIT G Exhibit G, (the "FORM TENANT ESTOPPEL CERTIFICATE"“Tenant Estoppel Certificate”) to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide reasonably satisfactory to Purchaser, signed by Long Island Holding A, LLC, a Delaware limited liability company, and dated no earlier than forty-five (45) days prior to Closingthe Closing Date and which additionally substantially confirms or is consistent with the information in the Rent Roll. Seller shall be entitled to adjourn the Closing for up to thirty (30) days to facilitate obtaining said Tenant Estoppel Certificate, Estoppel Certificates executed by or otherwise establish to Purchaser’s reasonable satisfaction that the Major Tenants and all other Tenants tenants identified on the Rent Roll (all Tenants which as hereinafter defined) have accepted occupancy, are not Major Tenants are herein referred to paying rent as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it their leases and that neither the tenant or the landlord is in substantially the form material default of the Form their respective obligations under said leases. Failure to obtain such Tenant Estoppel Certificate shall not be a default or breach of this Agreement. Purchaser’s sole and exclusive remedy for Seller’s failure to obtain or provide the Tenant Estoppel Certificate no later than the time provided above, provided that Seller has promptly requested and diligently pursued the Tenant Estoppel Certificate, shall be to terminate this Agreement upon not less than five (5) business days prior written notice (herein the “Termination Notice”), provided however that Seller shall have the right to nullify the Termination Notice in the event Seller obtains or provides the Tenant Estoppel Certificate within five (5) business days after the receipt by Seller of the Termination Notice. Purchaser agrees not to unreasonably withhold Purchaser’s consent to any changes requested by any tenant to the form attached hereto as the same may be modified as necessary to reflect any factual inconsistencies Exhibit G which is consistent with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller tenant’s obligations under its lease with respect to such Leasethe Tenant Estoppel Certificate. In no event shall Seller be obligated to deliver updates to any Tenant Estoppel Certificate dated within forty-five (45) days of the Closing date. No later than three (3) business days prior to the Closing Date, provided, however, that Seller shall also provide to Purchaser an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is Colgate Center Property Owners’ Association substantially in the form or contains such specified information as the applicable Lease requires such Tenant set forth in Exhibit G-2 reasonably satisfactory to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made Purchaser, and dated no earlier than forty-five (45) days prior to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving ObligationsDate.
Appears in 1 contract
Estoppels. (a) Seller Sellers shall send estoppel certificates (eachuse commercially-reasonable efforts to obtain, prior to Closing, an "ESTOPPEL CERTIFICATE"estoppel certificate from each Resort Property operator/affiliated tenant of a Tenant Lease and from each tenant whose Tenant Lease is guaranteed by a Resort Property operator/affiliate tenant, which tenants are set forth on Schedule 6.11-1 (“Major Leases”), from six (6) of the seven (7) tenants under Tenant Leases listed on Schedule 6.11-2 where the leased premises exceeds 6,000 square feet (“Large Tenants”), and from tenants under Tenant Leases comprising no less than seventy percent (70%) of the tenanted square footage of each Resort Property (“Threshold Area”), which Threshold Area includes the Major Leases’ and Large Tenants’ square footage and excludes any vacant space square footage (collectively, the “Required Tenant Estoppels”). Said Required Tenant Estoppels shall be in the form and substance required of such tenants by each respective Tenant Lease or, if the form is not set forth in the Tenant Lease, then in the form attached hereto as EXHIBIT G (Exhibit J. Notwithstanding anything to the "FORM TENANT ESTOPPEL CERTIFICATE") contrary contained herein, Seller agrees to request estoppel certificates from each Tenant tenant occupying space at any portion of the Property on Condominium Units prior to the Effective Dateexpiration of the Due Diligence Period and prior to Closing Seller shall forward to Purchaser all estoppel certificates received by Seller from any such tenant. It shall be a condition precedent to Purchaser's obligation to purchase If any of the Property estoppel certificates received by Seller pursuant to this Agreement that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition terms of this Section 7.2(a) so long as it 6.11 state that landlord is in default under the form terms of that Tenant Lease or contains such specified information as landlord has failed to undertake maintenance, repairs or replacements which are the responsibility of the landlord pursuant to the terms of the Tenant Lease and the applicable Lease requires Seller, as landlord, does not dispute such claim by the Tenant to provide and/or contains (the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property“Escrow Obligations Claims”), then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from then: (a) the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement, then Purchaser Obligations Claims shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by reflected on the Seller’s Closing Bringdown Certificate, (b) Seller that can be cured by the expenditure or payment of money, then shall give Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in for the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return costs of the Xxxxxxx Money Deposit from the unfunded Escrow Agent, together Obligations Claims in accordance with the interest earned thereonterms of Section 9.2.4 hereof and Purchaser shall be responsible thereafter for such Escrow Obligations Claims, whereupon and (c) the Tenant or tenanted square footage represented by any Tenant Lease for such estoppel certificates shall count towards the requirement of Sellers to provide the Required Tenant Estoppels. If any of the estoppel certificates contains content which is deemed incorrect by Sellers, Sellers shall notify Purchaser and Seller will (the “Incorrect Estoppel(s)”). Sellers shall have no further rights obligations to pursue corrections to Incorrect Estoppel certificates 35 provided Sellers have otherwise provided the Required Tenant Estoppels as set forth hereinabove and said Incorrect Estoppels shall not count towards the Required Tenant Estoppels. Sellers make no representations or obligations under this Agreement, except with respect to warranties regarding the Termination Surviving Obligationsaccuracy or content of the Incorrect Estoppel certificates.
Appears in 1 contract
Samples: Asset Purchase Agreement (CNL Lifestyle Properties Inc)
Estoppels. (a) Seller shall send estoppel certificates have delivered to Buyer prior to the Closing Date, Tenant estoppels, executed within sixty (each, an "ESTOPPEL CERTIFICATE"60) days of the Closing Date and in the form attached hereto of Exhibit "G-1", either directly to the benefit of Buyer or assigned by Seller to Buyer, and without any material exceptions noted thereon by the applicable Tenant except for Permitted Estoppel Exceptions (as EXHIBIT G defined below) (the "FORM TENANT ESTOPPEL CERTIFICATETenant Estoppels") to each Tenant occupying space at from (i) Tenants leasing, in the Property on aggregate, as of the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase , not less than seventy- five percent (75%) of the Property pursuant to this Agreement that Seller provide to Purchasertotal leased space in the Property, prior to Closingwith the exception of O'Flaherty & Belgum xxx Xxxx & Dxxx, Estoppel Certificates executed by the Major Tenants and all other Tenants xnd (ii) all Tenants which are not Major Tenants are herein referred to leasing, as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as Effective Date, more than 3,000 square feet of net rentable area of the same may be modified as necessary to reflect any factual inconsistencies Property, with the statements set forth therein which are necessary to make such certificates accurate exception of O'Flaherty & Belgum xxx Xxxx & Dxxx (xt beixx understood and complete as of such date, provided such modifications are not inconsistent with agreed that Leases entered into after the relevant Lease Effective Date and any other representations made herein approved or deemed approved by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant Buyer shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such have approved Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving ObligationsEstoppels); provided, however, that if such modification discloses a default by Seller under this Agreementthat, then Purchaser shall be entitled with respect to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure one or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing more particular premises in the amount required Property, Seller may, in lieu of delivering to cure Buyer a Tenant Estoppel to meet such default. In additioncondition, if deliver a "Seller's Estoppel" with respect to such leased space, in the form of Exhibit "G-2" attached hereto (or a portion thereof, as needed), subject only to Permitted Estoppel Exceptions; provided, further, however, that in the event that Seller is unable thereafter delivers a Tenant Estoppel to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except Buyer with respect to the Termination Surviving Obligationssame Lease (either before or after the Closing Date), then Seller's Estoppel shall be of no force and effect with respect to the Lease covered by such Tenant Estoppel, if and to the extent that the Tenant Estoppel is consistent with the previously delivered Seller's Estoppel. As used herein, "Permitted Estoppel Exceptions" means all of the following: (i) a Tenant's failure to include (after Seller's delivery of the Tenant Estoppel to Tenant in the form of Exhibit "G-1"), Paragraph 10 of Exhibit "G-1"; and (ii) a Tenant's disclosure of information (x) consistent with the Lease of the Tenant, or inconsistent with such Lease in an immaterial respect, or (y) known to or made available to Buyer prior to expiration of the Investigation Period in connection with Buyer's review of materials pursuant to Section 5 above.
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Arden Realty Inc)
Estoppels. (a) A condition to Purchaser’s obligation to close the transaction contemplated under this Agreement shall be Seller’s delivery to Purchaser of an estoppel certificate “Estoppel Certificate” from each of the Operators under each of the Operating Leases satisfying the requirements of this Section 36(a) (the “Required Purchaser Estoppel Certificates”). With respect to the Operators under each of the Operating Leases, Seller shall send estoppel certificates request Estoppel Certificates (eachi) with respect to the Cascade Operator, an "ESTOPPEL CERTIFICATE") substantially in the form attached hereto as EXHIBIT G Exhibit P-1, (ii) with respect to the "FORM TENANT ESTOPPEL CERTIFICATE"Decathlon Operator, substantially in the form attached hereto as Exhibit P-2, (iii) with respect to the Grace Operator, substantially in the form attached hereto as Exhibit P-3, (iv) with respect to the Kensington Operator, substantially in the form attached hereto as Exhibit P-4, (v) with respect to the Pentathlon Operator, substantially in the form attached hereto as Exhibit P-5; and (vi) with respect to each Tenant occupying space at Ranger Operator, substantially in the Property form attached hereto as Exhibit P-6; provided, that if any Operator is required or permitted under the terms of its Operating Lease to provide a different form of estoppel certificate, less information or to otherwise make different statements in a certification of such nature than are set forth on Exhibits P-1 — P-6, then Purchaser shall accept any modifications made to such form of Estoppel Certificate to the Effective Dateextent that such modifications to the form are consistent with the minimum requirements set forth in such Operator’s Operating Lease (it being understood by Purchaser that an Operator shall not be required to make any certifications not specifically enumerated in such Operator’s Operating Lease estoppel requirements even if such Operator’s Operating Lease requires tenant to certify to any additional items “reasonably requested”). It The Estoppel Certificates shall be a condition precedent to Purchaser's obligation to purchase dated no more than thirty (30) days before the Property pursuant to this Agreement that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS")initial Scheduled Closing Date. An Estoppel Certificate executed by any Tenant shall be deemed to not satisfy the condition requirements of this Section 36(a), and shall not constitute a valid Required Purchaser Estoppel Certificate, if such Estoppel Certificate shall claim: (i) that the minimum, fixed or base rent of the applicable Operating Lease differs from the minimum, fixed or base rent set forth immediately above in this Section 7.2(athe applicable Operating Lease made available to Purchaser; (ii) if it is in substantially that there exists any material default by Seller or any Ranger Subsidiary Entity as landlord under the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein applicable Operating Lease; (iii) that there are facts which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease representations and any other representations made herein by warranties of Seller set forth in Section 11(c) or Section 11(d) with respect to such Operating Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a; or (iv) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to year-end adjustments that may be required to be made under the Termination Surviving Obligations; provided, howeverapplicable Operating Lease, that if such modification discloses a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure Operator thereunder has an offset or defense against the payment of money, then Purchaser will not have rent under the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligationsapplicable Operating Lease.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Northstar Realty Finance Corp.)
Estoppels. It will be a condition to Closing that Seller obtain and deliver to Purchaser, from the Major Tenant and other Tenants leasing space which when added to the Major Tenant aggregates at least 80% of the leased space within the Improvements, executed estoppel certificates, with no material modifications from the estoppel certificate form attached hereto as Exhibit D-1, except that Seller has agreed to submit the estoppel certificate with respect to the Major Tenant on the form attached hereto as Exhibit D-2 (ahowever, it is understood that, with respect to the Major Tenant, the form prescribed by the Major Tenant’s Tenant Lease shall satisfy the requirement of this Section 7.2); provided, however, (i) the modification or deletion of paragraph 14 of the form of estoppel certificate attached as Exhibit D-1 by any Tenant will not be deemed a material modification which would cause such tenant estoppel certificate to fail to satisfy the requirements for an acceptable estoppel certificate under this Section 7.2; (ii) except as provided in (iii) below, to the extent that the form as so completed requires information not required of a Tenant under the provisions of its Tenant Lease, Seller will exercise good faith efforts to obtain an estoppel certificate for such Tenant in the form completed as provided below, or in a form as close thereto as reasonably possible, but in any event an estoppel certificate executed by a Tenant in the form prescribed by its Tenant Lease shall satisfy the requirement of this Section 7.2, (iii) Seller will submit the form attached hereto as Exhibit D-2 to the Major Tenant, but in any event an estoppel certificate executed by the Major Tenant in the form prescribed by its Tenant Lease shall send satisfy the requirement of this Section 7.2, (iv) Purchaser will not unreasonably withhold approval of any estoppel certificates certificate as modified by a Tenant and delivered by Seller to Purchaser, provided that the information included in such estoppel is not materially inconsistent with the information included in the estoppel form completed for such Tenant pursuant to the below provisions of this Section 7.2 and (eachv) if Purchaser does not furnish written notice to Seller of any specific objections to any estoppel certificate modified by a Tenant (whether in draft form or executed by the Tenant) and submitted to Purchaser within three (3) days of receipt, an "ESTOPPEL CERTIFICATE"such revised estoppel shall be deemed approved by Purchaser. No later than one (1) Business Day after the Effective Date, Seller will deliver to Purchaser completed forms of estoppel certificates, in the form attached hereto as EXHIBIT G Exhibit D-1 (the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide to Purchaseror, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; providedMajor Tenant, howeverExhibit D-2 or the form prescribed by the Major Tenant’s Tenant Lease) and containing the information contemplated thereby, for all Tenants. Within two (2) Business Days following Purchaser’s receipt thereof, Purchaser will send to Seller notice either (i) approving such forms as completed by Seller or (ii) setting forth in detail all changes to such forms which Purchaser believes to be appropriate to make the completed forms of estoppel certificates accurate and complete. Seller will make such changes to the extent Seller agrees such changes are appropriate, except that if such modification discloses Seller will not be obligated to make any changes which request more expansive information than is contemplated by Exhibit D-1 (or, with respect to the Major Tenant, Exhibit D-2 or the form prescribed by the Major Tenant’s Tenant Lease). Within one (1) Business Day following Seller’s receipt of Purchaser’s approval of the completed forms and/or the changes Purchaser desires to be made to the forms, Seller shall deliver to the Tenants the forms approved by Purchaser and the other forms completed by Seller pursuant to the immediately preceding sentence and Seller shall make reasonable inquiries to Tenant to encourage Tenant to return the estoppels prior to the expiration of the Inspection Period. Notwithstanding anything contained herein to the contrary, in no event shall Seller’s failure to obtain the required number of acceptable estoppel certificates in accordance with the provisions of this Section 7.2 constitute a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (KBS Real Estate Investment Trust II, Inc.)
Estoppels. (a) It will be a condition to Closing that Seller shall send obtain and deliver to Purchaser, executed estoppel certificates (each, an each a "ESTOPPEL CERTIFICATETenant Estoppel Certificate") in from the form attached hereto as EXHIBIT G following Tenants: Corporate Holdings; CBIZ, Gas South, Opteum, Jamestown and Bennett Thrasher (the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed by the Major such Tenants and all other Tenants (all Tenants which are not Major Tenants are being herein referred to as the "OTHER TENANTSMajor Xxxxxxx"), xxxxxher with such other Tenant Estoppel Certificates, which will, in the aggregate, meet or exceed the Required Estoppel Amount. An Estoppel Certificate executed by any Tenant Such estoppel certificates shall satisfy the condition set forth immediately above be substantially in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a Exhibit D without material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligationsmodification; provided, however, to the extent that if the form as so completed requires information not required of any Tenant under the provisions of its Tenant Lease, Seller will exercise good faith efforts to obtain a Tenant Estoppel Certificate in the form completed as provided below, or in a form as close thereto as reasonably possible, but in any event a Tenant Estoppel Certificate executed by Tenant in the form prescribed by the Tenant Lease shall satisfy the requirement of this Section 7.2. Purchaser shall have the right to approve any material modifications, deletions and/or additions to the attached form of Tenant Estoppel Certificate, provided that Purchaser will not unreasonably withhold approval of any such modification discloses modifications, deletions or additions, so long as the information included in such Tenant Estoppel Certificate is not inconsistent with the information included in the attached form of Tenant Estoppel Certificate. In no event shall Seller's failure to obtain any Tenant Estoppel Certificate in accordance with the provisions of this Section 7.2 constitute a default by Seller under this Agreement, then . Seller shall deliver to Purchaser shall be entitled to all a photocopy of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have executed each Tenant Estoppel Certificate promptly after receiving the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such defaultsame from Tenant. In addition, if If Seller is unable to deliver provide a sufficient number of Tenant Estoppel Certificates to satisfy the Required Estoppel Amount by the date which is two (2) Business Days prior to the Closing Date, then Seller may postpone the Closing Date for up to thirty (30) days to allow Seller time to obtain additional Tenant Estoppel Certificates. Seller shall notify Purchaser for in writing of any Major Tenants at postponement of the Closing Date pursuant to this Section 7.2, and shall state in such notice the revised Closing Date. For purposes of this Section 7.2(a), a Tenant Estoppel Certificate will be deemed to not have been "delivered" to the extent such Certificate (i) states that Seller is in default under the respective Tenant Lease, (ii) recites any economic terms which are materially different from the economic terms contained in such Tenant Lease, (iii) references any unperformed obligations on the part of Seller under such tenant's Lease (including tenant improvement work) that were otherwise required to be performed prior to the date of the Estoppel Certificate and that Seller does not agree, in its sole discretion, to complete prior to Closing, then Purchaser may terminate this Agreement by written notice or (iv) references any conditions to Seller and receive the prompt return effectiveness of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights tenant's lease as not having been satisfied or obligations under this Agreement, except with respect to the Termination Surviving Obligationsas not having been waived.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Franklin Street Properties Corp /Ma/)
Estoppels. (a) Seller shall send estoppel certificates (each, an "ESTOPPEL CERTIFICATE") in the form attached hereto The following is hereby added as EXHIBIT G (the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide to Purchaser, prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form 12.4.3 of the Form Original Lease: "Upon Tenant's written request, Landlord shall execute, acknowledge and deliver to Tenant Estoppel Certificate as a written statement certifying if true (or if not, stating why): (i) that none of the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition terms or provisions of this Section 7.2(aLease have been changed (or if they have been changed, stating how they have been changed); (ii) so long as it is in that this Lease has not been cancelled or terminated; (iii) the form or contains such specified information as last date of payment of the applicable Lease requires such Tenant to provide and/or contains Basic Monthly Rent and other charges and the qualification time period covered by such payment; and (iv) that to Landlord's knowledge Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a is not in default under this Agreement Lease (or, if Tenant is claimed to be in default, stating why). Landlord shall deliver such statement to Tenant within ten (10) business days after Tenant's request. Any such statement by Seller that can Landlord shall be cured addressed to Tenant, or at Tenant's request, to its lender, a purchaser of Tenant, an assignee of this Lease or subtenant of Tenant, or if such certification is required by Tenant's auditor or to an underwriter in connection with a public offering of stock or otherwise if required by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing Securities and Exchange Commission; provided such third-party entity is named in the amount required certification, and such third party may rely conclusively upon such statement as true and correct. If Landlord does not deliver such statement to cure Tenant within such defaultten (10) business day period, any such named third party may conclusively presume and rely upon the following facts: (i) that the terms and provisions of the Lease have not been changed except as otherwise represented by Tenant; (ii) that this Lease has not been cancelled or terminated except as otherwise represented by Tenant; (iii) that not more than one month's Basic Monthly Rent or other charges have been paid in advance; and (iv) that Tenant is not in default under the Lease. In additionLandlord shall, within ten (10) business days following Tenant's written request, certify to Tenant and any transferee or lender of Tenant, if Seller is unable true, that to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have Landlord's knowledge there are no further rights or obligations uncured defaults in Tenant's performance under this Agreement, except with respect to the Termination Surviving ObligationsLease."
Appears in 1 contract
Samples: Industrial Real Estate Lease (Pacira Pharmaceuticals, Inc.)
Estoppels. No later than three (3) business days prior to the --------- Closing Date, Seller shall have delivered to Buyer estoppel certificates ("Estoppels") substantially in the form of Exhibit D attached hereto and incorporated herein, from GenRad, Inc., Ornetix Network Products ("Ornetix"), PC-tel, Inc., County of Santa Xxxxx and VLSI Technology, Inc. and from such additional tenants of the Property under Leases (excluding Buyer) such that the Estoppels cover no less than seventy percent (70%) of the occupied square footage of the Building (excluding square footage leased by Buyer). If Seller has not delivered such Estoppels on or before the Closing Date, Buyer shall notify Seller in writing as to the status of such Estoppels, and Seller may, but shall not be obligated to, execute a Seller estoppel or estoppels ("Seller Estoppel") in the form of Exhibit E attached hereto and incorporated herein, certifying as to the status of any Lease for which an Estoppel has not been received, and Buyer shall accept a Seller Estoppel in lieu of Estoppels from tenants, to the extent necessary to satisfy the percentage closing condition described above. Notwithstanding the foregoing, (a) Seller shall send be required to deliver a Seller Estoppel for Ornetix if Ornetix does not furnish an Estoppel, and (b) Seller shall not be permitted to furnish, and Buyer need not accept, a Seller Estoppel for GenRad, Inc., PC-tel, Inc., County of Santa Xxxxx or VLSI Technology, Inc. (collectively, the "Required Tenants"). Seller shall use reasonable efforts to obtain Estoppels from all tenants of the Property but shall be under no obligation to execute any Seller Estoppel (except with respect to Ornetix). The failure to obtain Estoppels from any of the Required Tenants or to provide the Estoppels in the percentage required above shall not constitute a default by Seller hereunder, but shall only constitute a failure of a closing condition entitling Buyer to terminate the Agreement and receive a refund of the Deposit. Notwithstanding anything to the contrary stated in this Section 3.3, if the provisions of any Lease allow a tenant to submit a tenant estoppel certificates (eachcertificate which contains different or less information than provided for in Exhibit D, and such tenant furnishes such an "ESTOPPEL CERTIFICATE") estoppel certificate based on the requirements of its Lease, such estoppel shall be deemed sufficient for the purposes hereof notwithstanding the fact that it may not be in the form attached hereto of Exhibit D. Seller's liability under any Seller Estoppel shall terminate as EXHIBIT G of the earlier to occur of (i) the "FORM TENANT ESTOPPEL CERTIFICATE"ninetieth (90th) day following the Closing (or the one hundred eightieth (180th) day, with respect to each Tenant occupying space at Ornetix), and (ii) the Property date on which Seller delivers to Buyer the Effective DateEstoppel from the relevant tenant. It If and to the extent that Buyer's lender requires tenant estoppel certificates from a greater number of tenants or in a different form than is required under this Section 3.3, satisfaction of such lender requirements shall not be a condition precedent to PurchaserBuyer's obligation to purchase the Property pursuant to perform its obligations under this Agreement that and Seller provide shall have no obligation to Purchasercomply with such lender requirements. Additionally, once Estoppels are delivered to Buyer, Seller shall have no obligation to update any Estoppel nor shall any such updating be a condition to Buyer's obligation to perform its obligations under this Agreement. Buyer shall have the option, in its sole discretion, at any time prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice thereof to Seller Seller, if (i) the requisite Estoppels as set forth above are not delivered to Buyer by such time or (ii) any such requisite Estoppel reflects a material and receive adverse deviation from matters shown on the prompt return Rent Roll (as defined in Section 9.1(j) of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations); provided, however, that if Buyer shall first provide written notice to Seller of any such modification discloses material adverse deviation or of Buyer's intention to terminate due to failure to deliver the requisite Estoppels (either, an "Estoppel Deficiency") together with a default by copy of the relevant Estoppel(s) and upon receipt of such notice Seller under this Agreementshall have the right, then Purchaser at its option, to attempt to cure or reconcile such Estoppel Deficiency and the Closing shall be entitled extended for five (5) business days to all of its remedies under Section 13.1; but provided further that if allow Seller to accomplish such modification discloses cure or reconciliation. If Seller is unable to effect a default under this Agreement by Seller that can be cured by the expenditure cure or payment of money, then Purchaser will reconciliation or elects not have the right to cure or reconcile (or not to continue attempts to cure or reconcile) and Buyer elects to terminate this Agreement pursuant to its aforesaid right, the Deposit and all interest earned accrued thereon shall be returned to Buyer and neither party shall have any further liability under this Agreement except for those which expressly survive such termination. For purposes hereof, the term "material adverse deviation" shall mean (a) a deviation or deviations from the state of facts set forth in the Rent Roll which is not refuted by written evidence in Seller's possession or control, or (b) a claim of a landlord default which has been made in accordance with a tenant's lease; and which deviation or claim, if true, would, in the aggregate, result in a reduction in the net income from the Property (either by virtue of a reduction in the reported rental stream or an increase in landlord liability) of more than $50,000.00. In respect to deviations from the Rent Roll which result in a net income reduction of $50,000.00 or less, Seller shall, at its option, either cure or reconcile such deviations as a result thereof so long as Purchaser receives provided above or provide Buyer with a credit against the Purchase Price for the amount of any uncured or unreconciled deviation at Closing Closing. A "material adverse deviation" shall also include a deviation or deviations from the stated expiration dates of Leases the result of which is that tenants occupying at least 10,000 square feet of space claim that the expiration dates of their Leases are at least 180 days later than the dates set forth in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving ObligationsRent Roll.
Appears in 1 contract
Estoppels. (a) It will be a condition to Closing that Seller shall send estoppel certificates (eachobtain from each Major Tenant and a sufficient number of other Tenants at the Property other than Kiosk Tenants in order to cover not less than 80% of the total rented square footage of the buildings in the aggregate located at the Property, not including total rented square footage leased to Kiosk Tenants under Kiosk Leases, an "ESTOPPEL CERTIFICATE") executed estoppel certificate in the form attached hereto as EXHIBIT G Exhibit “G” dated not more than forty-five (45) days prior to Closing (unless the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property Scheduled Closing Date has been extended by Purchaser pursuant to this Agreement that Seller provide to PurchaserAgreement), prior to Closing, Estoppel Certificates executed by the Major Tenants and all other Tenants (all Tenants which are not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies with the statements set forth therein which are necessary to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is or in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made limited to the Form substance prescribed by each Major Tenant’s or, as applicable, other Tenant’s Lease. Notwithstanding the foregoing, Seller agrees to request that each Major Tenant Estoppel Certificate discloses a material and other Tenants in the buildings other than Kiosk Tenants execute an estoppel certificate in the form attached hereto as Exhibit G, and to request that each Kiosk Tenant execute an estoppel certificate in the form attached hereto as Exhibit G-1, and use good faith, commercially reasonable efforts to obtain same. Seller shall not be in default by Seller under a Lease of its obligations hereunder if any Major Tenant or materially and adversely affects the net income of the Propertyother Tenant fails to deliver an estoppel certificate, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together or delivers an estoppel certificate which is not in accordance with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that as more fully set forth in Section 9.1(f) below, such failure may constitute the failure to satisfy a condition precedent to Purchaser’s obligation to purchase the Property. For purposes of this subsection, an estoppel certificate will be not be treated as having been received if it contains (i) any material adverse inconsistencies with Seller’s representations or warranties set forth in this Agreement as modified pursuant to Section 8.3 below, or (ii) any material adverse deviation from the form or substance of estoppel required to be delivered by the Tenant hereunder, and, if any estoppel certificate discloses any such modification discloses a default material adverse matter not cured or satisfied by Seller under this Agreementon or before the date which is three (3) Business Days prior to the Scheduled Closing Date, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as on or before the Scheduled Closing Date. Purchaser shall be entitled to three (3) Business Days to review each such estoppel certificate and provide reasonable objections thereto prior to Seller sending such estoppel certificate to a result thereof so long as Purchaser receives Tenant. For purposes of this Section 7.3, an estoppel shall not be deemed to contain a credit at Closing material adverse deviation from the required estoppel form, if (i) the Tenant limits assertions in the amount required estoppel “to cure such defaultTenant’s Knowledge” or (ii) refuses to confirm whether its Lease contains any extension, expansion, or termination options or rights, storage or parking rights or rental or other concessions. In addition, if the event Seller is unable to deliver Estoppel Certificates obtain an executed estoppel certificate from any Tenant (other than a Major Tenant), to the extent required under the foregoing paragraph, Seller may, but is not obligated to, elect to provide an estoppel certificate in the form prescribed by the Lease for each such Tenant, which Purchaser agrees to accept as a valid and binding estoppel certificate; provided that Seller shall not be permitted to provide estoppel certificates for any more than 50% of the remaining square footage of the Property (i.e., not including Major Tenants at Tenants). In the event that the Tenant thereafter delivers an estoppel certificate post-Closing, then Seller shall be automatically released from liability under its estoppel certificate with respect to all consistent matters set forth in the Tenant’s estoppel certificate. Provided that Purchaser may terminate this Agreement by written notice delivers to Seller Purchaser’s requested form of Subordination, Non-Disturbance and receive Attornment Agreement (“SNDA”) prior to the prompt return expiration of the Xxxxxxx Money Deposit from Evaluation Period, Seller will also request that the Escrow AgentMajor Tenants and those Tenants whose Leases require a SNDA signed by a mortgage lender in order for their Leases to be subordinate to the Lender’s Mortgage, together execute a reasonable form of SNDA requested by Purchaser concurrently with tendering the interest earned thereonestoppel certificates to the Tenants, whereupon Purchaser and Seller will have no further rights or obligations under this Agreementmake good faith, except with respect commercially reasonable efforts to the Termination Surviving Obligationsobtain them.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Estoppels. Within three (a3) business days following the Effective Date, Seller shall send deliver to Buyer for its review and approval an estoppel certificates (each, an "ESTOPPEL CERTIFICATE") certificate substantially in the form attached hereto as EXHIBIT G Exhibit B (or in such other forms as are received from Tenants pursuant to the "FORM TENANT ESTOPPEL CERTIFICATE"terms of their respective Leases) as modified to reflect the terms of the particular Lease, to be submitted to each Tenant occupying of the leased space at the Property on Property. Buyer shall within five (5) business days after receipt of such forms provide Seller with any specific concerns arising as a result of Buyer’s review of the Effective DateLeases, and promptly after Seller revises such estoppel letters to address such concerns, Seller shall submit such revised estoppel letters (the “Required Lease Estoppel Letter”) to such tenants for execution and delivery to Buyer. It No later than three (3) days after receipt from a tenant, Seller shall deliver such tenant’s estoppel letter to Buyer. All estoppel letters shall be a condition precedent dated not more than thirty (30) days prior to Purchaser's obligation the date of Closing. Seller shall deliver to purchase the Property pursuant to this Agreement that Seller provide to Purchaser, Buyer no later than three (3) days prior to Closing, the Required Lease Estoppel Certificates executed Letter from (i) all of the major tenants (defined as ATI Physical Therapy, X’Xxxxxx Auto Parts, Jewel-Osco and Chase Bank) and (ii) at least 50% of the remaining tenants of the Property measured by the Major Tenants rentable square footage. If Seller is unable to obtain and all other Tenants (all Tenants which are not Major Tenants are herein referred to deliver sufficient tenant estoppel letters as the "OTHER TENANTS"). An Estoppel Certificate executed by any Tenant shall satisfy the condition set forth immediately above in required under this Section 7.2(a8.k, or if the letters received contain material default or material exceptions, then Seller will not be in default by reason thereof, but Buyer may, by notice given to Seller before the Closing, elect (i) if it is in substantially the form of the Form Tenant Estoppel Certificate as the same may be modified as necessary to reflect any factual inconsistencies waive said conditions and proceed with the statements set forth therein which are necessary Closing, but with a right to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and cure any other representations made herein by Seller with respect to such Lease, provided, however, that an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is in the form or contains such specified information as the applicable Lease requires such Tenant to provide and/or contains the qualification by such Tenant breach of any statement as being representation and warranty caused thereby, (ii) to its knowledge or as being subject to any similar qualification. If any modification made to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return a refund of the Xxxxxxx Money Deposit from or return of Buyer’s Letter of Credit, or (iii) if the Escrow Agentmaterial default or material exception is with respect to uncompleted landlord’s work relating to a leased premises, together with unpaid allowances related to tenant improvements or tenants’ initial move-in to such premises or any unpaid lease improvements and such amounts are not then due and owing, to require Seller to escrow sufficient funds to discharge the interest earned thereonsame including in the case of a dispute which Seller seeks to contest in good faith, whereupon Purchaser and Seller at least 100% of the amount necessary to satisfy the claim. If Buyer LEGAL02/38577646v9 elects to terminate this Agreement, neither party will have no any further rights or obligations under this Agreement, hereunder except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligationsexpressly set forth herein.
Appears in 1 contract
Samples: Purchase and Sale Agreement (RREEF Property Trust, Inc.)
Estoppels. No later than two (a2) Seller business days prior to the Closing Date, Purchaser shall send have received a tenant estoppel certificates (eachcertificate, an "ESTOPPEL CERTIFICATE") substantially in the form attached hereto as EXHIBIT G (the "FORM TENANT ESTOPPEL CERTIFICATE") to each Tenant occupying space at the Property on the Effective Date. It shall be a condition precedent to Purchaser's obligation to purchase the Property pursuant to this Agreement that Seller provide Exhibit G, reasonably satisfactory to Purchaser, signed by each of NXX Xxxxxxx Xxxxxxx Corporation, National Union Fire Insurance Company of Pittsburgh, PA, and Lord Axxxxx & Co LLC (each an “Tenant Estoppel Certificate”) and dated no earlier than forty-five (45) days prior to Closingthe Closing Date and which substantially confirms or is consistent with the information in the Rent Roll. Seller shall be entitled to adjourn the Closing for up to thirty (30) days to facilitate obtaining said Tenant Estoppel Certificates, or otherwise establish to Purchaser’s reasonable satisfaction that the tenants identified on the Rent Roll (as hereinafter defined) have accepted occupancy, are paying rent as set forth in their leases and that neither the tenant or the landlord is in material default of their respective obligations under said leases. Failure to obtain such Tenant Estoppel Certificates executed shall not be a default or breach of this Agreement. Purchaser’s sole and exclusive remedy for Seller’s failure to obtain or provide the Tenant Estoppel Certificates no later than the time provided above, provided that Seller has promptly requested and diligently pursued the Tenant Estoppel Certificates, shall be to terminate this Agreement upon not less than five (5) business days prior written notice (herein the “Termination Notice”), provided however that Seller shall have the right to nullify the Termination Notice in the event Seller obtains or provides the Tenant Estoppel Certificates within five (5) business days after the receipt by Seller of the Major Tenants and all other Tenants (all Tenants which are Termination Notice. Purchaser agrees not Major Tenants are herein referred to as the "OTHER TENANTS"). An Estoppel Certificate executed unreasonably withhold Purchaser’s consent to any changes requested by any Tenant shall satisfy the condition set forth immediately above in this Section 7.2(a) if it is in substantially tenant to the form of attached hereto as Exhibit G which is consistent with the Form tenant’s obligations under its lease with respect to the Tenant Estoppel Certificate. In no event shall Seller be obligated to deliver updates to any Tenant Estoppel Certificate as dated within forty-five (45) days of the same may be modified as necessary Closing date. No later than three (3) business days prior to reflect any factual inconsistencies with the statements set forth therein which are necessary Closing Date, Seller shall also provide to make such certificates accurate and complete as of such date, provided such modifications are not inconsistent with the relevant Lease and any other representations made herein by Seller with respect to such Lease, provided, however, that Purchaser an Estoppel Certificate executed by any Tenant shall be deemed to satisfy the condition of this Section 7.2(a) so long as it is Colgate Center Property Owners’ Association substantially in the form or contains such specified information as the applicable Lease requires such Tenant set forth in Exhibit G-2 reasonably satisfactory to provide and/or contains the qualification by such Tenant of any statement as being to its knowledge or as being subject to any similar qualification. If any modification made Purchaser, and dated no earlier than forty-five (45) days prior to the Form Tenant Estoppel Certificate discloses a material default by Seller under a Lease or materially and adversely affects the net income of the Property, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; provided, however, that if such modification discloses a default by Seller under this Agreement, then Purchaser shall be entitled to all of its remedies under Section 13.1; but provided further that if such modification discloses a default under this Agreement by Seller that can be cured by the expenditure or payment of money, then Purchaser will not have the right to terminate this Agreement as a result thereof so long as Purchaser receives a credit at Closing in the amount required to cure such default. In addition, if Seller is unable to deliver Estoppel Certificates to Purchaser for any Major Tenants at Closing, then Purchaser may terminate this Agreement by written notice to Seller and receive the prompt return of the Xxxxxxx Money Deposit from the Escrow Agent, together with the interest earned thereon, whereupon Purchaser and Seller will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving ObligationsDate.
Appears in 1 contract
