Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) for the Property from Escrow Agent promptly after the Effective Date. All matters shown in the Title Commitment with respect to which Buyer fails to object prior to the expiration of the First Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller shall, within five (5) days following receipt of Buyer’s title objections, if any, notify Buyer of any objections which Seller elects not to remove or cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, as extended per this Section, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to Buyer, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (i) Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a complete copy of all leases affecting the Property and all amendments thereto ; (B) a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports for the Property (D) a copy of all architectural plans and specifications and construction drawings for improvements to be located on the Property; (E) a copy of Seller’s title insurance commitments relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; and (E) all service contracts and insurance policies or insurance certificates which affect the Property (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following Seller’s receipt of such request, which shall be made by Buyer in writing. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with the progress of construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall promptly repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section, Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, inspections, Tenant meetings and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the First Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (American Realty Capital Trust III, Inc.), Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) for the Property from Escrow Agent promptly after the ~~Effective Date~~date hereof. All matters shown in the Title Commitment with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”~~. However~~; provided, however, Permitted Exceptions shall not include and Seller shall be obligated to cure or remove any mechanic’s lien or any monetary lien, except for taxes and special assessments not yet due and payable, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller shall, within five (5) days following receipt of Buyer’s title objections, if any, notify Buyer of any objections which Seller elects not to remove or cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (i) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or ~~reasonably obtainable by Seller or~~ in the possession of Seller’s counsel: (A) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (B) a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports for the ~~Property~~ Property; (D) a copy of all architectural plans and specifications and construction drawings and contracts for improvements to be located on the Property; (E) a copy of Seller’s historical title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. ; and (ii) ~~Within~~ within five (5) ~~business~~ days following the commencement of the ~~Second~~ Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or ~~reasonably obtainable by Seller or~~ in the possession of Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; ~~and~~ (E) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (F) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (G) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer in writing, provided that the same is in Seller’s possession or in the possession of Seller’s counsel, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller and Tenant harmless from and against any and all claims or damages to the extent resulting directly from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the ~~Property. Before Buyer may enter or inspect~~ Land on the ~~Property, Buyer shall provide Seller with a certificate of insurance naming Seller (~~Property and ~~any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller~~the Buildings. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence, provided, however, that any such Tenant contact shall be coordinated through Seller. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than ~~two~~ three (23) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall ~~expire~~expire with respect to the Property, except as otherwise expressly set forth herein~~. (c)~~ . In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by ~~Seller unless~~ Seller~~, Buyer~~ . Buyer’s rights and ~~Tenant determine that it would~~ Seller’s obligations with respect to any matters arising subsequent to the Due Diligence Period shall be ~~commercially unreasonable to complete or correct any such matters~~in accordance with Section 9(b). (dc) Within five (5) ~~business~~ days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request Estoppel Certificates certified to Buyer, the Approved Assignees and their Lender, successors and assigns (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request~~) and a Waiver of Tenant’s right of first refusal, if any~~). It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of~~ F for the ~~form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ Property (the “Tenant Estoppel Certificate”). ) and Seller shall use good faith efforts to obtain the same; provided, however, that if the Tenant Estoppel Certificate is not provided by Tenant on or before the date set for Closing, then Buyer and Seller agree to proceed to Closing with Seller providing a Seller-based Estoppel Certificate and with Seller depositing Ten Thousand and 00/100 Dollars ($10,000.00) in escrow funds with the Escrow Agent (and under the terms of a Post-Closing Escrow Holdback Agreement in a form and substance acceptable to Buyer and Seller (and also acceptable to Escrow Agent), and with such escrow funds to be disbursed to Seller upon the delivery of the Tenant Estoppel Certificate in the form attached hereto as Exhibit F). Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificates when Seller receives the same. (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if ~~applicable~~ applicable, (the “SNDA”). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement ~~agreements~~ agreements, if any, as may be reasonably requested by Buyer.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.), Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Within three (3) days after the Effective Date, Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent and a survey, a Phase I environmental site assessment and a zoning report for the Property ~~from Escrow Agent~~ and shall deliver same to Seller promptly ~~after the Effective Date~~following receipt. All matters shown in the Title Commitment or survey (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property or any judgments and federal and state tax liens (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller ~~agrees~~ shall have no obligation to ~~remove or~~ cure any ~~objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing.~~ Title Matter objected to, except the Liens as aforesaid, provided Seller ~~shall, within five (5) days following receipt of Buyer’s title objections, if any, notify~~ notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx ~~Money~~ Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section,~~ Buyer may terminate this Agreement, in which case the Xxxxxxx ~~Money~~ Money, together with all interest earned thereon, shall be returned to Buyer, Seller shall reimburse Buyer for all third party, out of pocket costs and expenses actually incurred hereunder by Buyer in an amount not to exceed Twenty Thousand and 00/100 Dollars ($20,000.00) and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases and lease guaranties affecting the Property and all amendments ~~thereto~~ thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all ~~engineering and physical condition~~ environmental reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; (viii) the operating budget and any common area maintenance (CAM) reconciliations of the Property for the current year and following year, if available; (ix) the operating statements and delinquency reports of the Property for the twenty four (E24) calendar months immediately preceding the Effective Date or if a Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any; (xiii) Tenant financials for each Tenant, to the extent reasonably available to Seller and consistent with such Tenant’s reporting requirements, if any; (xiv) Guarantor financials for each Guarantor, to the extent reasonably available to Seller and consistent with each such Guarantor’s reporting requirements, if any; (xv) a copy of all primary and secondary state licenses or regulatory permits for the Property, if any; and (xvi) a copy of any documents relating to a waiver of life safety code or physical plant requirements, if any (collectively, the “Due Diligence Materials”). Seller shall use commercially reasonable efforts to deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s or its affiliates’ or agents’ possession or reasonably obtainable by Seller, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by~~ . Buyer ~~in writing~~may examine all material lease correspondence at Seller's offices. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant~~ Tenants under the ~~Lease~~Leases; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. In the event Buyer shall fail to return the Property to substantially its condition prior to such damage and Closing does not occur, the actual out-of-pocket cost of so doing shall be deducted from the Xxxxxxx Money and paid by Escrow Agent to Seller. Prior to any inspections of the Property, Buyer shall deliver to Seller ~~promptly all Final Reports produced or procured by Buyer related~~ a certificate of liability insurance evidencing coverage acceptable to ~~the Property~~Seller of not less than One Million and 00/100 Dollars ($1,000,000.00) combined single limit for bodily injury and property damage and naming Seller as an insured party thereunder. ~~Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with ~~Tenant~~ the Tenants in connection with Buyer’s due diligence. In any such event, Seller shall be entitled to have a representative of Seller present at any meeting or on the telephone during any telephonic discussion. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel ~~certificate~~ certificates from each Tenant and Guarantor, certified to Buyer, its lender and their successors and assigns, in substantially the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (the “~~Tenant~~ Estoppel Certificate”). Within two (2) business days following the Effective Date, Seller shall ~~use good faith efforts~~ deliver to ~~obtain~~ Buyer, for Buyer’s review and approval, draft Estoppel Certificates for the ~~same~~Leases. Seller shall promptly deliver to Buyer ~~photocopies~~ a photocopy or pdf ~~files~~ file of the executed ~~Tenant~~ Estoppel Certificate when Seller receives the same. Within two (2) business days following the Effective Date, Seller shall request a waiver of any right of first refusal, right of first offer or other purchase option, if any, that any party may have to purchase the Property (and simultaneously provide Buyer with copies of such requests). (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from each Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (~~the~~ each such agreement, an “SNDA”). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements affecting the Property, as may be reasonably requested by Buyer. (f) On or before the expiration of the Due Diligence Period, Buyer shall notify Seller in writing if Buyer elects not to assume at Closing any of the Contracts (defined below). If Buyer does not notify Seller prior to the expiration of the Due Diligence Period that it elects not to assume any of the Contracts, Buyer shall be deemed to have accepted and agreed to assume all of the Contracts. If Buyer exercises its right not to assume one or more Contracts at Closing, Seller shall give notice of termination of such disapproved Contract(s); provided, if by the terms of the disapproved Contract Seller has no right to terminate same on or prior to Closing, Buyer shall be required at Closing to assume all obligations thereunder until the effective date of the termination; provided, further, if any fee or other compensation is due under any disapproved Contract as a result of such termination, whether payable before or after the Closing Date, Seller shall remain obligated to pay the contractor or to reimburse Buyer for the payment of the termination charge. Notwithstanding the foregoing, Seller shall, without notice from Buyer, terminate any and all property management and listing agreements prior to Closing at Seller’s sole cost and expense. (g) Seller shall cause its property manager to complete the Property Manager Questionnaire in the form attached hereto as Exhibit L and return the same to Buyer within ten (10) days following the Effective Date. (h) If, on or before the expiration of the Due Diligence Period, the Seller is notified by its board of directors (or any other applicable governing body) that (1) Seller is not authorized to perform all of its obligations as set forth in this Agreement, or (2) Xxxxxxx Xxxxxxxx Hospital is electing to exercise the WBH ROFR, Seller shall promptly deliver written notice of such decision to Buyer, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, together with all interest earned thereon, Seller shall reimburse Buyer for all third party, out-of-pocket costs and expenses actually incurred hereunder by Buyer in an amount not to exceed Twenty Thousand and 00/100 Dollars ($20,000.00), which return and reimbursement shall operate to terminate this Agreement and release Seller and Buyer from any and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (i) Within three (3) business days of the Effective Date, Seller shall submit to its lender a notice of intent to defease its current loan on the Property; provided, however, that Seller shall not be required to incur any defeasance costs until expiration or waiver by Buyer of the Due Diligence Period and elimination or waiver, by written notice from Buyer, of all conditions precedent to Buyer's obligation to close the purchase of the Property. Following submission of such notice for defeasance, Seller shall provide to Buyer written evidence thereof. Anything in this Agreement to the contrary, if Seller is unable, despite using commercially reasonable efforts, to arrange for the defeasance of the loan by the Closing Date, Seller shall have the right, upon delivery of written notice to Buyer, to extend the Closing Date to the first day of the month following the scheduled Closing Date.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) ~~for the Property~~ from Escrow ~~Agent~~ Agent, a survey and a zoning report for each Property promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any deeds of trust, mortgage, or other loan documents secured by the Property, other than the Loan Documents (defined below), or any judgments and federal and state tax liens (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller ~~agrees~~ shall have no obligation to ~~remove or~~ cure any ~~objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing.~~ Title Matter objected to, except the Liens as aforesaid, provided Seller ~~shall, within five (5) days following receipt of Buyer’s title objections, if any, notify~~ notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the ~~Xxxxxxx Money~~ Exxxxxx Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section,~~ Buyer may terminate this Agreement, in which case the ~~Xxxxxxx Money~~ Exxxxxx Money, together with all interest earned thereon, shall be returned to Buyer, Seller shall reimburse Buyer up to $50,000.00 for all out of pocket costs and expenses incurred hereunder solely in the event Seller caused such Objection(s) from and after the effective date of the Title Commitment, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases and lease guaranties affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; (viii) the operating budget and any common area maintenance (CAM) reconciliations of the Property for the current year and following year, if available; (ix) the operating statements and delinquency reports of the Property for the twenty four (E24) calendar months immediately preceding the Effective Date or if a Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any; (xiii) the notes, mortgages and other loan documents securing repayment of the Loan, as listed on Exhibit K attached hereto and made a part hereof (collectively, the “Loan Documents”); (xiv) Tenant financials for each Tenant, to the extent reasonably available to Seller and consistent with each such Tenant’s reporting requirements; (xv) a complete copy of any feasibility study completed by the developer of the Property; (xvi) a copy of all primary and secondary state licenses or regulatory permits for the Property; and (xvii) a copy of any documents relating to a waiver of life safety code or physical plant requirements (collectively, the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s or its affiliates’ or agents’ possession or reasonably obtainable by Seller, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor materially interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant~~ Tenants under the ~~Lease~~Leases; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with ~~Tenant~~ the Tenants in connection with Buyer’s due diligence. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and ~~void~~void as to such Property, Buyer shall receive a refund of the ~~Xxxxxxx~~ Exxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. Within two (~~d) Within five (5~~2) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request ~~Estoppel Certificates (and simultaneously provide Purchaser with~~ a ~~copy~~ waiver of ~~such request) and a Waiver of~~ each Tenant’s right of first refusal, right of first offer or other purchase option, if any~~. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in~~ , to purchase the form attached hereto as Exhibit F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the “Tenant Estoppel Certificate”)Property. Seller shall use diligent and good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.obtain

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “"Title Commitment”") from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report ("Title Matters") with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “"Permitted Exceptions”". However, Permitted Exceptions shall not include any mechanic’s 's lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “"Liens”"). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer's objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s 's notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s 's receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “"Objection”"). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s 's possession or reasonably obtainable by Seller or Seller’s 's counsel: (Ai) a complete copy of all leases affecting the Property (unless the same have previously been provided to Buyer) and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s 's title insurance commitments and policies relating to the Property;; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Property; (Bvi) a copy of all ~~governmental permits/approvals; (C) a copy of all~~ environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s 's real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; ~~and~~ (Eviii) a copy of each tenant sales reports for the previous twenty four (24) calendar months or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (ix) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “"Due Diligence Materials”"). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller's possession or reasonably obtainable by Seller or Seller's counsel, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s 's representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s 's due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) ~~In the event that the Due Diligence materials enumerated in Section 6(b)(ii~~Within two (2) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request Estoppel Certificates certified to the following: "AR Capital, LLC, ARC WWHWCMI001, LLC, and their lender, successors and assigns" (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a Waiver of Tenant’s 's right of first refusal~~, if any~~. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (the “"Tenant Estoppel Certificate”"). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificate when Seller receives the same. (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s 's Lender, if applicable (the “"SNDA”"). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Global Trust, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) for ~~the~~ each Property from Escrow Agent promptly after the Effective Date. All matters shown in the Title Commitment with respect to which Buyer fails to object by written notice to Seller (“Buyer's Objection Notice”) prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”~~. However~~; provided, however, Permitted Exceptions shall not include and Seller shall be obligated to cure or remove any mechanic’s 's lien or any monetary lien, except for taxes and special assessments not yet due and payable, or any deeds of trust, mortgage, or other loan documents secured by the Property~~, (collectively, “Liens”)~~. Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller shall, within five (5) days following receipt of Buyer’s title objections, if any, notify Buyer of any objections which Seller elects not to remove or cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have ~~the right to terminate this Agreement upon written notice to Seller given within~~ five (5) days after receipt of Buyer's Objection Notice within which to notify Buyer in writing (“Seller~~’s notice~~'s Notice”) that Seller did or shall cure or remove such objectionable title matters, ~~upon~~ or to notify Buyer that Seller cannot or will not cure or remove such objectionable title matters. As to any exception to which ~~termination the Xxxxxxx Money~~ Buyer timely objects and Seller then does not notify Buyer that Seller did or shall remove such exception, Buyer shall be ~~returned~~ deemed to have accepted and agreed to accept title subject thereto unless Buyer ~~and neither party shall have any further obligation hereunder, except~~ timely exercises Buyer's right to terminate this Agreement as ~~otherwise expressly set forth herein~~provided in Section 9(b)(ii). If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent after the expiration of the Due Diligence Period and is thereafter added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ~~ten~~ five (105) days after the Buyer’s 's receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection ~~prior to the Closing Date, as extended per this Section~~within five (5) days after Seller's receipt of such written notice from Buyer, Buyer may by written notice delivered to Seller terminate this Agreement, in which case the Xxxxxxx Money shall be returned to Buyer, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (i) Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a complete copy of all leases affecting the Property and all amendments thereto ; (B) a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports for the Property (D) a copy of all architectural plans and specifications and construction drawings for improvements to be located on the Property; (E) a copy of Seller’s title insurance commitments relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; and (E) all service contracts and insurance policies or insurance certificates which affect the Property (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following Seller’s receipt of such request, which shall be made by Buyer in writing. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with the progress of construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall promptly repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section, Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, inspections, Tenant meetings and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the First Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust Inc)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Promptly after the date hereof, Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the ~~Property from Escrow Agent promptly after the Effective Date~~Property. All matters shown in the Title Commitment and survey (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, which arose by through or under Seller (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller ~~agrees~~ shall have no obligation to cure any Title Matter objected to, except as aforesaid, provided Seller notifies Buyer of any objections which Seller elects not to remove or cure ~~any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller shall,~~ within five (5) days following receipt of Buyer’s title objections, if any, notify Buyer of any objections which Seller elects not to remove or cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) days after receipt of Seller’s notice, upon which termination the ~~Xxxxxxx~~ Exxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the ~~Xxxxxxx~~ Exxxxxx Money shall be returned to Buyer, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (~~A) a complete copy of all leases affecting the Property and all amendments thereto ; (B~~i) a copy of all surveys and site plans of the Property, including, without limitation, any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~ii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiii) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Aiv) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cv) a copy of all environmental, engineering and physical condition reports for the Property; (Dvi) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; ~~and~~ (Evii) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (viii) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (ix) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel without cost to Seller, within three (3) business days following ~~Seller’s receipt~~ such request. All such Due Diligence Materials and documents shall be delivered to Buyer without any representation or warranty as to the completeness or accuracy of such ~~request~~materials or any other matter relating thereto, ~~which~~ and Buyer shall ~~be made by Buyer in writing~~have no right to rely on any Due Diligence Materials without the written consent of the party preparing same. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant under the Lease~~Seller; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. Buyer must obtain Seller's prior written approval of the scope and method of any environmental testing or investigation (other than a Phase I environmental inspection) and for any inspection which would alter the physical condition of the Property, prior to Buyer's commencement of such inspections, testing or examination. Prior to entry upon the Property, Buyer shall obtain and deliver to Seller ~~promptly all Final Reports produced or procured by Buyer related to the Property~~a certificate of insurance naming Seller as an additional insured, evidencing liability insurance coverage with combined single limits of not less than $2,000,000 from an acceptable underwriter. ~~Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. ~~Before Buyer may enter or inspect the Property, Buyer shall provide~~ Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide has provided Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property~~, and Seller may have a representative present during any and all examinations, inspections, Tenant meetings and/or studies on the Property~~. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the ~~Xxxxxxx~~ Exxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “"Title Commitment”") from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report ("Title Matters") with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “"Permitted Exceptions”". However, Permitted Exceptions shall not include any mechanic’s 's lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “"Liens”"). Seller shall be required to cure or remove all Liens on or before Closing (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any reasonable objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to ~~Closing~~Closing provided Seller reasonably estimates it can do so expending no more than Twenty Five Thousand Dollars ($25.000.00). Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer's objections. In the event that Seller refuses or is unable to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s 's notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s 's receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “"Objection”")~~. If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section~~, ~~the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date.~~ If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to ~~Buyer~~Buyer (and if such Objection relates to a matter which was known to Seller on the Effective Date or arises after the Effective Date and is caused by an intentional act or omission of Seller, Seller shall reimburse Buyer for all of its reasonable out of pocket costs and expenses incurred hereunder) and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (i) Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a complete copy of all leases affecting the Property and all amendments thereto ; (B) a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports for the Property (D) a copy of all architectural plans and specifications and construction drawings for improvements to be located on the Property; (E) a copy of Seller’s title insurance commitments relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; and (E) all service contracts and insurance policies or insurance certificates which affect the Property (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following Seller’s receipt of such request, which shall be made by Buyer in writing. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with the progress of construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall promptly repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section, Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, inspections, Tenant meetings and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the First Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Global Trust, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “"Title Commitment”") from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report ("Title Matters") with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “"Permitted Exceptions”". Any objection by Buyer to a Title Matter is herein referred to as an "Objection". However, Permitted Exceptions shall not include any mechanic’s 's lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property~~Property created by Seller or asserted by parties claiming by, through or under Seller (collectively, “"Liens”"). Seller shall be required to cure or remove all Liens [by payment (which may be from the proceeds to be paid by ~~payment,~~ Buyer at Closing) bond deposit or indemnity reasonably acceptable to Escrow Agent)]. Except for Liens as aforesaid, Seller ~~agrees~~ shall have no obligation to ~~remove or~~ cure any ~~objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing.~~ Title Matter objected to, except as aforesaid, provided Seller ~~shall, within five (5) days following receipt of Buyer’s title objections, if any, notify~~ notifies Buyer of any objections which Seller elects not to remove or ~~cure~~cure within five (5) business days following receipt of Buyer's objections. ~~Notwithstanding anything~~ Failure of Seller to ~~the contrary,~~ timely deliver such notice shall be deemed an election by Seller ~~has no obligation~~ not to ~~take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding~~ cure any such ~~title objections~~Objections other than Liens. In the event that Seller refuses to remove or cure any ~~objections~~Objections, Buyer shall have the ~~right~~ right, as Buyer's sole remedy at law or in equity, to terminate this Agreement as to a specific Property or Properties (if such Objection is a Permitted Reason and subject to the provisions of Sections 3(a) and (b) by labeling them as Dropped Properties, subject to Sections 3(a) and (b), or to terminate this Agreement in whole upon written notice to Seller given within five (5) business days after receipt of Seller’s 's notice, upon which termination the Xxxxxxx Money shall be ~~returned~~ returned, either in whole or as set forth on Exhibit A for the Dropped Properties, to Buyer and neither party shall have any further obligation ~~hereunder~~hereunder for such Properties, except as otherwise expressly set forth herein. Failure by Buyer to timely elect to terminate this Agreement as to a Property or all Properties shall constitute a waiver by Buyer of its right to do so. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent which new matter constitutes a material Objection to title and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s 's receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (~~an “~~a "New Objection”"). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such New Objection prior to the ~~Closing Date~~date of Closing, Buyer may, as ~~extended per this Section~~Buyer's sole remedy at law or in equity, ~~Buyer may~~ terminate this ~~Agreement~~Agreement for that Property or Properties without it counting towards the limit of Dropped Properties, in which case the Xxxxxxx Money shall be returned to ~~Buyer,~~ Buyer and neither party shall have any further obligation ~~hereunder~~hereunder for such Property or Properties, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall ~~provide~~ post (or cause Broker to ~~Buyer~~ post) on the Website copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s 's possession or reasonably obtainable by Seller or Seller’s 's counsel: (A1) a complete copy of all leases affecting the Property (unless the same have previously been provided to Buyer) and all amendments thereto and of all material correspondence relating thereto and all related lease guaranties; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s 's title insurance ~~commitments~~ policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s 's real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; ~~and~~ (Eviii) reserved; (ix) reserved; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; and (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “"Due Diligence Materials”"). Seller shall deliver any other documents relating to ~~the~~ each Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller's possession or reasonably obtainable by Seller or Seller's counsel, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, ~~and~~ and. Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s 's representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have (i) the unconditional right, for any reason or no reason, to terminate this Agreement in whole or (ii) for any Permitted Reason (and only for a Permitted Reason) to terminate this Agreement with respect to any individual Property, in which case the Property or Properties terminated will be considered Dropped Properties under and subject to Sections 3(a) and (b), by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and ~~void~~void as to such Dropped Properties or all Properties if terminated in whole, Buyer shall receive a refund of the Xxxxxxx ~~Money~~Money apportioned to the Dropped Properties or in whole, and all rights, liabilities and obligations of the parties under this Agreement for the Dropped Properties or all Properties if terminated in whole shall expire, except as otherwise expressly set forth herein. (c) ~~In the event that the Due Diligence materials enumerated in Section 6(b)(ii~~Within two (2) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request Estoppel Certificates certified to the following: "AR Capital, LLC, ARC GBLMESA001, LLC, Xxxx Real Estate Investments, Inc., American Realty Capital Properties, Inc., and their lender, successors and assigns" (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a ~~Waiver~~ waiver of Tenant’s 's right of first ~~refusal, if any~~refusal or first offer. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from ~~Tenant~~ the "Required Tenant's" in the form attached hereto as Exhibit F, F or ~~Buyer shall also accept, in lieu of~~ the form ~~Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to~~ required under ~~its~~ such Tenant's Lease for each Property (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer."Tenant

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Global Trust, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the date that is five (5) business days prior to the expiration of the ~~First~~ expiration of the Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty arising through Seller or Tenant, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property or the Ground Lease or any judgments and federal and state tax liens on the MOB Property or the Ground Lease (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity reasonably acceptable to Escrow Agent). Seller ~~agrees~~ shall have no obligation to ~~remove or~~ cure any ~~objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior~~ Title Matter objected to, except the Liens. If Seller does not provide written notice to ~~Closing. Seller shall, within five (5) days following receipt of Buyer’s title objections, if any, notify~~ Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary~~cure within five (5) business days following Seller’s receipt of Buyer’s objections, Seller ~~has no obligation~~ shall be deemed to ~~take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding~~ have elected not to cure any such ~~title~~ objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, or Seller’s failure to give such notice within the required time period, upon which termination the Xxxxxxx ~~Money~~ Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter ~~not revealed in~~ materially and adversely affecting title to the Property is placed of record against the Property after the effective date of the Title Commitment ~~is discovered by Buyer or by the Escrow Agent~~ and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection ~~prior to the Closing Date, as extended per this Section~~within ten (10) days following Seller’s receipt of an Objection from Buyer, Buyer may terminate this Agreement, in which case the Xxxxxxx ~~Money~~ Money, together with all interest earned thereon, shall be returned to Buyer, and in the event such Objection was created, consented to or affirmatively permitted by Seller after the Effective Date, Seller shall reimburse Buyer for all reasonable out of pocket costs and expenses incurred hereunder up to $25,000.00, and upon such termination neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. The Closing Date shall be extended as necessary to allow for the full running of the time periods set forth in this Section. (ib) Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s ~~possession or reasonably obtainable by Seller or Seller’s counsel~~possession: (Ai) a complete copy of all leases and ground leases affecting the Property and all amendments ~~thereto~~ thereto; (Bii) a copy of all surveys and site plans of the Property, including, without limitation, any as-built surveys obtained or delivered to the Tenant of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and ~~construction~~ constructions drawings for improvements ~~to be~~ located on the Property, which shall be made in electronic form, or if not available in electronic form, then at Seller’s office; (Eiv) a copy of Seller’s title insurance ~~commitments~~ policy relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the ~~Property~~Property and of all governmental permits and approvals; (Bvi) a copy of all ~~governmental permits/approvals; (C) a copy of all~~ environmental, engineering and physical condition reports for the Property; (Dvii) the operating budget and any CAM reconciliations of the Property for the current year and following year, if available; (viii) the operating statements and delinquency reports of the Property for the twenty-four (24) month period immediately preceding the Effective Date; (ix) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years; ~~and~~ (Ex) all service contracts ~~and insurance policies or insurance certificates~~ to which Seller is a party which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties in favor of Seller relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any; (xiii) updated set of Tenant financials to be provided through the Closing Date to extent reasonably available to Seller and consistent with Tenant’s reporting requirements; (xiv) a copy of all primary and secondary state licenses or regulatory permits for the Property; and (xv) a copy of any documents relating to a waiver of life safety code or physical plant requirements (collectively, the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession, within three (3) business days following ~~Seller’s receipt of~~ such request. Buyer acknowledges that all third party information, ~~which shall be made~~ reports, studies and materials delivered to Buyer are without any representation or warranty by ~~Buyer in writing~~Seller. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting noninvasive soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property ~~nor interfere with the progress of construction on the Property~~ or the conduct of business by Tenant under the Lease or Seller under the Ground Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all ~~claims~~ claims, damages or ~~damages~~ liabilities to the extent resulting from the activities of Buyer or Buyer’s representatives, agents, or consultants on the Property, which indemnity shall survive Closing or any termination of this Agreement, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. Buyer and Buyer’s representatives, agents and consultants shall ~~deliver~~ maintain commercial general liability insurance, including broad form property damage, with limits of not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, in form and substance reasonably acceptable to ~~Seller promptly~~ Seller, insuring against all ~~Final Reports produced~~ liability of Buyer and Buyer’s representatives, agents and consultants, arising out of any entry on, or ~~procured by Buyer related~~ inspections of, the Property pursuant to the ~~Property~~provisions hereof, and Buyer shall provide Seller with evidence of such insurance coverage before such entry, including evidence that Seller is an additional insured on such commercial general liability policy. ~~Subject to the terms~~ Buyer shall not provide Seller with copies of ~~this Section~~any environmental inspection reports, soil test reports, or property inspection reports unless Seller requests copies of same in writing. Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant and Ground Lessor in connection with Buyer’s due diligence. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site ~~visits~~visits to the MOB Real Property and the Parking Lot Real Property. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. Within two (~~d) Within five (5~~2) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request ~~Estoppel Certificates~~ a waiver of any first right of refusal, right of first offer or other purchase right that any party may have to purchase the Property (and simultaneously provide ~~Purchaser~~ Buyer with ~~a copy~~ copies of such ~~request~~requests). Within two (2) business days following the Effective Date, Seller shall deliver to Buyer a draft of the completed Estoppel Certificate (defined below) and ~~a Waiver of Tenant’s right of first refusal, if any~~Ground Lease Estoppel Certificate (defined below). It shall be a condition of Closing that Seller shall have obtained an a tenant and guarantor estoppel certificate ~~from Tenant~~ certified to Buyer, its lender and their successors and assigns in the form attached hereto as Exhibit F, or ~~Buyer shall also accept~~to the extent the Lease explicitly requires a particular form, ~~in lieu of the form Exhibit F, any other estoppel certificate which is~~ in the form ~~of estoppel~~ required under the ~~tenant is obligated to deliver and has agreed to under its~~ Lease (the “~~Tenant~~ Estoppel Certificate”) and from the Ground Lessor in the form required attached hereto and made a part hereof as Exhibit G (the “Ground Lease Estoppel Certificate”). Seller shall ~~use good faith efforts to obtain the same. Seller shall~~ promptly deliver to Buyer ~~photocopies~~ a photocopy or pdf ~~files~~ file of the executed ~~Tenant~~ Estoppel Certificate and Ground Lease Estoppel Certificate when Seller receives the same. Notwithstanding anything to the contrary contained herein, a failure by Seller to obtain the Estoppel Certificate and/or the Ground Lease Estoppel Certificate shall not constitute a default under this Agreement by Seller. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (fd) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements affecting the Property, as may be reasonably requested by Buyer. Notwithstanding anything to the contrary contained herein, a failure by Seller to obtain any such estoppel certificates shall not constitute a default under this Agreement by Seller. (e) If the fee estate in the Parking Lot Real Property is encumbered by one or more mortgages which are not subordinate to the Ground Lease, it shall be a condition of Closing that Seller shall have obtained a non-disturbance and attornment agreement from the holder of each such mortgage in form and substance reasonably acceptable to Buyer (the “NDA”). Seller and Buyer shall use good faith, reasonable efforts to obtain an NDA from such holder, in form approved by Buyer, before the expiration of the Due Diligence Period. Notwithstanding anything to the contrary contained herein, a failure by Seller to obtain the NDA shall not constitute a default under this Agreement by Seller. (f) On or before the expiration of the Due Diligence Period, Buyer shall notify Seller in writing if Buyer elects not to assume at Closing any of the Contracts (defined below). If Buyer does not notify Seller prior to the expiration of the Due Diligence Period that it elects not to assume any of the Contracts, Buyer shall be deemed to have accepted and agreed to assume all of the Contracts. If Buyer exercises its right not to assume one or more Contracts at Closing, Seller shall give notice of termination of such disapproved Contract(s); provided, if by the terms of the disapproved Contract Seller has no right to terminate same on or prior to Closing, Buyer shall be required at Closing to assume all obligations thereunder until the effective date of the termination; provided, further, if any fee or other compensation is due under any disapproved Contract as a result of such termination, whether payable before or after the Closing Date, Seller shall remain obligated to pay the contractor or to reimburse Buyer for the payment of the termination charge. Notwithstanding the foregoing, Seller shall, without notice from Buyer, terminate any and all property management and listing agreements prior to Closing at Seller’s sole cost and expense.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title insurance commitment (the “Title Commitment”) for the Property from Escrow Agent promptly after the ~~Effective Date~~date hereof. All matters shown in the Title Commitment (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. .” However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property (collectively, “Liens”). , and Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent), at Seller’s sole cost and expense, on or before the date of Closing, anything that may be contained herein to the contrary notwithstanding. Seller ~~agrees~~ shall have no obligation to ~~remove or~~ cure any ~~objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing.~~ Title Matter objected to, provided Seller ~~shall, within five (5) days following receipt of Buyer’s title objections, if any, notify~~ notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections (or is deemed to have refused to remove or cure any objections), Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination Buyer shall receive a refund of the Xxxxxxx Money ~~shall be returned to Buyer~~ and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) three (3) business days prior to the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in upon which ~~case~~ termination Buyer shall receive a refund of the Xxxxxxx Money ~~shall be returned to Buyer,~~ and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by ~~Seller or~~ Seller~~’s counsel~~: (~~A) a complete copy of all leases affecting the Property and all amendments thereto ; (B~~i) a copy of all surveys and site plans of for the Property, including, without limitation, any as-built surveys obtained or delivered to tenants of each Property in connection with their construction; (~~C) a copy of all environmental reports for the Property (D) a copy of all architectural plans and specifications and construction drawings for improvements to be located on the Property; (E~~ii) a copy of Seller’s title insurance ~~commitments~~ policies relating to the Property; (Fiii) ~~all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement~~ copy of ~~the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within~~ Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports deed for the Property; (Biv) ~~a copy~~ copies of all licenses, permits and approvals required by any governmental or quasi-governmental agency, body, department, commission, board, bureau, instrumentality or office, or otherwise appropriate with respect to the construction, ownership, operation, leasing, maintenance, or use of the Property or any part thereof, including, without limitation, all certificates of occupancy, permits~~/approvals; (C) a copy~~ , authorizations and approvals issued by any federal, state, county, municipal or other government or any governmental or quasi-governmental agency, department, commission, board, bureau, office or instrumentality, foreign or domestic, or any of them, having jurisdiction over the Property, and copies of all ~~engineering and physical condition reports for~~ certificates issued by the local board of fire underwriters (or other body exercising similar functions) relating to the Property; (Dv) copies of all service contracts, any subsisting and assignable warranties and guaranties relating to the improvements and fixtures comprising the Property~~’s real estate tax bills for the current tax year~~, if any; and (Evi) ~~all service contracts and insurance policies~~ copies of any soil tests or ~~insurance certificates which affect~~ other environmental tests, audits or reports related to the Property (collectively, the “Due Diligence Materials”). ~~Seller~~ The Due Diligence Materials shall ~~deliver any other documents~~ include, without limitation, all materials in Seller’s possession or control, or which are otherwise easily obtainable by Seller, relating to the Property reasonably requested by Buyer within three (3) business days following Seller’s receipt of such request, which shall be made by Buyer in writing. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical environmental condition of the Property~~; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to~~ . During the term of this Agreement, Buyer, its ~~agents~~ agents, contractors and ~~designees,~~ designees (collectively “Buyer’s Representatives”) shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; , provided, however, that ~~such activities by or on behalf of~~ Buyer on has no right to review the Property ~~shall not damage the Property nor interfere~~ with ~~the progress of construction on the Property~~ respect to appraised value thereof or ~~the conduct of business by Tenant under the Lease; and provided further, however, that~~ any Maintenance Items (as hereinafter defined). Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and Buyer’s Representatives and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and ~~the~~ Buyer’s ~~representatives~~ Representatives to inspect the Property. ~~Before Buyer may enter or inspect~~ Notwithstanding the ~~Property~~foregoing, Buyer shall ~~provide Seller with a certificate~~ not have the right to conduct an environmental Phase II examination without the express prior written consent of ~~insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to~~ Seller. ~~After the Effective Date~~The term “Maintenance Items,” as used herein, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and means all examinations, inspections, Tenant meetings and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the First Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event items that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is ~~obligated~~ responsible to ~~deliver and has agreed to~~ maintain under ~~its~~ the Lease (i.e., all items, other than the structural elements of the building comprising a portion of the Property (the “~~Tenant Estoppel Certificate~~Building”)~~. Seller shall use good faith efforts to obtain~~ , including, without limitation, the ~~same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same~~footings, foundation, structural beams and supports, floor slabs and load bearing walls. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Kulicke & Soffa Industries Inc)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) for the Property from Escrow Agent promptly after the ~~Effective Date~~date hereof. All matters shown in the Title Commitment with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller ~~shall~~shall have no obligation to cure any title matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the ~~Xxxxxxx~~ Exxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, if the matter in question is not caused by the actions of the Buyer or its agents, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the ~~Xxxxxxx~~ Exxxxxx Money shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder, not to exceed $15,000.00, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (i) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (B) a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports for the Property (D) a copy of all architectural plans and specifications and construction drawings and contracts for improvements to be located on the Property; (E) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) ~~business~~ days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; ~~and~~ (E) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property; (F) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (G) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all ~~claims~~ claims, liens, or damages to the extent resulting from the activities of Buyer or its agents on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. ~~Before Buyer may enter or inspect the Property,~~ Buyer shall ~~provide Seller~~ not discuss any due diligence related findings and/or questions with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the ~~Effective Date, and upon reasonable prior notice to Seller and after obtaining~~ Tenant without the Seller’s ~~advance~~ prior written ~~approval in each instance~~consent, ~~Buyer shall be permitted~~ prior to ~~speak and meet with Tenant in connection with Buyer’s due diligence~~closing. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the First Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the ~~Xxxxxxx~~ Exxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein~~. (c)~~ . In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by ~~Seller unless~~ Seller~~, Buyer~~ . Buyer’s rights and ~~Tenant determine that it would~~ Seller’s obligations with respect to any matters arising subsequent to the First Due Diligence Period shall be ~~commercially unreasonable to complete or correct any such matters~~in accordance with Sections 9(b) and 9(c). (dc) Within five (5) ~~business~~ days following the Commencement of the Second Due Diligence Period Seller shall request Estoppel Certificates certified to Buyer, the Approved Assignee and their Lender, successors and assigns (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a Waiver of Tenant’s right of first refusal~~, if any~~. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (the “Tenant Estoppel Certificate”) and an estoppel certificate from Guarantor in the form attached hereto as Exhibit G (the “Guarantor Estoppel Certificate”). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificates when Seller receives the same. (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust III, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any deeds of trust, mortgage, or other loan documents secured by the Property, other than the Loan Documents (defined below), or any judgments and federal and state tax liens (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller ~~agrees~~ shall have no obligation to ~~remove or~~ cure any ~~objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing.~~ Title Matter objected to, except the Liens as aforesaid, provided Seller ~~shall, within five (5) days following receipt of Buyer’s title objections, if any, notify~~ notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx ~~Money~~ Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ~~ten~~ five (105) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section,~~ Buyer may terminate this Agreement, in which case the Xxxxxxx ~~Money~~ Money, together with all interest earned thereon, shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within ~~five~~ two (52) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a complete copy of all leases affecting the Property and all amendments thereto ; (B) a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports for the Property (D) a copy of all architectural plans and specifications and construction drawings for improvements to be located on the Property; (E) a copy of Seller’s title insurance commitments relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; and (E) all service contracts and insurance policies or insurance certificates which affect the Property (the “Due Diligence Materials, which shall include, without limitation, the notes, mortgages and other loan documents securing repayment of the Loan, as listed on Exhibit G attached hereto and made a part hereof (collectively, the “Loan Documents”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s or its affiliates’ or agents’ possession, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting non-invasive soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, ~~that~~ (i) such inspections shall not involve any invasive testing unless Buyer submits a written request to Seller requesting permission to conduct such invasive testing, which permission may be withheld or denied in Seller’s sole and absolute discretion, and (ii) such activities by or on behalf of Buyer on the Property shall not damage the Property nor materially interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant~~ Tenants under the ~~Lease~~Leases; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which ~~obligation~~ obligations shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with ~~Tenant~~ the Tenants in connection with Buyer’s due diligence; provided, however, Seller and/or Seller’s representatives shall have the opportunity to accompany Buyer or Buyer’s representatives in each such instance. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) ~~In the event that the Due Diligence materials enumerated in~~ Buyer agrees to maintain or cause to be maintained, at Buyer’s expense, (i) a policy of comprehensive general public liability insurance, with a broad form contractual liability endorsement covering all indemnification obligations of Buyer under Section ~~6(b)(ii~~6(b) ~~above disclose any matters which need completion or correction~~hereof, ~~such matters shall be completed or corrected by Seller unless Seller~~with a combined single limit of not less than $2,000,000 per occurrence for bodily injury and property damage, insuring Buyer and ~~Tenant determine~~ Buyer’s representatives who perform actual work on the Property on Buyer’s behalf against any injuries or damages to persons or property that ~~it would be commercially unreasonable~~ may result from or are related to ~~complete or correct any such matters~~Buyer’s and/or Buyer’s representatives entry upon the Property, and Seller as an additional insured. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained estoppel certificates from each Tenant and Guarantor, certified to Buyer, its lender and their successors and assigns, which, except as provided in the following sentence, shall be in the form attached hereto as Exhibit F (the “Estoppel Certificate”). Recognizing that the VA will not be willing to execute and deliver an ~~estoppel certificate from Tenant~~ Estoppel Certificate in the form attached hereto as Exhibit F, or Buyer shall ~~also accept, in lieu of~~ accept from the ~~form Exhibit F, any other estoppel certificate which is in~~ VA an Estoppel Certificate substantially similar to the form of estoppel certificate that Seller previously received from the ~~tenant~~ VA, a copy of which estoppel certificate is ~~obligated to deliver and has agreed to under its Lease~~ attached hereto as Exhibit L (the “~~Tenant Estoppel Certificate~~VA Estoppel”). Within five (5) business days following the Effective Date, Seller shall ~~use good faith efforts~~ deliver to ~~obtain~~ Buyer, for Buyer’s review and approval, draft Estoppel Certificates for the ~~same~~Leases. Seller shall promptly deliver to Buyer ~~photocopies~~ a photocopy or pdf ~~files~~ file of the executed ~~Tenant~~ Estoppel Certificate when Seller receives the same. Within five (5) business days following the Effective Date, Seller shall request a waiver of any right of first refusal, right of first offer or other purchase option, if any, that any party may have to purchase the Property (and simultaneously provide Buyer with copies of such requests). (e) Seller shall use ~~good faith~~ commercially reasonable efforts to obtain a subordination, non-disturbance and attornment agreement from each Tenant in form and substance reasonably acceptable to Buyer and ~~Buyer’s~~ Lender, if applicable (~~the~~ each such agreement, an “SNDA”); provided, however, Buyer acknowledges that with respect to the VA Lease, the tenant under the VA Lease will not be willing to execute and deliver an SNDA on the form requested by Buyer, but only on the form described in the VA Lease. (f) Seller shall use ~~good faith~~ commercially reasonable efforts to obtain estoppel certificates with respect to reciprocal easement agreements affecting the Property, as may be reasonably requested by Buyer. (g) On or before the expiration of the Due Diligence Period, Buyer shall notify Seller in writing if Buyer elects not to assume at Closing any of the Contracts (defined below). If Buyer does not notify Seller prior to the expiration of the Due Diligence Period that it elects not to assume any of the Contracts, Buyer shall be deemed to have accepted and agreed to assume all of the Contracts. If Buyer exercises its right not to assume one or more Contracts at Closing, Seller shall give notice of termination of such disapproved Contract(s); provided, if by the terms of the disapproved Contract Seller has no right to terminate same on or prior to Closing, Buyer shall be required at Closing to assume all obligations thereunder until the effective date of the termination; provided, further, if any fee or other compensation is due under any disapproved Contract as a result of such termination, whether payable before or after the Closing Date, Seller shall remain obligated to pay the contractor or to reimburse Buyer for the payment of the termination charge. Notwithstanding the foregoing, Seller shall, without notice from Buyer, terminate any and all property management and listing agreements prior to Closing at Seller’s sole cost and expense. All obligations under this Section 6(g) will survive the Closing. (h) Buyer and Seller shall complete and execute such documents as the VA may require to effectuate the assignment of the VA Lease and the Funded Maintenance Account from Seller to Buyer. This Section 6(h) shall survive the Closing.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller ~~agrees~~ shall have no obligation to ~~remove or~~ cure any ~~objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing.~~ Title Matter objected to, except for Liens, provided Seller ~~shall, within five (5) days following receipt of Buyer’s title objections, if any, notify~~ notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) business days following the Effective Date, Seller shall provide to ~~Buyer~~ Buyer, to the extent not already provided to Buyer, copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or ~~reasonably obtainable by Seller or Seller’s counsel~~control: (Ai) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; ~~and~~ (Eviii) a copy of each tenant sales reports received by Seller from Tenant for the previous twenty four (24) calendar months or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (ix) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel and not confidential or privileged, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall maintain or cause to be maintained a policy of comprehensive general liability insurance, with a combined single limit of not less than $1,000,000.00 per occurrence for bodily injury and property damage, insuring Buyer and Seller, as an additional insured, against any injuries or damages to persons or property that may result from or are related to: (x) Buyer's or Buyer's representatives' entry upon the Property; and (y) any investigations or other activities related thereto which are conducted on the Property. Buyer shall provide Seller with a certificate of insurance as evidence of such insurance prior to any physical inspection of the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) ~~In the event that~~ Seller has provided the Due Diligence ~~materials enumerated~~ Materials to Buyer without recourse, representation or warranty and assumes no responsibility for the accuracy or completeness of any statement or other matter in ~~Section 6(b)(ii) above disclose~~ the Due Diligence Materials, except as otherwise expressly set forth in this Agreement. Buyer shall keep all Due Diligence Materials confidential, except for information that is or becomes generally available to the public. Buyer will not make any ~~matters which need completion or correction~~disclosure of the Due Diligence Materials to any parties other than its partners, ~~such matters~~ investors, lenders, accountants, agents, advisors and attorneys, and in so doing shall ~~be completed or corrected by Seller unless Seller~~notify each recipient of the confidentiality obligations under this Section. Upon any termination of this Agreement, Buyer shall promptly deliver to Seller all Due Diligence Materials and ~~Tenant determine that it would be commercially unreasonable~~ all copies thereof and copies of all third party reports obtained by Buyer in connection with its due diligence related to ~~complete or correct~~ the Property. The obligations in this Section as to delivery and confidentiality shall survive any ~~such matters~~termination of this Agreement but shall not survive the Closing. (d) Within ~~five~~ two (52) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request ~~Estoppel Certificates~~ an estoppel certificate certified to Buyer, its Lender, successors and assigns (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request~~) and a Waiver of Tenant’s right of first refusal, if any~~). It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in substantially the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain an estoppel certificate from Tenant. (e) Seller shall use good faith efforts to obtain an estoppel certificate from Guarantor in a form reasonably acceptable to Guarantor, but obtaining an estoppel certificate from Guarantor shall not be a condition to Closing and the ~~same~~failure to obtain same shall not be a default by Seller under this Agreement. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificate[s] when Seller receives the same. (ef) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”), but obtaining an SNDA shall not be a condition to Closing and the failure to obtain same shall not be a default by Seller under this Agreement. Buyer shall be responsible for all costs and expenses in connection with obtaining the SNDA. (fg) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) ~~for the Property~~ from Escrow ~~Agent~~ Agent, a survey and a zoning report for each Property promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any deeds of trust, mortgage, or other loan documents secured by the Property, or any judgments and federal and state tax liens (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing, including the payment of a sum of money in connection therewith. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except the Liens as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx ~~Money~~ Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section,~~ Buyer may terminate this ~~Agreement~~Agreement as to the applicable Property, in which case the pro-rata portion of the Xxxxxxx Money set forth on Schedule 3(a) attached hereto applicable to such terminated Property, together with all interest earned thereon, shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation ~~hereunder~~hereunder with respect to such terminated Property, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases and lease guaranties affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including, without limitation, any as-built surveys obtained or delivered to the Tenant of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings for improvements ~~to be~~ located on the Property; (Eiv) a copy of the Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of~~ occupancy and zoning report for the Property ~~for its intended purpose~~ and ~~such equivalent evidence~~ of ~~lawful possession is not unreasonably conditioned,~~ all governmental permits and ~~zoning reports for the Property~~approvals; (Bvi) a copy of all ~~governmental permits/approvals; (C) a copy of all~~ environmental, engineering and physical condition reports for the Property; (Dvii) the operating budget and any CAM reconciliations of the Property for the current year and following year, if available; (viii) the operating statements and delinquency reports of the Property for the twenty-four (24) month period immediately preceding the Effective Date; (ix) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years; ~~and~~ (Ex) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural or roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any; (xiii) updated set of Tenant’s financials to be provided through the Closing Date to extent reasonably available to Seller and consistent with Tenant’s reporting requirements; (xiv) complete copy of any feasibility study completed by the developer; (xv) a copy of all primary and secondary state licenses or regulatory permits for the Property; and (xvi) a copy of any documents relating to a waiver of life safety code or physical plant requirements (collectively, the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property ~~nor interfere with the progress of construction on the Property~~ or the conduct of business by ~~Tenant~~ Tenants under the ~~Lease~~Leases; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with ~~Tenant~~ the Tenants in connection with Buyer’s due diligence. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement with respect to any Property by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and ~~void~~void as to such terminated Property, Buyer shall receive a refund of the pro-rata portion of the Xxxxxxx ~~Money~~Money set forth on Schedule 3(a) attached hereto applicable to such terminated Property, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement with respect to such terminated Property shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. Within two (~~d) Within five (5~~2) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request ~~Estoppel Certificates~~ a waiver of any first right of refusal, right of first offer or other purchase right that any party may have to purchase either Property (and simultaneously provide ~~Purchaser~~ Buyer with ~~a copy~~ copies of such ~~request~~requests). Within two (2) ~~and~~ business days following the Effective Date, Seller shall deliver to Buyer a ~~Waiver~~ draft of ~~Tenant’s right of first refusal, if any~~the completed Estoppel Certificate (defined below) for each Lease. It shall be a condition of Closing that Seller shall have obtained an a tenant estoppel certificate ~~from Tenant~~ certified to Buyer, its lender and their successors and assigns in the form attached hereto as Exhibit F, or ~~Buyer shall also accept~~to the extent the Lease explicitly requires a particular form, ~~in lieu of the form Exhibit F, any other estoppel certificate which is~~ in the form ~~of estoppel~~ required under the ~~tenant is obligated to deliver and has agreed to under its~~ Lease (the “~~Tenant~~ Estoppel 10 Certificate”)~~. Seller shall use good faith efforts to obtain the same~~. Seller shall promptly deliver to Buyer ~~photocopies~~ a photocopy or pdf ~~files~~ file of the executed ~~Tenant~~ Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (fd) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements affecting the Properties, as may be reasonably requested by Buyer. (e) On or before the expiration of the Due Diligence Period, Buyer shall notify Seller in writing if Buyer elects not to assume at Closing any of the Contracts (defined below). If Buyer does not notify Seller prior to the expiration of the Due Diligence Period that it elects not to assume any of the Contracts, Buyer shall be deemed to have accepted and agreed to assume all of the Contracts. If Buyer exercises its right not to assume one or more Contracts at Closing, Seller shall give notice of termination of such disapproved Contract(s); provided, if by the terms of the disapproved Contract Seller has no right to terminate same on or prior to Closing, Buyer shall be required at Closing to assume all obligations thereunder until the effective date of the termination; provided, further, if any fee or other compensation is due under any disapproved Contract as a result of such termination, whether payable before or after the Closing Date, Seller shall remain obligated to pay the contractor or to reimburse Buyer for the payment of the termination charge. Notwithstanding the foregoing, Seller shall, without notice from Buyer, terminate any and all property management and listing agreements prior to Closing at Seller’s sole cost and expense. (f) Seller shall cause its property manager to complete the Property Manager Questionnaire in the form attached hereto as Exhibit L and return the same to Buyer within ten (10) days following the Effective Date. (g) Prior to Closing, Seller shall use good faith efforts to amend the Lease between Davita Dialysis Center Seller and Renal Hypertension Center for Suite 200 in the Davita Dialysis Center Property to delete the reference in Section 4 thereof to a fixed Common Area Maintenance rate of $225.00 per month and incorporate any other corresponding revisions that may be necessary to clarify that tenant is responsible for its proportionate share (i.e., 39.8%) of common area maintenance, as presently provided in Section 19 of such Lease (the “Renal Hypertension Center Lease Amendment”). Seller shall provide Buyer with a copy of the initial draft of the Renal Hypertension Center Lease Amendment and any subsequent revisions thereto promptly after such document is distributed or received by Seller. The Renal Hypertension Center Lease Amendment shall be subject to Buyer’s prior written consent, which shall not be unreasonably withheld or delayed. Buyer shall not be deemed to be acting unreasonably if it denies consent to the Renal Hypertension Center Lease Amendment if the form presented for approval does not conform to the requirements set forth in this Section 6(g). Seller shall be responsible for all costs and expenses, including any inducement consideration or commissions, incurred in connection with the Renal Hypertension Center Lease Amendment.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) for the Property from Escrow Agent promptly after the ~~Effective Date~~date hereof. All matters shown in the Title Commitment with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s 's lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller ~~shall~~shall have no obligation to cure any title matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer's objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s 's notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, if the matter in question is not caused by the actions of the Buyer or its agents, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s 's receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder, not to exceed $15,000.00, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s 's possession or reasonably obtainable by Seller or Seller’s 's counsel: : (i) (A) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (B) a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports for the Property (D) a copy of all architectural plans and specifications and construction drawings and contracts for improvements to be located on the Property; (E) a copy of Seller’s 's title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property.; (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s 's real estate tax bills for the current tax year; ~~and~~ (E) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property; (F) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (G) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). . (c) Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the ~~Lease~~Leases; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all ~~claims~~ claims, liens, or damages to the extent resulting from the activities of Buyer or its agents on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s 's representatives to inspect the Property. ~~Before Buyer may enter or inspect the Property,~~ Buyer shall ~~provide Seller~~ not discuss any due diligence related findings and/or questions with ~~a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory~~ the Tenant without the Seller's prior written consent, prior to Seller. After the Effective Date, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligenceclosing. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the First Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) ~~business~~ days following the ~~Second Due Diligence Period~~ Effective Date Seller shall request Estoppel Certificates certified to Buyer, the Approved Assignee and their Lender, successors and assigns (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a Waiver of any Tenant’s 's right of first refusal~~, if any~~. It shall be a condition of Closing that Seller shall have obtained an estoppel ~~certificate~~ certificates from Ground Lessor in the form attached hereto as Exhibit F (the “Ground Lessor's Estoppel Certificate”), from the Tenant in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ G (the “Tenant Estoppel Certificate”) and from Guarantor in the form attached hereto as Exhibit H (the “Guarantor Estoppel Certificate”). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificates when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s 's Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust Inc)

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) for the Property from Escrow Agent promptly after the ~~Effective Date~~date hereof. All matters shown in the Title Commitment or any survey of the Property with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s 's lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property (collectively, “Liens”). Seller shall be required to cure or remove at or prior to Closing all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller ~~agrees~~ shall have no obligation to ~~remove or~~ cure any ~~objections of Buyer which are of a nature that are capable of being cured~~ title matter objected to, except as aforesaid with ~~reasonable efforts prior~~ respect to ~~Closing.~~ Liens, provided Seller ~~shall, within five (5) days following receipt of Buyer’s title objections, if any, notify~~ notifies Buyer of any objections which Seller elects not to remove or ~~cure~~cure within two (2) business days following receipt of Buyer's objections. ~~Notwithstanding anything~~ If Seller does not respond to ~~the contrary~~any title matter objected to by Buyer with such two (2) business day period, Seller ~~has no obligation~~ shall be deemed to ~~take any steps, bring any action,~~ have refused to remove or ~~incur any costs, effort or expenses whatsoever regarding any~~ cure such title ~~objections~~matter or objection. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within ~~five~~ two (52) business days after receipt of Seller’s 's notice (or deemed notice), upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. In the event that Seller refuses to remove or cure any objections and Buyer does not terminate this Agreement as provided in the preceding sentence, such objections shall be deemed waived and the title matters the subject of such objections shall be deemed Permitted Exceptions. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ~~ten~~ two (102) business days after the Buyer’s 's receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Seller shall have no obligation to cure any Objection, provided Seller notifies Buyer ~~provides~~ of any Objection which Seller ~~with such written notice regarding any new matter added~~ elects not to remove or cure prior to the ~~Title Commitment pursuant~~ earlier of two (2) business days following receipt of Buyer's notice of such Objection or the date of Closing. If Seller does not respond to ~~this Section~~any notice of an Objection within such two (2) business day period or prior to Closing, ~~the Closing Date shall be automatically extended for a reasonable time and~~ Seller shall be ~~automatically provided a reasonable time~~ deemed to have refused to remove or cure such Objection. In the event that Seller refuses to remove or cure any ~~such objection~~ Objection, Buyer shall have the right to terminate this Agreement upon written notice to Seller given prior to the ~~Closing Date. If Seller does not remove~~ earlier of two (2) business days after receipt of Seller's notice (or ~~cure such Objection prior to~~ deemed notice) or the ~~Closing Date~~date of Closing, ~~as extended per this Section, Buyer may terminate this Agreement, in~~ upon which ~~case~~ termination the Xxxxxxx Money shall be returned to ~~Buyer,~~ Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. In the event that Seller refuses to remove or cure any Objection and Buyer does not terminate this Agreement as provided in the preceding sentence, such Objection shall be deemed waived and the title matters the subject of such Objection shall be deemed Permitted Exceptions. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s 's possession or ~~reasonably obtainable by Seller or Seller’s counsel~~control: (Ai) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s 's title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all ~~engineering and physical condition~~ environmental reports for the Property; (Dvii) copies of the Property’s 's real estate tax bills for the current and prior two (2) tax ~~year~~years; (viii) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date; and (Eix) a written inventory of all ~~service contracts and insurance policies or insurance certificates which affect the Property~~ items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property~~, conducting soil tests~~, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that (a) such activities shall not include, without Seller's prior written consent, the taking of samples or conducting any invasive tests, including without limitation any activities or work associated with a Phase II environmental site assessment; (b) such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; ~~and provided further, however, that~~ and (c) Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s 's representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s 's due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the ~~Property~~Property or speaking with Tenant, and Seller may have a representative present during any and all examinations, inspections, ~~Tenant meetings~~ interviews and/or studies on of the Property. Buyer shall keep all information or data received or discovered in connection with its examinations,inspections, interviews and/or studies of the Property strictly confidential, except that Buyer may disclose the same to prospective mortgage lenders or their agents, to the consultants and other professionals engaged by Buyer to assist in Buyer's acquisition of the Property, or as may be required by applicable law. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust Inc)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) ~~for the Property~~ from Escrow Agent promptly after the ~~Effective Date~~date hereof. All matters shown in the Title Commitment with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”~~. However~~; provided, however, Permitted Exceptions shall not include and Seller shall be obligated to cure or remove any mechanic’s lien or any monetary ~~lien,~~ lien or any deeds of trust, ~~mortgage~~mortgages, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller shall, within five (5) days following receipt of Buyer’s title objections, if any, notify Buyer of any objections which Seller elects except for taxes and special assessments not ~~to remove or cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action~~yet due and payable, or ~~incur~~ any ~~costs, effort or expenses whatsoever regarding any such title objections. In~~ mortgage and related documents executed in connection with the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth hereinLoan Assumption. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after ~~the~~ Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does ~~not~~ not, within thirty (30) days of receipt of notice of an Objection, remove or cure such ~~Objection prior to the Closing Date, as extended per this Section~~Objection, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to Buyer. In addition, if such Objection was caused by an act of Seller or by reason of Seller’s refusal to act Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within ~~five (5) business days following~~ the ~~Effective Date~~time period set forth in Section 1(e), Seller shall ~~provide~~ have provided to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all ~~leases~~ Leases affecting the Property and all amendments ~~thereto~~ thereto; (Bii) a copy of ~~all surveys and site plans~~ the survey of the Property; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ constructed and located on the Property; (Eiv) a copy of Seller’s title insurance ~~commitments~~ policy relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports occupancy for the Property; (Bvi) a copy of all ~~governmental permits/approvals; (C) a copy of all~~ environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior three (3) tax ~~year~~years; (viii) copies of any and all operating statement for the Property for the years 2007, 2008 and 2009; (Eix) all service contracts and certificates of insurance ~~policies or insurance certificates~~ which affect the ~~Property~~ Property; (x) a copy of any management agreement relating to the management of the Property;and (xi) copies of the material loan documents for the Loan (collectively, the “Due Diligence Materials”). To the extent in Seller’s possession, Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, ~~conducting soil tests,~~ and making surveys, environmental and appraisal inspections, mechanical and structural engineering studies~~, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property~~; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with the ~~progress of construction on the Property or the~~ conduct of business by any Tenant under the ~~Lease~~Leases; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property~~, and~~ . Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. Buyer shall deliver to Seller ~~promptly all Final Reports produced or procured by Buyer related to the Property~~an insurance policy which shall contain a contractual indemnity provision covering such indemnity. ~~Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and ~~the~~ Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak ~~and~~ and/or meet with ~~Tenant~~ any two (2) Tenants whose leases expire in 2011 in connection with Buyer’s due diligence~~. Upon signing this agreement~~, provided that Seller shall ~~provide~~ have the right, either in person or by his designee, to accompany Buyer ~~with the name of a contact person(s) for the purpose of arranging site visits.~~ at all times at any such meeting and participate in any conference calls between Buyer and such Tenants Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Notwithstanding the foregoing, Buyer may not conduct a Phase 2 environmental inspection without the prior consent of Seller, which may be withheld or granted in Seller’s sole discretion. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. If Buyer does not deliver to Seller prior to the expiration of the Due Diligence Period a written notice stating that it waives its right to terminate this Agreement, then Buyer shall be deemed to have elected to terminate this Agreement, for any reason or no reason at all. (c) In Seller shall use good faith efforts to obtain an estoppel certificate from each Tenant substantially in the ~~event that~~ form attached hereto as Exhibit F-1 (the ~~Due Diligence materials enumerated in Section 6(b)(ii~~“Tenant Estoppel Certificate”) ~~above disclose any matters which need completion or correction, such matters~~ prior to the Closing Date. Seller shall ~~be completed or corrected by~~ promptly deliver to Buyer photocopies of the executed Tenant Estoppel Certificates when Seller ~~unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d)~~ receives the same. Within five (5) business days following the ~~Second Due Diligence Period~~ date that Buyer has received complete copies of the Leases, Buyer may propose modifications or additions to the Tenant Estoppel Certificate. (d) If Seller ~~shall~~ is unable to timely obtain a Tenant Estoppel Certificate from 100% of the Tenants (based on building square footage) prior to the Closing Date, Seller agrees at the request of Buyer to deliver to Buyer prior to the Closing Date a Seller Estoppel in substantially the form attached as Exhibit F-2 (a “Seller Estoppel”) for such missing Tenant Estoppel Certificates (relating to its premises, provided that Buyer shall not be required to accept a Seller Estoppel for more than 25% of the Tenants. If Seller delivers a Seller Estoppel, and ~~simultaneously provide Purchaser with~~ if thereafter a ~~copy of~~ Tenant Estoppel Certificate is received from the Tenant under the Lease covered by such ~~request) and a Waiver of Tenant’s right of first refusal~~Seller Estoppel, ~~if any. It~~ then such Tenant Estoppel Certificate shall be ~~a condition of Closing that~~ substituted for the applicable Seller Estoppel and Seller shall have ~~obtained an estoppel certificate from Tenant in~~ no further liability thereunder, provided that the form attached hereto as Exhibit F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate ~~when~~ contains no material changes from the Seller ~~receives the same. (e) Seller shall use good faith efforts to obtain a subordination~~Estoppel, ~~non-disturbance and attornment agreement from Tenant in form and substance reasonably~~ or if materially changed, is otherwise acceptable to ~~Buyer and~~ Buyer~~’s Lender, if applicable (~~. The provisions of this Section shall survive the ~~“SNDA”)~~Closing. ~~(f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.~~

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital New York Recovery Reit Inc)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) ), survey and Zoning Report for the Property from Escrow Agent promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or Zoning Report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; ~~and~~ (Eviii) a copy of each tenant sales reports for the previous twenty four (24) calendar months; (ix) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to ~~the~~ each Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) ~~In the event that the Due Diligence materials enumerated in Section 6(b)(ii~~Within fifteen (15) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the ~~Second Due Diligence Period~~ Effective Date Seller shall request Estoppel Certificates certified to Buyer, the Approved Assignees and their Lender, successors and assigns (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a Waiver of Tenant’s right of first refusal~~, if any~~. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F for each Property (the “Tenant Estoppel Certificate”). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificates when Seller receives the same. (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Properties, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to ~~object~~ object, or for which Buyer has objected but Seller has elected (or deemed to have elected) not to cure, prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary ~~lien~~lien caused or created by Seller, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent) caused or created by Seller; provided, however, if the aggregate amount of monies required to satisfy any Lien which is a judgment lien shall equal or exceed $100,000, Seller shall have the right to terminate this Agreement by notice to Buyer. Upon such termination by Seller, this Agreement shall terminate, the Xxxxxxx Money shall be promptly refunded to Buyer, and Seller shall pay to Buyer all of Buyer’s reasonable out-of-pocket costs and expenses incurred by Buyer in connection with this Agreement, not to exceed FIFTY THOUSAND DOLLARS ($50,000)~~. Seller agrees~~ , and neither party shall have any further liability to ~~remove or cure any objections~~ the other hereunder other than the obligations of ~~Buyer~~ the parties which ~~are of a nature that are capable of being cured with reasonable efforts prior to~~ survive Closing. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of~~ except as aforesaid, by Buyer~~’s title objections, if any,~~ . Seller shall notify Buyer of any objections which Seller elects ~~not~~ to remove or ~~cure~~cure within three (3) business days following receipt of Buyer’s objections. ~~Notwithstanding anything~~ If Seller fails to ~~the contrary~~deliver such notice, Seller ~~has no obligation~~ shall be deemed to ~~take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding~~ have elected not to cure any such ~~title~~ objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given ~~within five~~ prior to the expiration of the Due Diligence Period (~~5) days after receipt~~ time being of ~~Seller’s notice~~the essence), upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ~~ten~~ two (102) business days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the date that is the later of the Closing ~~Date, as extended per this Section~~Date and the date that is two (2) business days after Seller’s receipt of written notice of the Objection, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to Buyer, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. Notwithstanding the foregoing, if the Objection is a result of a new title exception caused or created by Seller after the Effective Date which Seller fails to cure, Seller shall reimburse Buyer for Buyer’s reasonable out of pocket costs and expenses incurred in connection with this Agreement not to exceed FIFTY THOUSAND DOLLARS ($50,000). (ib) Within ~~five~~ three (53) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or ~~reasonably obtainable by Seller or Seller’s counsel~~reasonable control: (Ai) a complete copy of all leases affecting the Property (unless the same have previously been provided to Buyer) and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; ~~and~~ (Eviii) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (ix) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (x) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (xi) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession or reasonable control, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, ~~conducting soil tests, and~~ making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other non-invasive investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. Buyer shall ~~deliver~~ not perform or cause to be performed, without Seller’s prior written consent, any invasive or destructive sampling or testing of any media, including, but not limited to, water, soil and all other media (the “Invasive Testing”), which consent shall be in Seller’s sole discretion. If Buyer determines that Invasive Testing is required, then Buyer shall provide Seller with copies of any diligence that may be reasonably required by Seller to determine whether to consent to such Invasive Testing. Promptly upon receipt, Buyer shall provide to Seller ~~promptly all Final Reports~~ copies of the results and reports produced as a result of any such Invasive Testing, provided that neither Buyer nor its third party contractors or ~~procured by Buyer related~~ agents shall be required to ~~the Property~~provide any representations or warranties to Seller in relation to such results and reports. ~~Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence, provided, however that Seller shall contact Tenant to arrange any interviews, and (ii) a representative of Seller shall be present during any such interview, if requested by Seller. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. Prior to the time Buyer avails itself of the rights herein contained to enter upon the Property, Buyer shall deliver to Seller evidence that Buyer, Buyer’s agents and contractors, or the particular party who intends to enter upon the Property, has in effect a fully paid policy of insurance that insures Buyer and Seller against any liability normally covered by a general public liability policy with limits of at least ONE MILLION DOLLARS ($1,000,000.00) per occurrence. The policy maintained, or caused to be maintained, pursuant to this Section 3.5 shall insure the contractual liability of Buyer covering the indemnities herein and shall (i) name Seller as an additional insured party, and (ii) contain a provision that the insurance provided thereunder shall be primary and noncontributing with any other insurance available to Seller. If Buyer fails to deliver a notice of termination to Seller in accordance with this Section prior to the expiration of the Due Diligence Period, such failure shall be deemed a determination by Buyer to proceed to Closing, subject to and in accordance with the terms of this Agreement and the Xxxxxxx Money shall be non-refundable, except as expressly set forth herein (i.e., Seller’s default, failure of a condition precedent to Buyer’s obligation to close and casualty/condemnation, and a new Objection as described in Section 6(a) of this Agreement). Buyer’s obligations set forth in this Section shall survive Closing and/or the termination of this Agreement. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. Within two (~~d) Within five (5~~2) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request Estoppel Certificates certified to the following: “AR Capital, LLC, ARC KSFTWPA001, LLC, and their lender, successors and assigns” (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a ~~Waiver~~ waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in substantially the form attached hereto as Exhibit FF or, ~~or Buyer shall also accept~~if Tenant refuses to sign the requested form, ~~in lieu of the form Exhibit F, any other estoppel certificate which is~~ then in the form of estoppel certificate required by the ~~tenant is obligated to deliver and has agreed to under its~~ Lease (the “Tenant Estoppel Certificate”). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificate when Seller receives the same.. If Seller is unable to deliver the Tenant Estoppel pursuant to the foregoing sentence on or before the Closing Date, Seller may extend the Closing Date up to fifteen (15) days in order to give Seller additional time to deliver such Tenant Estoppel. If Seller is unable to deliver such estoppel certificate on or before the Closing Date (as the same may be extended), such failure shall not be a default hereunder, and Buyer may, at its option, terminate this Agreement by written notice thereof to Seller on or before the Closing Date, in which case the Xxxxxxx Money shall be returned to Buyer, and neither party shall have any further liability under this Agreement, other than obligations which expressly survive the termination of this Agreement, or waive this condition and proceed to Closing (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). Delivery of an SNDA shall not be a condition to Buyer’s obligation to proceed to Closing, nor shall the failure to deliver an SNDA be a default by Seller hereunder. (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer. Delivery of such estoppel certificates shall not be a condition to Buyer’s obligation to proceed to Closing, nor shall the failure to deliver such estoppel certificates be a default by Seller hereunder.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Global Trust, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property or any judgments and federal and state tax liens (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing, including the payment of a sum of money in connection therewith. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except the Liens as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx ~~Money~~ Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section,~~ Buyer may terminate this Agreement, in which case the Xxxxxxx ~~Money~~ Money, together with all interest earned thereon, shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) business days ~~following~~ after the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases and lease guaranties affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; (viii) the operating budget and any common area maintenance (CAM) reconciliations of the Property for the current year and following year, if available; (ix) the operating statements and delinquency reports of the Property for the current calendar year, plus the year-end financials for the previous calendar year; ~~and~~ (Ex) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any; (xiii) Tenant financials for each Tenant, to the extent reasonably available to Seller and consistent with such Tenant’s reporting requirements; (xiv) Guarantor financials for each Guarantor, to the extent reasonably available to Seller and consistent with each such Guarantor’s reporting requirements; (xv) a complete copy of any feasibility study completed by the developer of the Property; (xvi) a copy of all primary and secondary state licenses or regulatory permits for the Property, if any; and (xvii) a copy of any documents relating to a waiver of life safety code or physical plant requirements, if any (collectively, the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within ~~three~~ Seller’s or its affiliates’ or agents’ possession or reasonably obtainable by Seller, within five (35) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor materially interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant~~ Tenants under the ~~Lease~~Leases; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with ~~Tenant~~ the Tenants in connection with Buyer’s due diligence. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than ~~two~~ five (25) business days) before entering the Property, and Seller ~~may~~ must have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel ~~certificate~~ certificates from each Tenant and Guarantor, certified to Buyer, its lender and their successors and assigns, in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (the “~~Tenant~~ Estoppel Certificate”). Within five (5) business days following the Effective Date, Seller shall ~~use good faith efforts~~ deliver to ~~obtain~~ Buyer, for Buyer’s review and approval, draft Estoppel Certificates for the ~~same~~Leases. Seller shall promptly deliver to Buyer ~~photocopies~~ a photocopy or pdf ~~files~~ file of the executed ~~Tenant~~ Estoppel Certificate when Seller receives the same. Within five (5) business days following the Effective Date, Seller shall request a waiver of any right of first refusal, right of first offer or other purchase option, if any, that any party may have to purchase the Property (and simultaneously provide Buyer with copies of such requests). (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from each Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (~~the~~ each such agreement, an “SNDA”). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements affecting the Property, as may be reasonably requested by Buyer. (f) On or before the expiration of the Due Diligence Period, Buyer shall notify Seller in writing if Buyer elects not to assume at Closing any of the Contracts (defined below). If Buyer does not notify Seller prior to the expiration of the Due Diligence Period that it elects not to assume any of the Contracts, Buyer shall be deemed to have accepted and agreed to assume all of

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) for ~~the~~ each Property from Escrow Agent promptly after the ~~Effective Date~~date hereof. All matters shown in the Title Commitment with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent)) at or before Closing. Seller agrees to remove or cure any title objections of Buyer which are of a nature that are capable of being cured with reasonable efforts at or prior to Closing. Seller ~~shall~~shall have no obligation to cure any title matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure for each Property within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement with respect to such Property upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money with respect to the applicable Property shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection at or prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this ~~Agreement~~Agreement with respect to the affected Property, in which case the Xxxxxxx Money with respect to the affected shall be returned to ~~Buyer,~~ Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases affecting the Property and all amendments thereto and a copy of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports (if any) for the Property; and of all governmental permits/approvals for the Property; (Bvi) a copy of all ~~governmental permits/approvals; (C) a copy of all~~ environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years (or for as long as Seller has owned the Property if shorter); ~~and~~ (Eviii) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (ix) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (x) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to ~~the~~ each Property reasonably requested by Buyer in writing within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, subject to the terms of the respective Leases, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer (or its agents or designees) on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer (or its agents or designees) and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, ~~and upon reasonable prior notice~~ subject to ~~Seller and after obtaining Seller’s advance written approval in each instance~~the terms of the respective Leases, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall endeavor to provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement as to one or more of the Properties by giving written notice thereof to Seller prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the applicable Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) ~~business~~ days following the ~~Second Due Diligence Period~~ Effective Date Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request~~) and a Waiver of Tenant’s right of first refusal, if any~~). It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached ~~hereto as Exhibit F, or Buyer shall also accept, in lieu of~~ to the ~~form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its~~ respective Lease for each Property (the “Tenant Estoppel Certificate”). ) and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel ~~Certificate~~ Certificates when Seller receives the same. (ed) Seller ~~shall use good faith efforts to~~ shall, if requested in writing by Buyer, obtain a subordination, non-disturbance and attornment agreement from Tenant in form ~~and substance reasonably acceptable~~ attached to ~~Buyer and Buyer’s Lender, if applicable~~ the respective Lease for each Property (the “SNDA”); provided, however, that Seller's failure to obtain an SNDA for any one or more of the Properties shall not constitute a default of this Agreement by Seller if Seller has used good faith efforts to obtain the same. (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer; provided, however, that Seller's failure to obtain an estoppel certificate with respect to any reciprocal easement agreement shall not constitute a default of this Agreement by Seller if Seller has used good faith efforts to obtain the same.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) ), survey and Zoning Report for the ~~Property~~ Properties from Escrow Agent promptly after commencement of the ~~Effective Date~~applicable Due Diligence Period for such Property(ies). All matters shown in the Title ~~Commitment~~ Commitment, survey or Zoning Report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement with respect to any such Property upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money applicable to such Property shall be returned to Buyer and neither party shall have any further obligation ~~hereunder~~hereunder with respect to such Property, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment for a Property is discovered by Buyer or by the Escrow Agent and is added to the respective Title Commitment by the Escrow Agent at or prior to ~~Closing~~Closing for such Property, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this ~~Agreement~~Agreement as to such Property, in which case the Xxxxxxx Money applicable to such Property shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder with respect to such Property and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days ~~following~~ of the ~~Effective Date~~Substantially Complete Date for each Property, Seller shall provide to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; ~~and~~ (Eviii) a copy of each tenant sales reports for the previous twenty four (24) calendar months; (ix) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to ~~the~~ each Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In Within two (2) days following the ~~event that~~ commencement of the Due Diligence ~~materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction~~Period, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates certified to Buyer, the Approved Assignees and their Lender, successors and assigns (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a Waiver of Tenant’s right of first ~~refusal, if any~~refusal for the Property. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F for each Property (the “Tenant Estoppel Certificate”). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificates when Seller receives the same. (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the ~~Xxxxxxx Money~~ Deposit shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the ~~Xxxxxxx Money~~ Deposit shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases affecting the Property (unless the same have previously been provided to Buyer) and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (Fv) a copy of the certificate of occupancy (or local equivalent) and zoning reports for the Property; and of all governmental permits/approvals; (vi) a copy of all environmental, engineering and physical condition reports for the Property; (vii) copies of the Property’s real estate tax bills for the current and prior two (2) tax years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; (viii) a copy of each tenant sales reports for the previous twenty four (24) calendar months or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (ix) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies which affect the Property. , if any; (iixi) ~~Within five~~ a copy of all Consumer Warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (5xii) ~~business days following~~ a written inventory of all items of personal property to be conveyed to Buyer, if any (the ~~commencement of the Second~~ “Due Diligence ~~Period,~~ Materials”). Seller shall ~~provide to Buyer copies of the following~~ deliver any additional documents ~~and materials pertaining~~ relating to the Property reasonably requested by Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel~~: (A) a copy of the certificate of occupancy~~, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; and (E) all service contracts and insurance policies or insurance certificates which affect the Property (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, and, at Buyer's sole expense, undertake such investigations, evaluations and analyses of the Property as Buyer deems appropriate in its sole discretion in an effort to determine whether or not the Property is suitable for Buyer's intended use and other purposes, including without limitation, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. . (c) Buyer shall have ~~the~~ unconditional right, ~~for any reason or no reason, to terminate this Agreement~~ by the giving of written notice ~~thereof~~ to Seller on or prior to the ~~expiration~~ last day of the ~~First~~ Due Diligence Period, to either (i) terminate this Agreement, in which event this Agreement shall ~~become null~~ terminate and ~~void,~~ the Deposit shall be returned to Buyer ~~shall receive a refund of~~ by the ~~Xxxxxxx Money~~Escrow Agent, and ~~all rights, liabilities and obligations of~~ the parties ~~under~~ shall have no further obligations to each other hereunder except those obligations that expressly survive the termination of this ~~Agreement~~ Agreement, or (ii) specify the objectionable matters (“Due Diligence Objections”) in said notice (“Due Diligence Objection Notice”), in which event, Seller shall ~~expire, except as otherwise expressly set forth herein.~~ be obligated to give notice to Buyer within five (c5) In business days after the ~~event that~~ giving of the Due Diligence ~~materials enumerated~~ Objection Notice, stating whether Seller is willing to attempt in ~~Section 6(b)(ii~~good faith to rectify the Due Diligence Objections. If Seller timely gives notice of its intention to attempt to rectify the Due Diligence Objections, then Seller shall have a period of thirty (30) ~~above disclose~~ days after the last day of the Review Period (“Due Diligence Cure Period”) within which to do so. Buyer hereby acknowledges that any ~~matters which need completion~~ such attempts may be undertaken by the Tenant, who currently occupies the property pursuant to a Triple Net Lease, and that Seller makes no warranties as to the condition of the Property or ~~correction~~to the quality of any repairs, ~~such matters~~ replacements, or improvements to the property made in response to the Due Diligence Objections. If Seller does not give timely notice of its election to so attempt to rectify the Due Diligence Objections, then Seller shall be ~~completed or corrected~~ deemed to have elected not to attempt to do so, and in such event Buyer shall have the right to elect either to terminate this Agreement by ~~Seller unless~~ written notice to the Seller, or to attempt, through its own efforts, to rectify the Due Diligence Objections, in which latter event Buyer shall have until the end of the Due Diligence Cure Period within which to do so. If either Seller or Buyer does attempt to rectify the Due Diligence Objections, and ~~Tenant determine~~ in the event, despite such efforts, the Due Diligence Objections are not rectified to Buyer’s satisfaction in its sole discretion within the Due Diligence Cure Period, then on or prior to the last day of the Due Diligence Cure Period, Buyer may terminate this Agreement by written notice to Seller. Buyer’s failure to terminate this Agreement within the period specified shall be deemed to be an election that ~~it would be commercially unreasonable~~ Buyer is satisfied with respect to ~~complete or correct any such matters~~its Due Diligence Objections and Buyer shall thereupon proceed toward Closing pursuant to the other provisions of this Agreement. (d) Within ~~five~~ two (52) ~~business~~ days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request Estoppel Certificates certified to the following: “AR Capital, LLC, ARC AZCTOLA001, LLC, and their lender, successors and assigns” (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a ~~Waiver~~ waiver of ~~Tenant’s~~ any right of first refusal~~, if any~~. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (the “Tenant Estoppel Certificate”). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificates when Seller receives the same. (e) If requested by Buyer, Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)

Examination of Property. ~~Seller~~ Lessor and ~~Buyer~~ Lessee hereby agree as follows: (a) ~~Buyer~~ Lessee shall order a title commitment (the “Title Commitment”) ~~for the Property~~ from Escrow ~~Agent~~ Agent, a survey and a zoning report for each Property promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which ~~Buyer~~ Lessee fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Lessor shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any bond indentures, deeds of trust, mortgage, or other loan documents secured by ~~the~~ any Property, or any judgments and federal and state tax liens (collectively, “Liens”). ~~Seller~~ Lessor shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). ~~Seller agrees~~ Lessor shall have no obligation to cure any Title Matter objected to, except the Liens as aforesaid, provided Lessor notifies Lessee of any objections which Lessor elects not to remove or cure ~~any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller shall,~~ within five (5) business days following receipt of ~~Buyer~~Lessee’s title objections, if any, notify Buyer of any objections which Seller elects not to remove or cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title objections. In the event that ~~Seller~~ Lessor refuses to remove or cure any objections, ~~Buyer~~ Lessee shall have the right to terminate this Agreement upon written notice to ~~Seller~~ Lessor given within five (5) business days after receipt of ~~Seller~~Lessor’s notice, upon which termination the Xxxxxxx ~~Money~~ Money, and all interest earned thereon, shall be returned to ~~Buyer~~ Lessee and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by ~~Buyer~~ Lessee or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, ~~Buyer~~ Lessee shall have until the earlier of (i) ten (10) days after the ~~Buyer~~Lessee’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide ~~Seller~~ Lessor with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller Lessor does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section, Buyer~~ Lessee may terminate this ~~Agreement~~Agreement as to the applicable Property, in which case the pro-rata portion of the Xxxxxxx Money set forth on Schedule 1 attached hereto applicable to such terminated Property, together with all interest earned thereon, shall be returned to ~~Buyer~~Lessee, and neither party shall have any further obligation ~~hereunder~~hereunder with respect to such terminated Property, except as otherwise expressly set forth herein. If Lessee terminates the Agreement as to a Property pursuant to the immediately preceding sentence and the Title Matter at issue was intentionally caused by Lessor, then upon such termination, Lessor shall reimburse Lessee for all out of pocket costs and expenses incurred by Lessee hereunder in connection with Lessee’s diligence of such Property. (ib) Within five (5) business days following the Effective Date, ~~Seller~~ Lessor shall provide to ~~Buyer~~ Lessee copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within ~~Seller~~Lessor’s possession or reasonably obtainable by ~~Seller~~ Lessor or ~~Seller~~Lessor’s counsel: (Ai) a complete copy of all leases and lease guaranties affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of ~~Seller~~Lessor’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax years or, if the Property has been owned by Lessor for less than two (2) tax years, for the period of ownership; (viii) the operating budget and any common area maintenance (CAM) reconciliations of the Property for the current year and following year, if available; (ix) the operating statements and delinquency reports of the Property for the twenty four (E24) calendar months immediately preceding the Effective Date or if a Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Lessee, if any; (xiii) Tenant financials for each Tenant, to the extent reasonably available to Lessor and consistent with each such Tenant’s reporting requirements; (xiv) a complete copy of any feasibility study completed by the developer of the Property; (xv) a copy of all primary and secondary state licenses or regulatory permits for the Property; and (xvi) a copy of any documents relating to a waiver of life safety code or physical plant requirements (collectively, the “Due Diligence Materials”). ~~Seller~~ Lessor shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Lessee, to the extent within Lessor’s or its affiliates’ or agents’ possession or reasonably obtainable by Lessor, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, ~~Buyer~~Lessee, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as ~~Buyer~~ Lessee may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of ~~Buyer~~ Lessee on the Property shall not damage the Property nor materially interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant~~ Tenants under the ~~Lease~~Leases; and provided further, however, that ~~Buyer~~ Lessee shall indemnify and hold ~~Seller~~ Lessor harmless from and against any and all claims or damages to the extent resulting from the activities of ~~Buyer~~ Lessee on the Property, and ~~Buyer~~ Lessee shall ~~promptly~~ repair any and all damage caused, in whole or in part, by ~~Buyer~~ Lessee and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section, Seller~~ Lessor shall reasonably cooperate with the efforts of ~~Buyer~~ Lessee and the ~~Buyer~~Lessee’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, ~~and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer~~ Lessee shall be permitted to speak and meet with ~~Tenant~~ the Tenants in connection with ~~Buyer~~Lessee’s due diligence. Upon signing this ~~agreement~~Agreement, ~~Seller~~ Lessor shall provide ~~Buyer~~ Lessee with the name of a contact person(s) for the purpose of arranging site visits. ~~Buyer~~ Lessee shall give ~~Seller~~ Lessor reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and ~~Seller~~ Lessor may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. ~~Buyer~~ Lessee shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to ~~Seller~~ Lessor and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and ~~void~~void with respect to all Properties, ~~Buyer~~ Lessee shall receive a refund of the Xxxxxxx Money, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. Lessee shall also have the right to terminate this Agreement with respect to any single Property if the Property subject to termination has specific material Lease, title, survey, property condition, zoning or environmental issues that a commercially reasonable lessee would not elect to close over, in which event this Agreement shall become null and void with respect to the terminated Property or Properties, Lessee shall receive a refund of the pro-rata portion of the Xxxxxxx Money set forth on Schedule 1 attached hereto applicable to such terminated Property or Properties, and all rights, liabilities and obligations of the parties under this Agreement shall terminate with respect to (but only with respect to) such terminated Properties, except as otherwise expressly set forth therein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. Within two (~~d) Within five (5~~2) business days following the ~~Second Due Diligence Period Seller~~ Effective Date, Lessor shall request an Estoppel ~~Certificates~~ Certificate (~~and simultaneously provide Purchaser with a copy of such request~~defined below) from each Tenant and a ~~Waiver~~ written waiver of ~~Tenant’s~~ right of first refusal, ~~if any~~right of first offer or other purchase option that any party may have to purchase any Property. It shall be a condition of Closing that ~~Seller~~ Lessor shall have obtained an estoppel certificate ~~from Tenant~~ in the form attached hereto as Exhibit FF (each, ~~or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the~~ an “~~Tenant~~ Estoppel Certificate,” and collectively, “Estoppel Certificates”~~). Seller~~ ) from each Tenant, and Lessor shall use good faith efforts to obtain the same. ~~Seller~~ Each Estoppel Certificate obtained by Lessor shall be fully executed by the applicable Tenant and Guarantor(s), if any, and dated no earlier than thirty (30) days prior to the date of Closing. In addition, the business terms of each Estoppel Certificate must be in accordance with and not contradict the corresponding Lease. If any Lease and any amendments, bearing the original signatures of the landlord and tenant thereunder have not been delivered to Lessee previously, a copy thereof confirming that the copy is true, correct and complete shall be attached to the corresponding Estoppel Certificate. Lessor shall promptly deliver to ~~Buyer~~ Lessee photocopies or pdf files of ~~the~~ each executed ~~Tenant~~ Estoppel Certificate when ~~Seller~~ Lessor receives the same. (ed) ~~Seller~~ If the fee estate in any Property is encumbered by a mortgage that is not subordinate to the Ground Lease for such Property, it shall ~~use good faith efforts to obtain~~ be a ~~subordination, non-disturbance and attornment~~ condition of Closing that Lessor shall have obtained either: (i) a subordination agreement ~~from Tenant~~ in form and substance reasonably acceptable to ~~Buyer and Buyer’s Lender~~Lessee from the holder of such mortgage, if pursuant to which such mortgage will be subordinated to the applicable Ground Lease (~~the~~ each, a “~~SNDA~~Fee Mortgage Subordination”); or (ii) a release of lien of mortgage in form and substance reasonably acceptable to Lessee from the holder of such mortgage pursuant to which such Property is released from the lien of said mortgage (each, a “Fee Mortgage Release”). Within two (2) business days following the Effective Date, Lessor shall request the Fee Mortgage Subordination or Fee Mortgage Release from each such mortgagee. (e) Within two (2) business days following the Effective Date, Lessor shall deliver to Lessee the form of Ground Lease. Lessee and Lessor shall use good faith efforts to negotiate the final form of Ground Lease prior to the expiration of the Due Diligence Period. The Ground Lease for each Leasehold Property shall reflect the term, rent, rent escalations and renewal options applicable to such Leasehold Property described on Schedule 6(e) attached hereto and made a part hereof. (f) ~~Seller~~ Within two (2) business days following the Effective Date, Lessor shall deliver to Lessee the form of the Pinnacle Leases. Lessee and Lessor shall use good faith efforts to negotiate the final form of the Pinnacle Leases prior to the expiration of the Due Diligence Period. The Pinnacle Leases shall reflect the term, rent, rent escalations, suite number, square footage and renewal options applicable to such Property described on Schedule 6(f) attached hereto and made a part hereof. The Pinnacle Leases for the Xxxxx Property, Community Health Property, FOC Property (limited to the FOC Clinical Lease), Xxxxxx Property and Medical Sciences Property shall be triple-net (NNN). The Pinnacle Leases for the Bloom Property, FOC Property (limited to the FOC I Lease and the FOC II Lease) shall be double-net (NN). (g) Lessor shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by ~~Buyer~~Lessee.

Appears in 1 contract

Samples: Lease Agreement

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title insurance commitment (the “Title Commitment”) from Escrow Agent and a current or updated survey for the Property ~~from Escrow Agent~~ (the “Survey”) promptly after the ~~Effective Date~~date hereof. ~~All~~ Buyer shall have ten (10) days after receipt of the Title Commitment and the Survey, but in no event later than the expiration of the Due Diligence Period, to object to all matters shown in the Title Commitment ~~with~~ or Survey (“Title Matters”) by delivering written notice thereof to Seller and the Escrow Agent (“Objections”). With respect to any Title Matters which Buyer fails to ~~object~~ make an Objection prior to the expiration of the ~~First~~ Due Diligence ~~Period~~ Period, such Title Matters shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or ~~any~~ other monetary ~~lien~~lien encumbering the fee interest of Seller in the Property, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller ~~agrees~~ shall have no obligation to ~~remove or~~ cure any ~~objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing.~~ Objections, except as aforesaid, provided Seller ~~shall, within five (5) days following receipt of Buyer’s title objections, if any, notify~~ notifies Buyer of any ~~objections~~ Objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary~~cure within five (5) business days following receipt of Buyer’s Objections and if no such notice is given, it will be deemed that Seller has ~~no obligation~~ elected not to ~~take any steps, bring any action,~~ remove or ~~incur any costs, effort or expenses whatsoever regarding any~~ cure such ~~title objections~~Objection. In the event that Seller refuses (or is deemed to have refused) to remove or cure any ~~objections~~Objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt (or deemed receipt) of Seller’s notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If no such notice is given by Buyer within such five (5) business day period, then Buyer’s right of termination will be deemed waived and all such title Objections will be deemed Permitted Exceptions. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have ~~until the earlier of~~ three (i3) ~~ten (10)~~ business days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, ~~or (ii) the date of Closing,~~ to provide Seller and Escrow Agent with ~~written notice of its objection~~ an Objection to any such new title ~~exception (an “Objection”)~~exception. If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall ~~be automatically provided a reasonable time~~ have two (2) business days after receipt of Buyer’s new Objection to notify Buyer as to whether Seller elects to remove or cure ~~any~~ such ~~objection prior to~~ new Objection and the Closing ~~Date~~shall be adjourned until the date that is five (5) days after Seller delivers such notification to Buyer. If Seller does not elect to remove or cure such new Objection, or if Seller fails to remove or cure such Objection prior to the date of Closing ~~Date,~~ (as ~~extended per this Section~~may have been adjourned as set forth above), Buyer may terminate this Agreement, in which case the Xxxxxxx Money (less the Independent Consideration) shall be returned to ~~Buyer,~~ Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the ~~following~~ documents and materials pertaining to the Property as set forth on Exhibit H, (“Due Diligence Materials”), to the extent within Seller’s possession or reasonably obtainable by ~~Seller or~~ Seller’s counsel: (A) a complete copy of all leases affecting the Property and all amendments thereto ; (B) a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports for the Property (D) a copy of all architectural plans and specifications and construction drawings for improvements to be located on the Property; (E) a copy of Seller’s title insurance commitments relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; and (E) all service contracts and insurance policies or insurance certificates which affect the Property (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following Seller’s receipt of such request, which shall be made by Buyer in writing. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its ~~agents~~ agents, contractors and designees, (collectively “Buyer’s Representatives”) shall have the ~~right~~ right, subject to the rights of Tenant, to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer or Buyer’s Representatives on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer or Buyer’s Representative on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer~~ The foregoing indemnity shall ~~deliver to Seller promptly all Final Reports produced~~ not include any claims, demands, causes of action, losses, damages, liabilities, costs or ~~procured~~ expenses (including attorneys’ fees and disbursements) that result from (y) the mere discovery, by Buyer ~~related to~~ or Buyer’s Representatives, of any violations of laws or pre-existing conditions on the ~~Property. Subject to~~ Property during Buyer’s investigations conducted pursuant to, and in accordance with, the terms of this ~~Section,~~ Agreement or (z) the negligence or willful misconduct of Seller or any of Seller’s representatives. Seller shall reasonably cooperate with the efforts of Buyer and ~~the~~ Buyer’s ~~representatives~~ Representatives to inspect the Property and the Improvements. Notwithstanding the foregoing, Buyer shall not have the right to conduct an environmental Phase II examination without the express prior written consent of Seller. Notwithstanding anything herein to the contrary, Buyer’s environmental consultant may perform a Phase I Environmental Site Assessment on the Property. ~~Before~~ Buyer, in performing such due diligence, agrees to use commercially reasonable efforts to comply with reasonable procedures and with any and all laws, ordinances, rules, and regulations applicable to the Property and will not engage in any activities which would violate any permit, license, or Environmental Law or other regulation. During the time period in which Buyer ~~may enter~~ or ~~inspect~~ Buyer’s Representatives are accessing the Property, Buyer shall ~~provide Seller~~ maintain, and shall cause Buyer’s Representatives to maintain, at Buyer's expense, a policy of comprehensive general public liability insurance with a ~~certificate~~ combined single limit of ~~insurance naming Seller (~~not less than $2,000,000 per occurrence for bodily injury and property damage, insuring Buyer and Seller, as additional insureds, against any injuries or damages to persons or property that may result from or are related to Buyer's or Buyer’s Representative’s entry upon the Property and any investigations or other ~~persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory~~ activities conducted thereon. Prior to ~~Seller. After~~ the ~~Effective Date, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~first entry on the Property, Buyer shall ~~be permitted to speak~~ deliver, and ~~meet with Tenant in connection with~~ shall cause Buyer’s ~~due diligence~~Representatives to deliver, certificates of insurance to Seller confirming compliance with the foregoing insurance requirements. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx ~~Money~~Money less the sum of $100.00 to be paid to Seller as independent consideration (the “Independent Consideration”), and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. If no such notice of termination is given by Buyer prior to the expiration of the Due Diligence Period, Buyer’s right of termination pursuant to this Section 6(b) will be deemed waived, Buyer shall be deemed to be satisfied with condition of the Property, the Xxxxxxx Money will be deemed non-refundable (except as otherwise provided in Section 6 with respect to title objections not cured by Seller, in Section 7 with respect to a casualty loss or condemnation prior to Closing, in Section 6(c) with respect to Seller’s failure to the deliver the required Tenant Estoppel Certificate, and in Section 9(a) with respect to Seller’s default) and the parties will proceed to Closing in accordance with this Agreement. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the ~~Second~~ expiration of the Due Diligence ~~Period~~ Period, Seller shall request ~~Estoppel Certificates~~ an estoppel certificate certified to the Buyer and Buyer’s lender (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a ~~Waiver~~ waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant substantially in the form attached hereto as Exhibit FF or, ~~or Buyer shall also accept~~if applicable, in ~~lieu of~~ the ~~form Exhibit F, any other estoppel certificate which is in the~~ Tenant’s standard approved form of estoppel ~~the tenant is obligated to deliver and has agreed to under its Lease~~ certificate (the “Tenant Estoppel Certificate”). ) and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificate when Seller receives the same. If Seller does not provide the Tenant Estoppel Certificate at least five (5) business days prior to Closing, the Closing shall be adjourned to the date that is five (5) business days after the date Seller delivers the Tenant Estoppel Certificate to Buyer. If Seller fails to provide the Tenant Estoppel Certificate within thirty (30) days from the original scheduled Closing Date, then Buyer may terminate this Agreement by delivering written notice thereof to Seller, upon which termination the Xxxxxxx Money (less the Independent Consideration) shall be refunded to Buyer, and Seller and Buyer shall be released from any and all rights, obligations and liability hereunder, except those which are specifically stated herein to survive any termination hereof. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (fd) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer (the “REA Estoppels”). To the extent any such reciprocal easement agreement provides for the delivery of an estoppel certificate, Buyer’s receipt of the REA Estoppels shall be a condition precedent to Buyer’s obligation to close the purchase of the Property and the failure of the applicable third parties to deliver any applicable estoppel certificate as to a reciprocal easement agreement shall afford Buyer the right to either extend the Closing Date for up to ten (10) days to afford Seller additional time to deliver the REA Estoppels to Buyer, or Buyer may terminate this Agreement by delivering written notice thereof to Seller no later than Closing Date, upon which termination the Xxxxxxx Money (less the Independent Consideration) shall be refunded to Buyer, and Seller and Buyer shall be released from any and all rights, obligations and liability hereunder, except those which are specifically stated herein to survive any termination hereof.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Finance Trust, Inc)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) ~~for the Property~~ from Escrow ~~Agent~~ Agent, a survey and a zoning report for each Property promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are submitted to Seller in writing and are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except for any Liens, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this ~~Agreement~~Agreement with respect to such Property, in which case the Xxxxxxx Money shall be returned to Buyer, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the ~~Effective Date~~commencement of the Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; ~~and~~ (Eviii) a copy of each tenant sales reports for the previous twenty four (24) calendar months; (ix) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any; (xiii) the geotechnical recommendations document that stipulates the daily traffic the asphalt installed is designed to withstand; and (xiv) a traffic study which indicates the anticipated daily average traffic through a facility (the “Due Diligence Materials”). Seller shall deliver any other documents relating to ~~the~~ each Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement as to any Property by giving written notice thereof to Seller prior to the expiration of the ~~First~~ applicable Due Diligence Period, in which event this Agreement shall become null and ~~void~~void with respect to such Property, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. Within two (~~d) Within five (5~~2) business days following the ~~Second~~ commencement of the Due Diligence ~~Period~~ Period, Seller shall request Estoppel Certificates certified to Buyer, the Approved Assignees and their Lender, successors and assigns (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a Waiver of Tenant’s right of first refusal~~, if any~~. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form required by the Lease and will use commercially reasonable efforts to obtain the form attached hereto as Exhibit FF for each Property (collectively, ~~or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (~~the “Tenant Estoppel Certificate”) and an estoppel certificate from Guarantor substantially in the form attached hereto as Exhibit G for each Property (the “Guarantor Estoppel Certificate”). , and Seller shall use commercially reasonable good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificates when Seller receives the same. (ed) Seller shall use commercially reasonable good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant ~~in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable~~ (the “SNDA”), which SNDA shall be consistent with the provisions of the Lease. (fe) Seller shall use commercially reasonable good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Acquisition Agreement (American Realty Capital Properties, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) ~~for the Property~~ from Escrow ~~Agent~~ Agent, a survey and a zoning report for each Property promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. The Permitted Exceptions shall in all events include (i) a lien for Real Property Taxes not then delinquent; (ii) matters affecting the condition of title to the Property created by or with the written consent of Buyer; (iii) zoning or permit conditions; and (iv) the Leases. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record (or cause the Title Company to insure against by payment, bond deposit or indemnity acceptable to Escrow Agent) prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any deeds of trust, mortgage, or other loan documents secured by the Property, or any judgments and federal and state tax liens (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller ~~agrees~~ shall have no obligation to cure any Title Matter objected to, except the Liens as aforesaid, and those Title Matters, if any, that Seller notifies Buyer as to which Seller elects to remove or cure ~~any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller shall,~~ within five (5) business days following receipt of Buyer’s ~~title~~ objections~~, if any, notify Buyer of any objections which Seller elects~~ ; Seller’s failure to deliver such written notice shall be deemed Seller’s election not to cure or remove such Title Matter. The parties agree that (i) except as expressly provided in this Agreement, Seller makes no express or ~~cure. Notwithstanding anything~~ implied warranties regarding the condition of title to the ~~contrary~~Property, (ii) Buyer shall rely on the Title Policy for protection against any title defects, and (iii) except as expressly provided in this Section 6(a), Seller ~~has~~ shall have no obligation to ~~take~~ cure any ~~steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title objections~~Title Matters. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the ~~Xxxxxxx Money~~ Exxxxxx Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to ~~Closing~~Closing (each, a “New Exception”), Buyer shall have until the earlier of (i) ~~ten~~ five (105) business days after the Buyer’s receipt of the updated, revised Title Commitment showing the ~~new title exception~~New Exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such ~~new title exception~~ New Exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, Buyer may, as ~~extended per this Section~~its sole remedy, ~~Buyer may~~ terminate this Agreement, in which case the ~~Xxxxxxx Money~~ Exxxxxx Money, together with all interest earned thereon, shall be returned to Buyer, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein; in addition, Seller shall reimburse Buyer up to $75,000.00 for all out of pocket costs and expenses incurred hereunder, but only if Seller caused such New Exception from and after the effective date of the Title Commitment and such New Exception has a material and adverse affect on the value of the Property. (ib) Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s ~~possession or reasonably obtainable by Seller or Seller’s counsel~~possession: (Ai) a complete copy of all leases and lease guaranties affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; (viii) the operating budget and any common area maintenance (CAM) reconciliations of the Property for the current year and following year, if available; (ix) the operating statements and delinquency reports of the Property for the twenty four (E24) calendar months immediately preceding the Effective Date or if a Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any; (xiii) Tenant financials for each Tenant, to the extent reasonably available to Seller and consistent with each such Tenant’s reporting requirements; (xiv) a complete copy of any feasibility study completed by the developer of the Property (Seller hereby advises Buyer that there are none); (xv) a copy of all primary and secondary state licenses or regulatory permits for the Property; and (xvi) a copy of any documents relating to a waiver of life safety code or physical plant requirements (collectively, the “Due Diligence Materials”). Seller shall use good faith efforts to deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent in Seller’s possession, within three (3) business days following ~~Seller’s receipt of~~ such request, ~~which shall be made by Buyer in writing~~provided that such documents are not privileged, confidential or proprietary, including, but not limited to: internal memoranda, analyses and business plans; financial information; and correspondence and other materials to or from Seller’s attorneys and potential third-party buyers. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other non-invasive investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor materially interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant~~ Tenants under the ~~Lease~~Leases; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with ~~Tenant~~ the Tenants in connection with Buyer’s due diligence, and Seller may, at its election, require that a Seller representative be present during such meetings. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the ~~Xxxxxxx~~ Exxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. Buyer agrees that, in making its physical and environmental inspections of the Property, including any due diligence activities at or about the Property, Buyer shall maintain (i) commercial general liability insurance on an occurrence basis, including contractual liability coverage (designating the indemnity provisions of this section above) and broad form property damage endorsement coverage, providing that Buyer is the named insured and that Seller and Seller’s property manager are additional insureds, and providing liability limits of not less than $1 000,000 combined single limit per occurrence with respect to bodily and personal injury, death and property damage and $2,000,000 in the aggregate, (ii) workmen’s compensation insurance at statutory limits, including employer’s liability insurance in an amount not less than $1,000,000 as required by law, and (iii) for any of Buyer’s consultants who conduct environmental inspections of the Property, professional liability insurance of not less than $1,000,000. Buyer shall provide Seller with Certificates of Insurance in form reasonably satisfactory to Seller which evidences such insurance prior to obtaining access to the Property. Such insurance shall contain a waiver of subrogation provision with respect to Seller. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall ~~request~~ deliver to Buyer completed drafts of each Tenant Estoppel ~~Certificates~~ Certificate (~~and simultaneously provide Purchaser with a copy of such request~~defined below) and Guarantor Estoppel Certificate (defined below) required to be requested by Seller hereunder, and request a ~~Waiver~~ waiver of each Tenant’s right of first refusal, right of first offer or other purchase option, if any, to purchase the Property (and simultaneously provide Buyer with a copy of such request). It shall be a condition of Closing that Seller shall have obtained an estoppel certificate ~~from Tenant~~ in the form attached hereto as Exhibit F, F or ~~Buyer shall also accept,~~ such other form as may be required by the Lease in ~~lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ question (the “Tenant Estoppel Certificate”). ) from each Tenant and an estoppel certificate in the form attached hereto as Exhibit G (the “Guarantor Estoppel Certificate”) from each Guarantor, and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of ~~the~~ each executed Tenant Estoppel Certificate and Guarantor Estoppel Certificate when Seller receives the same~~. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and~~ . Buyer’s ~~Lender, if applicable~~ failure to notify Seller of any objections to any executed estoppel certificate within four (4) business days of Buyer’s receipt of the ~~“SNDA”)~~same shall constitute Buyer’s acknowledgement that such estoppel certificate satisfies the requirements of this Section. ~~(f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.~~

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property or any judgments and federal and state tax liens (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing, including the payment of a sum of money in connection therewith. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except the Liens as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx ~~Money~~ Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ~~ten~~ five (105) business days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section,~~ Buyer may terminate this Agreement, in which case the Xxxxxxx ~~Money~~ Money, together with all interest earned thereon, shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) ~~Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents~~ The parties acknowledge and ~~materials pertaining to the Property~~ agree that to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel, Seller has provided the following documents and materials pertaining to the Property to Buyer: (Ai) a complete copy of all leases and lease guaranties affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; (viii) the operating budget and any common area maintenance (CAM) reconciliations of the Property for the current year and following year, if available; (ix) the operating statements and delinquency reports of the Property for the twenty four (E24) calendar months immediately preceding the Effective Date or if a Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any; (xiii) Tenant financials for each Tenant, to the extent reasonably available to Seller and consistent with such Tenant’s reporting requirements; (xiv) Guarantor financials for each Guarantor, to the extent reasonably available to Seller and consistent with each such Guarantor’s reporting requirements; (xv) a complete copy of any feasibility study completed by the developer of the Property; (xvi) a copy of all primary and secondary state licenses or regulatory permits for the Property, if any; and (xvii) a copy of any documents relating to a waiver of life safety code or physical plant requirements, if any (collectively, the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s or its affiliates’ or agents’ possession or reasonably obtainable by Seller, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor materially interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant~~ Tenants under the ~~Lease~~Leases; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, ~~and~~ upon ~~reasonable~~ not less than seventy-two (72) hours prior written notice to ~~Seller~~ Seller, and ~~after obtaining Seller’s advance written approval in each instance~~subject to the consent of the applicable tenant(s), Buyer shall be permitted to speak and meet with ~~Tenant~~ the Tenants in connection with Buyer’s due diligence. Seller, at Seller’s option, may elect to have a representative present during any tenant interviews conducted by Buyer. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel ~~certificate~~ certificates from each Tenant and Guarantor, certified to Buyer, its lender and their successors and assigns, in substantially the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (the “~~Tenant~~ Estoppel Certificate”). Within five (5) business days following the Effective Date, Seller shall ~~use good faith efforts~~ deliver to ~~obtain~~ Buyer, for Buyer’s review and approval, draft Estoppel Certificates for the ~~same~~Leases. Seller shall promptly deliver to Buyer ~~photocopies~~ a photocopy or pdf ~~files~~ file of the executed ~~Tenant~~ Estoppel Certificate when Seller receives the same. Within two (2) business days following the Effective Date, Seller shall request a waiver of any right of first refusal, right of first offer or other purchase option, if any, that any party may have to purchase the Property (and simultaneously provide Buyer with copies of such requests). (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from each Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (~~the~~ each such agreement, an “SNDA”). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements affecting the Property, as may be reasonably requested by Buyer. (f) On or before the expiration of the Due Diligence Period, Buyer shall notify Seller in writing if Buyer elects not to assume at Closing any of the Contracts (defined below). If Buyer does not notify Seller prior to the expiration of the Due Diligence Period that it elects not to assume any of the Contracts, Buyer shall be deemed to have accepted and agreed to assume all of the Contracts. If Buyer exercises its right not to assume one or more Contracts at Closing, Seller shall give notice of termination of such disapproved Contract(s); provided, if by the terms of the disapproved Contract Seller has no right to terminate same on or prior to Closing, Buyer shall be required at Closing to assume all obligations thereunder until the effective date of the termination; provided, further, if any fee or other compensation is due under any disapproved Contract as a result of such termination, whether payable before or after the Closing Date, Seller shall remain obligated to pay the contractor or to reimburse Buyer for the payment of the termination charge. Notwithstanding the foregoing, Seller shall, without notice from Buyer, terminate any and all property management and listing agreements prior to Closing at Seller’s sole cost and expense. (g) Seller shall cause its property manager to complete the Property Manager Questionnaire in the form attached hereto as Exhibit L and return the same to Buyer within ten (10) days following the Effective Date.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property or any judgments and federal and state tax liens (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing, including the payment of a sum of money in connection therewith. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except the Liens as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx ~~Money~~ Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section,~~ Buyer may terminate this Agreement, in which case the Xxxxxxx ~~Money~~ Money, together with all interest earned thereon, shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases and lease guaranties affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including, without limitation, any as-built surveys obtained or delivered to the Tenant of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings for improvements ~~to be~~ located on the Property; (Eiv) a copy of the Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of~~ occupancy and zoning report for the Property ~~for its intended purpose~~ and ~~such equivalent evidence~~ of ~~lawful possession is not unreasonably conditioned,~~ all governmental permits and ~~zoning reports for the Property~~approvals; (Bvi) a copy of all ~~governmental permits/approvals; (C) a copy of all~~ environmental, engineering and physical condition reports for the Property; (Dvii) the operating budget and any CAM reconciliations of the Property for the current year and following year, if available; (viii) the operating statements and delinquency reports of the Property for the twenty-four (24) month period immediately preceding the Effective Date; (ix) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years; ~~and~~ (Ex) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural or roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any; (xiii) updated set of Tenant’s financials to be provided through the Closing Date to extent reasonably available to Seller and consistent with Tenant’s reporting requirements; (xiv) complete copy of any feasibility study completed by the developer; (xv) a copy of all primary and secondary state licenses or regulatory permits for the Property; and (xvi) a copy of any documents relating to a waiver of life safety code or physical plant requirements (collectively, the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property ~~nor interfere with the progress of construction on the Property~~ or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. Within two (~~d) Within five (5~~2) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request ~~Estoppel Certificates~~ a waiver of any first right of refusal, right of first offer or other purchase right that any party may have to purchase the Property (and simultaneously provide ~~Purchaser~~ Buyer with ~~a copy~~ copies of such ~~request~~requests). Within two (2) ~~and~~ business days following the Effective Date, Seller shall deliver to Buyer a ~~Waiver~~ draft of ~~Tenant’s right of first refusal, if any~~the completed Estoppel Certificate (defined below). It shall be a condition of Closing that Seller shall have obtained an a tenant estoppel certificate ~~from Tenant~~ certified to Buyer, its lender and their successors and assigns in the form attached hereto as Exhibit F, or ~~Buyer shall also accept~~to the extent the Lease explicitly requires a particular form, ~~in lieu of the form Exhibit F, any other estoppel certificate which is~~ in the form ~~of estoppel~~ required under the ~~tenant is obligated to deliver and has agreed to under its~~ Lease (the “~~Tenant~~ Estoppel Certificate”). Seller shall ~~use good faith efforts to obtain the same. Seller shall~~ promptly deliver to Buyer ~~photocopies~~ a photocopy or pdf ~~files~~ file of the executed ~~Tenant~~ Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (fd) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements affecting the Property, as may be reasonably requested by Buyer. (e) On or before the expiration of the Due Diligence Period, Buyer shall notify Seller in writing if Buyer elects not to assume at Closing any of the Contracts (defined below). If Buyer does not notify Seller prior to the expiration of the Due Diligence Period that it elects not to assume any of the Contracts, Buyer shall be deemed to have accepted and agreed to assume all of the Contracts. If Buyer exercises its right not to assume one or more Contracts at Closing, Seller shall give notice of termination of such disapproved Contract(s); provided, if by the terms of the disapproved Contract Seller has no right to terminate same on or prior to Closing, Buyer shall be required at Closing to assume all obligations thereunder until the effective date of the termination; provided, further, if any fee or other compensation is due under any disapproved Contract as a result of such termination, whether payable before or after the Closing Date, Seller shall remain obligated to pay the contractor or to reimburse Buyer for the payment of the termination charge. Notwithstanding the foregoing, Seller shall, without notice from Buyer, terminate any and all property management and listing agreements prior to Closing at Seller’s sole cost and expense. (f) Seller shall cause its property manager to complete the Property Manager Questionnaire in the form attached hereto as Exhibit L and return the same to Buyer within ten (10) days following the Effective Date.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien (but excluding any mechanic lien related to either Buyer’s due diligence or any Tenant’s construction or renovations) or any monetary lien, or any deeds of trust, mortgage, or other loan documents created by Seller and secured by the ~~Property,~~ Property (collectively, “Liens”). Seller shall be required to cure or remove all such Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent) (but excluding any mechanic lien related to either Buyer’s due diligence or any Tenant’s renovations). Seller ~~agrees~~ shall have no obligation to ~~remove or~~ cure any ~~objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing.~~ Title Matter objected to, except as aforesaid, provided Seller ~~shall, within five (5) days following receipt of Buyer’s title objections, if any, notify~~ notifies Buyer of any objections which Seller elects not to remove or ~~cure~~cure within five (5) business days following receipt of Buyer’s objections. ~~Notwithstanding anything~~ Unless Seller shall have provided written notice with such five (5) business day period of its intent to ~~the contrary~~cure such objected to matter, Seller ~~has no obligation~~ shall be deemed to ~~take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding~~ have refused to remove any such ~~title objections~~objected to matter. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after ~~receipt of~~ Seller’s notice, or deemed notice, that it refuses to cure any such objected to matter, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any newly created matter ~~not revealed in the Title Commitment~~ is ~~discovered by Buyer or by the Escrow Agent and is~~ subsequently added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to ~~Buyer,~~ Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s possession or ~~reasonably obtainable by Seller or Seller’s counsel~~control: (Ai) a complete copy of ~~all leases affecting~~ the ~~Property and~~ Leases, including all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to Tenants of the Property; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance ~~commitments~~ policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; ~~and~~ (Eviii) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (ix) all of Seller’s service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (x) a copy of all warranties in favor of Seller relating to the improvements constructed on the Property, including without limitation any structural slab and/or roof warranties; and (xi) a written inventory of all items of personal property owned by Seller to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession or control, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the ~~Property, conducting soil tests,~~ Property and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the ~~Property~~Property (but expressly excluding any invasive testing or borings); provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all costs, liabilities, claims or damages (whether to persons or property) to the extent resulting from the activities of Buyer on the Property, ~~and Buyer shall promptly repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage,~~ which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement with respect to any Property by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and ~~void~~void as to such Property, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates certified to the following: “AR Capital, LLC, the Approved Assignee listed on Exhibit A1 for the respective Property and their lender, successors and assigns” (as shown on Exhibit A1) and their Lender, successors and assigns (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a Waiver of Tenant’s right of first refusal~~, if any~~. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from ~~Tenant~~ O’Reilly and Advance in the applicable form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (~~the~~ each a “Tenant Estoppel Certificate”). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificates when Seller receives the same. . If the Tenant Estoppel Certificate actually signed by Advance does not confirm Advance’s receipt of all certifications and/or documentation required under Section 10(b) of the Advance Auto Lease (eor Section 2(b) of the Construction Provisions as referenced therein) in connection with the original construction of the Improvements, the Seller will request a letter from Advance in a form reasonably acceptable to Buyer confirming Advance’s receipt of all such items required under the Advance Auto Lease and Seller shall use good faith efforts to obtain ~~a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (~~the ~~“SNDA”)~~same. (fd) Buyer acknowledges that the Due Diligence Materials are being provided to Buyer solely as a courtesy, and that Seller ~~shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements~~ makes no representations or warranties about the subject matter thereof except as ~~may be reasonably requested by Buyer~~otherwise expressly made herein.

Appears in 1 contract

Samples: Assignment and Assumption of Purchase Agreement (Cole Credit Property Trust V, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall have the right to order a title insurance commitment (the “Title Commitment”) from Title Agent, a survey and a zoning report for the ~~Property from Escrow Agent promptly after the Effective Date~~Property. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to ~~Escrow Agent)~~the Title Agent and the Title Company) on or prior to Closing. Additionally, Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except the Liens and/or except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer in writing of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any ~~objections~~objections or advises Buyer that it is unable to do so, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money shall be immediately returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the ~~Escrow~~ Title Agent or Title Company and is added to the Title Commitment by the ~~Escrow~~ Title Agent or the Title Company at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) three (3) business days prior to the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to ~~Buyer,~~ Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by ~~Seller or~~ Seller~~’s counsel~~: (Ai) a complete copy of the Lease and all other leases affecting the Property (unless the same have previously been provided to Buyer) and all amendments thereto and of all material correspondence relating thereto and all related lease guaranties; (Bii) a final copy of all surveys and site plans of the Property; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property, including all supporting documentation related to Schedule B items identified in such commitments and policies; (Fv) ~~all contracts and insurance policies which affect~~ a copy of the zoning report for the Property. ; (iivi) ~~Within five~~ a copy of Seller’s Phase 1 and all final copies of environmental, engineering and physical condition reports for the Property; and (5vii) ~~business days following the commencement~~ a copy of all insurance certificates of Tenant; a copy of the ~~Second~~ current real property tax information (collectively, the “Due Diligence Materials”). During the Due Diligence Period, Seller ~~shall provide to Buyer copies of the following~~ will deliver any other documents ~~and materials pertaining~~ relating to the Property reasonably requested by Buyer, to the extent within Seller’s possession or reasonably obtainable by ~~Seller or~~ Seller~~’s counsel: (A) a copy of the certificate of occupancy~~, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; and (E) all service contracts and insurance policies or insurance certificates which affect the Property (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer~~ The foregoing indemnity shall ~~deliver~~ not, however, be construed to include an indemnification of Seller ~~promptly all Final Reports produced~~ against (a) a pre-existing environmental conditions or ~~procured by Buyer related to~~ other pre-existing conditions that may be discovered on the ~~Property~~Property in the course of such inspection, tests or studies, or (ii) any claims arising from an act or omission of Seller. ~~Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the ~~Property~~Property and the Improvements. ~~Before~~ Notwithstanding the foregoing, Buyer ~~may enter~~ shall not have the right to conduct an environmental Phase II examination without the express prior written consent of Seller, such consent not to be unreasonably withheld, conditioned or ~~inspect~~ delayed. During the time period in which Buyer or Buyer's agents or contractors are accessing the Property, ~~Buyer~~ such contractors or agents shall ~~provide Seller~~ maintain or cause to be maintained, a policy of comprehensive general public liability insurance with a ~~certificate~~ combined single limit of ~~insurance naming Seller (~~not less than $1,000,000 per occurrence for bodily injury and property damage, insuring Buyer and Seller, as additional insureds, against any injuries or damages to persons or property that may result from or are related to Buyer's or Buyer’s agent's or contractor's entry upon the Property and any investigations or other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligenceactivities conducted thereon. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall immediately receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. If Buyer fails to provide such notice to Seller, Buyer will be deemed to have elected to proceed with the Closing. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request Estoppel Certificates certified to the Buyer and Buyer’s lender, successors and assigns (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a ~~Waiver~~ waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (the “Tenant Estoppel Certificate”). ) and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificate when Seller receives the same. (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Tenant Buyer and Buyer’s Lender, if applicable (the “SNDA”). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (Cole Credit Property Trust V, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts and cost prior to Closing. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the ~~Xxxxxxx Money~~ Deposit shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the ~~Xxxxxxx Money~~ Deposit shall be returned to Buyer, and in the event such Objection was caused by Seller, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder up to $15,000.00 and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases and lease guaranties, including the Lease and the Guaranty, affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports for the Property (D) a copy of all architectural plans and specifications and construction drawings for improvements to be located on the Property; (E) a copy of Seller’s title insurance commitments relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Periodenvironmental, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; and (Diii) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership (collectively, the “Due Diligence Materials”). Seller shall use commercially reasonable efforts to obtain the following documents and materials pertaining to the Property and deliver same to Buyer at least ten (10) days prior to the expiration of the Due Diligence Period: (i) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (ii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements located on the Property; (iii) a copy of Seller’s title insurance commitments and policies relating to the Property; (iv) a copy of the certificate of occupancy and zoning reports for the Property; and of all governmental permits/approvals; (Ev) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (vi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (vii) a written inventory of all items of personal property to be conveyed to Buyer, if any; (viii) Tenant financials, to the extent reasonably available to Seller and consistent with each such Tenant’s reporting requirements; (ix) a complete copy of any feasibility study completed by the hospital operator; (x) a copy of all primary and secondary state licenses or regulatory permits for the Property; (xi) a copy of any documents relating to a waiver of life safety code or physical plant requirements; (xii) a copy of any third-party accreditation (i.e., Joint Commission); and (xiii) a list of physician investors in the Tenant, including (A) name of corresponding group/practice, (B) age of physician, (C) projected volume of their referrals to the hospital, (D) date of initial investment and (E) historical and current description of physician investment (collectively, the “Additional Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the ~~Xxxxxxx Money~~Deposit, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. Within two (~~d) Within five (5~~2) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request ~~Estoppel Certificates (~~estoppel certificates certified to Buyer, the Approved Assignee and ~~simultaneously provide Purchaser with a copy of such request)~~ their Lender and successors and assigns and a ~~Waiver~~ waiver of Tenant’s right of first ~~refusal, if any~~refusal to purchase the Property under Section 20.13 of the Lease (and simultaneously provide Buyer with copies of such requests). Seller’s request of Tenant’s waiver of its right of first refusal to purchase the Property shall comply with the notice of sale requirements set forth under Section 20.13 of the Lease. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (the “Tenant Estoppel Certificate”) and an estoppel certificate from Guarantor in the form attached hereto as Exhibit G (the “Guarantor Estoppel Certificate”). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificates when Seller receives the same. (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). Buyer shall provide to Seller the form of the SNDA to present to Tenant which contains the form and substance reasonably acceptable to it and its Lender, if applicable, within a reasonable time for Seller to seek to obtain the execution of same prior to the Closing Date. (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer. Should Buyer request Seller to obtain any such estoppel certificates, it shall provide same to Seller within a reasonable time for Seller to attempt to obtain same prior to the Closing Date.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)

Examination of Property. ~~Seller~~ Sellers and Buyer hereby agree as follows: (a) With respect to each of the Texas Property and the Colorado Property, Buyer shall order a title commitment (~~the~~ each, a “Title Commitment”; and collectively, the “Title Commitments”) ~~for the Property~~ from Escrow Agent along with legible copies of all documents referenced in each Title Commitment, an ALTA/NSPS survey including any Table A required by Buyer, and a zoning report promptly after the ~~Effective Date~~date hereof (collectively, the “Title Evidence”). Buyer has submitted to Sellers and Escrow Agent a written notice specifying any defects in or objections to the Title Evidence (the “Objection Letter”) dated September 16, 2021 (collectively, the “Objections”; each, an “Objection”), and including copies of the Title Evidence received by Buyer. All matters shown in the Title ~~Commitment~~ Evidence (“Title Matters”) with respect to which Buyer fails timely to ~~object prior~~ object, or which objection Buyer waives, pursuant to ~~the expiration~~ Section 6(b) below, and rights of ~~the First Due Diligence Period~~ Tenant, as tenant only, shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include (i) any mechanic’s ~~lien or any~~ lien, monetary lien, ~~or any~~ judgment lien, deeds of trust, mortgage, or other loan documents secured by ~~the~~ any Property, or (~~collectively~~ii) any delinquent taxes and assessments (collectively referred to hereinafter as, “Liens”). ~~Seller~~ Sellers shall be required to cure or remove all Liens (by payment, bond deposit or indemnity reasonably acceptable to Escrow Agent), at no cost to Buyer. As provided in Section 10(k) below, each Seller ~~agrees~~ shall deliver the Title Affidavit (as hereinafter defined) at Closing addressing all standard exceptions in the Title Evidence that may customarily be cured by the delivery of the Title Affidavit. (b) Notwithstanding anything to ~~remove or~~ the contrary contained herein, Sellers shall not be obligated to cure any ~~objections of Buyer~~ encumbrances on each Property which are ~~of a nature that are capable of being cured with reasonable efforts prior to Closing~~not Liens. ~~Seller shall,~~ Sellers shall notify Buyer in writing within five (5) business days ~~following receipt~~ after the Effective Date, and shall send a copy of ~~Buyer’s title objections~~same to Escrow Agent, as to whether Sellers will attempt to cure any of the Objections (“Seller Title Notice”) and, if ~~any~~Sellers elect to cure any Objection as expressly set forth in the Seller Title Notice (the “Seller Approved Objections”), ~~notify Buyer of any objections which Seller elects not~~ Sellers shall do so at their own expense, prior to ~~remove~~ or ~~cure. Notwithstanding anything to~~ on the ~~contrary, Seller has~~ Closing Date; provided Sellers shall have no obligation to ~~take~~ cure any ~~steps~~Objection, ~~bring any action, or incur any costs, effort or expenses whatsoever regarding any such title objections. In the event that Seller refuses~~ regardless of whether Sellers elect to attempt to cure same; and further provided Sellers agree to remove or cure at or prior to the Closing any ~~objections~~Objections that constitute Liens. To the extent Sellers shall fail to deliver the Seller Title Notice to Buyer within the time required therefor, or shall elect in its Seller Title Notice not to cure any particular title Objection by Closing, then Buyer ~~shall have the right to terminate this Agreement upon~~ may elect, by written notice to ~~Seller~~ Sellers given within three (3) business days after either (x) delivery of the Seller Title Notice, or (y) the expiration of the five (5) ~~days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money shall be returned~~ business day period for Sellers to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection respond to any ~~such new title exception~~ Objection, either to (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, as extended per this Section, Buyer may a) terminate this Agreement, in which case the ~~Xxxxxxx~~ Exxxxxx Money shall be returned to Buyer, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. , or (ib) ~~Within~~ waive its objections hereunder and proceed with the transaction pursuant to the remaining terms and conditions of this Agreement. Notwithstanding anything to the contrary contained herein, if, by the Closing Date, Seller is unable to eliminate any Seller Approved Objections or any of the Liens, Sellers may (in their sole discretion), from time to time, upon at least one (1) business day prior notice to Buyer adjourn the scheduled Closing Date for a period not to exceed thirty (30) days in the aggregate (the “Title Cure Period”), in order to attempt to eliminate such Seller Approved Objections or Liens, as the case may be. If Sellers do not remove or cure such Seller Approved Objections or Liens by the Closing Date, or elects to adjourn the scheduled Closing Date in accordance with the provisions of this Section 6(b) and does not remove or cure such Seller Approved Objections or Liens prior to the expiration of the Title Cure Period, Buyer may terminate this Agreement, in which event, the Exxxxxx Money shall be returned to Buyer, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. In addition to the foregoing, if any subsequent title report, update to any Title Commitment, or rundown obtained by Buyer prior to Closing discloses any title matters that were not disclosed in the Title Evidence, then Buyer shall have five (5) days after receipt of such title report, update or rundown to object to same, and such title objections shall be deemed Objections hereunder. Sellers shall deliver Seller’s Title Notice with respect to such additional Objections within three (3) business days ~~following~~ after receipt of notice thereof, and otherwise, such additional objections shall be governed by the ~~Effective Date, Seller shall provide~~ provisions of Section 6(a) above and this Section 6(b). (c) Sellers have provided to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within ~~Seller’s possession or reasonably obtainable by Seller or Seller’s counsel~~Sellers’ possession, and Buyer hereby acknowledges receipt of same: (Ai) ~~a complete copy~~ copies of ~~all leases affecting the Property and all amendments thereto ; (B) a copy of all~~ surveys and site plans of ~~the~~ each Property, including without limitation any as-built survey obtained in connection with each Property’s construction; (Cii) ~~a copy~~ copies of ~~all environmental reports for the Property (D) a copy of all~~ architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on ~~the~~ each Property; (Eiii) ~~a copy~~ copies of ~~Seller’s~~ Sellers’ title insurance commitments and policies relating to each Property (the ~~Property~~“Existing Title Commitments and Policies”); (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Aiv) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports occupancy for the Colorado Property; (Bv) ~~a copy~~ copies of ~~all governmental permits/approvals; (C) a copy of all engineering and physical~~ environmental condition reports for ~~the~~ each Property; (Dvi) copies of ~~the~~ each Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years; and (Evii) ~~all service contracts and insurance policies or insurance certificates which affect~~ the ~~Property~~ financial statements for Sellers (the “Due Diligence Materials”). ~~Seller~~ Sellers agree to deliver the Due Diligence Materials for the convenience of Buyer and makes no representation or warranty as to the truth, accuracy or completeness thereof; and Buyer acknowledges it shall rely exclusively on its own independent investigation and evaluation of every aspect of the Property and not on any materials supplied by Sellers. Sellers shall deliver any other documents relating to ~~the~~ each Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Sellers’ possession or reasonably obtainable by Sellers or Sellers’ counsel, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this ~~Agreement~~Agreement and subject to the provisions of this clause (c), Buyer, its lender, and their respective agents and designees, shall have the right to enter ~~the~~ each Property during normal business hours for the purposes of inspecting ~~the~~ each Property, ~~conducting soil tests, and~~ making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of ~~the~~ each Property; provided, however, that (1) with respect to any access to each Property by Buyer, Buyer shall, prior to, and as a condition to any entry on each Property by Buyer or its agents for the purposes set forth in this Section 6(c), deliver to Sellers a certificate of insurance evidencing liability insurance from an insurer reasonably acceptable to Seller, which insurance shall be in an amount of not less than $2,000,000 per occurrence and shall name Sellers as an additional insured, (2) such activities by or on behalf of Buyer on ~~the~~ each Property shall not damage ~~the~~ each Property nor interfere with ~~the progress of~~ any construction on ~~the Property~~ each Property, or the conduct of business by ~~Tenant~~ Sellers, and (3) shall be limited to non-intrusive testing on each Property (i.e. no drilling or boring), subject to Section 6(e). (d) Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice (a “Due Diligence Termination Notice”) thereof to Sellers and the Escrow Agent on or prior to the expiration of the Due Diligence Period, time being of the essence. Upon such termination, this Agreement shall become null and void, the Exxxxxx Money, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If Buyer fails to timely deliver the Due Diligence Termination Notice to Sellers, then Buyer's right to terminate this Agreement under this Section 6(d) shall be deemed to have been waived by Buyer, the Exxxxxx Money shall be non-refundable, except as otherwise expressly set forth in this Agreement, and the parties shall proceed with the transaction pursuant to the remaining terms and conditions of this Agreement. (e) If Buyer’s Phase I investigation recommends that a Phase II investigation be performed, then intrusive testing on each Property shall be permitted subject to the applicable Seller’s reasonable approval as to the scope of work and the dates and times such work is to be performed and a plan depicting the proposed areas of sampling. As a condition to such Seller’s approval, Buyer shall have waived in writing all other diligence and its right to terminate this Agreement pursuant to Section 6(d). Upon receipt of such waiver and the required sampling details, such Seller shall respond within three (3) business days. If such Seller does not respond, Buyer shall send a second request, noting the deemed approval provision of this Section 6(e), and if such Seller fails to respond within two (2) business days, such Seller shall be deemed to have approved the proposed sampling. Buyer shall have forty-five (45) days in which to complete such Phase II investigation following Seller’s approval or deemed approval (the “Phase II Period”). If such Phase II investigation reveals contamination in violation of applicable laws that affects the value of the Property in any material respect, as reasonably determined by Buyer, or the use thereof in accordance with the Lease; , Buyer or Seller may terminate this Agreement upon written notice to such Seller by not later than the end of the Phase II Period, time being of the essence. Upon such termination, this Agreement shall become null and ~~provided further~~void, ~~however~~the Exxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, ~~that~~ except as otherwise expressly set forth herein. If Buyer fails to timely deliver such termination notice to such Seller, then Buyer’s right to terminate this Agreement under this Section 6(e) shall be deemed to have been waived by Buyer, the Exxxxxx Money shall be non-refundable, except as otherwise expressly set forth in this Agreement, and the parties shall proceed with the transaction pursuant to the remaining terms and conditions of this Agreement and Tenant shall promptly correct any violation of laws revealed by the Phase II investigation in accordance with the Lease (and Buyer may, as a condition to waiving its right to terminate pursuant to this Section 6(e) require modifications to the Lease to address anything revealed in such Phase II investigation). Buyer shall ~~indemnify~~ indemnify, protect, defend, and hold Seller and its officers, employees, directors, members, managers (collectively, the “Seller Indemnified Parties”) harmless from and against any and all ~~claims~~ liabilities, demands, actions, causes of action, suits, claims, losses, liens, damages, costs, and expense (including, without limitation, reasonable attorneys’ fees and court costs and litigation expenses) actually incurred, of any kind or ~~damages~~ nature, made, brought, sought, suffered, or incurred by any of the Seller Indemnified Parties to the extent resulting from the activities of Buyer (including activities of any of Buyer’s employees, consultants, contractors, or other agents) in conducting any of the inspections on ~~the~~ each Property, including, without limitation, mechanics’ liens, damage to each Property, or injury to persons or property of third parties resulting from such activities, and Buyer shall ~~promptly~~ repair any and all damage ~~caused, in whole or in part,~~ to the extent caused by Buyer and return ~~the~~ each Property to its condition immediately prior to such damage, which ~~obligation~~ indemnity and repair obligations shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section, Seller~~ Sellers shall reasonably cooperate with the efforts of Buyer and ~~the~~ Buyer’s representatives to inspect ~~the~~ each Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site ~~visits~~visits is Kxx Xxxxxxxx (ph.: 900-000-0000, e-mail: kxxxxxxxx@xxxxxxxxxxx.xxx) . Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before ~~entering the~~ scheduling a site visit at each Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on ~~the Property~~each Property or any other access by Buyer. Buyer shall ~~have~~ provide to Seller, only upon Seller’s request therefor, a copy of any written third-party inspection, test, report, survey, or summary obtained by Buyer during the ~~unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the First~~ Due Diligence Period. Except to the extent required of Buyer by any applicable statute, ~~in which event this Agreement shall become null and void~~law, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit Fregulation, or governmental authority, neither Buyer nor its employees, contractors, consultants, or other agents shall ~~also accept~~report the results of any inspections or investigations to any governmental or quasi-governmental authority under any circumstances without obtaining Seller’s express written consent, which consent may be withheld in ~~lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver~~ Seller’s sole and has agreed to under its Lease (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”)absolute discretion. (f) ~~Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably~~ Upon any termination of this Agreement for any reason, if requested by ~~Buyer~~Sellers, Buyer shall promptly return to Seller or destroy all Due Diligence Materials, which obligation shall survive such termination.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Lincoln Educational Services Corp)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) for ~~the~~ each Property from Escrow Agent promptly after the ~~Effective Date~~date hereof. All matters shown in the Title Commitment with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller ~~shall~~shall have no obligation to cure any title matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure for each Property within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement with respect to such Property upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; ~~and~~ (Eviii) a copy of each tenant sales reports for the previous twenty four (24) calendar months; (ix) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to ~~the~~ each Property reasonably requested by Buyer within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) ~~business~~ days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request Estoppel Certificates certified to Buyer, the Approved Assignees and their Lender, successors and assigns (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F for each Property (the “Tenant Estoppel Certificate”). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificates when Seller receives the same. (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Properties, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any deeds of trust, mortgage, or other loan documents secured by the Property, other than the Loan Documents (defined below), or any judgments and federal and state tax liens (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing, including the payment of a sum of money in connection therewith up to an amount of $100,000.00. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except the Liens as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx ~~Money~~ Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section,~~ Buyer may terminate this Agreement, in which case the Xxxxxxx ~~Money~~ Money, together with all interest earned thereon, shall be returned to Buyer, and in the event such Objection was created, consented to or affirmatively permitted by Seller after the Effective Date, Seller shall reimburse Buyer for all reasonable out of pocket costs and expenses incurred hereunder up to $25,000.00, and upon such termination neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) business days following the Effective Date, Seller shall provide to ~~Buyer~~ Buyer, to the extent not already delivered, copies of the following documents and materials pertaining to the Property to the extent within Seller’s or its affiliates’ or agents’ possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases and lease guaranties affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the ~~Property; (B) a copy~~ Property and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) the operating budget and any CAM reconciliations of the Property for the current year and following year, if available; (viii) the operating statements of the Property from the date upon which the Tenants took occupancy up until the Effective Date; (ix) copies of the Property’s real estate tax bills for the current and prior tax ~~year~~years; ~~and~~ (Ex) all service contracts and insurance policies ~~or insurance certificates~~ which affect the Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (xii) Tenant financials for each Tenant, to the extent reasonably available to Seller and consistent with such Tenant’s reporting requirements; and (xiii) any existing property management agreement relating to the day to day management and operations of the Property (collectively, the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s or its affiliates’ or agents’ possession or reasonably obtainable by Seller, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor materially interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant~~ Tenants under the ~~Lease~~Leases; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with ~~Tenant~~ the Tenants in connection with Buyer’s due ~~diligence~~diligence upon two (2) days prior written notice. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. From and after the expiration of the Due Diligence Period, Seller shall be entitled to payment of the Xxxxxxx Money pursuant to the terms of Section 9(a) hereof. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel ~~certificate~~ certificates from each Tenant and Guarantor, certified to Buyer, its lender and their successors and assigns, in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (the “~~Tenant~~ Estoppel Certificate”). Within two (2) business days following the Effective Date, Seller shall ~~use good faith efforts~~ deliver to ~~obtain~~ Buyer, for Buyer’s review and approval, draft Estoppel Certificates for the ~~same~~Leases. Seller shall promptly deliver to Buyer ~~photocopies~~ a photocopy or pdf ~~files~~ file of the executed ~~Tenant~~ Estoppel Certificate when Seller receives the same. Within two (2) business days following the Effective Date, Seller shall request a waiver of any right of first refusal, right of first offer or other purchase option, if any, that any party may have to purchase the Property (and simultaneously provide Buyer with copies of such requests). (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from each Tenant in form and substance reasonably acceptable to Buyer and ~~Buyer’s Lender~~its lender, if applicable (~~the~~ each such agreement, an “SNDA”). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements affecting the Property, as may be reasonably requested by Buyer. (f) On or before the expiration of the Due Diligence Period, Buyer shall notify Seller in writing if Buyer elects not to assume at Closing any of the Contracts (defined below). If Buyer does not notify Seller prior to the expiration of the Due Diligence Period that it elects not to assume any of the Contracts, Buyer shall be deemed to have accepted and agreed to assume all of the Contracts. If Buyer exercises its right not to assume one or more Contracts at Closing, Seller shall give notice of termination of such disapproved Contract(s); provided, if by the terms of the disapproved Contract Seller has no right to terminate same on or prior to Closing, Buyer shall be required at Closing to assume all obligations thereunder until the effective date of the termination; provided, further, if any fee or other compensation is due under any disapproved Contract as a result of such termination, whether payable before or after the Closing Date, Seller shall remain obligated to pay the contractor or to reimburse Buyer for the payment of the termination charge. Notwithstanding the foregoing, Seller shall, without notice from Buyer, terminate any and all property management and listing agreements prior to Closing at Seller’s sole cost and expense. (g) Seller shall cause its property manager to complete the Property Manager Questionnaire in the form attached hereto as Exhibit L and return the same to Buyer within ten (10) days following the Effective Date.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) for ~~the~~ each Property from Escrow Agent promptly after the ~~Effective Date~~date hereof. All matters shown in the Title Commitment with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period and matters which have been objected to by Buyer but not cured by Seller if Buyer proceeds to Closing shall be deemed “Permitted Exceptions”~~. However~~; provided, however, Permitted Exceptions shall not include and Seller shall be obligated to cure or remove any mechanic’s lien or any monetary lien, except for taxes and special assessments not yet due and payable, or any deeds of trust, mortgage, or other loan documents secured by the Property~~, (collectively, “Liens”)~~. Seller shall ~~be required~~ have no obligation to cure ~~or remove all Liens (by payment~~any title matter objected to, ~~bond deposit or indemnity acceptable to Escrow Agent).~~ except as aforesaid, provided Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller shall, within five (5) days following receipt of Buyer’s title objections, if any, notify notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure for each Property within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement with respect to such Property upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the ~~Xxxxxxx~~ Exxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this ~~Agreement~~Agreement as Buyer's sole and exclusive remedy, in which case the ~~Xxxxxxx~~ Exxxxxx Money shall be returned to Buyer, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (i) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (B) a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports for the Property (D) a copy of all architectural plans and specifications and construction drawings and contracts for improvements to be located on the Property; (E) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) ~~business~~ days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; ~~and~~ (E) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property; (F) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (G) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer to the extent within Seller's possession or reasonably obtainable by Seller or Seller's counsel within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement as to any Property by giving written notice thereof to Seller prior to the expiration of the First Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the ~~Xxxxxxx~~ Exxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence ~~materials~~ Materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or ~~correction~~correction as to any Property, and such matters ~~shall be~~ are not completed or corrected ~~by Seller unless~~ within thirty (30) days following written notice from Buyer to Seller, then Buyer may terminate this Agreement by giving notice thereof to Seller, in which event this Agreement shall become null and ~~Tenant determine that it would be commercially unreasonable~~ void as to ~~complete or correct any~~ such ~~matters~~Property, Buyer shall receive a refund of the Exxxxxx Money, Seller shall pay to Buyer all of the out-of-pocket costs and expenses incurred by Buyer in connection with this Agreement in an amount not to exceed $15,000.00 per Property, and all rights, liabilities and obligations of the parties under this Agreement shall expire with respect to such Property, except as otherwise expressly set forth herein. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached ~~hereto as Exhibit F, or Buyer shall also accept, in lieu of~~ to the ~~form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its~~ respective Lease for each Property (the “Tenant Estoppel Certificate”). ) and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel ~~Certificate~~ Certificates when Seller receives the same. (e) Seller shall ~~use good faith efforts to~~ obtain a subordination, non-disturbance and attornment agreement from Tenant in form ~~and substance reasonably acceptable~~ attached to ~~Buyer and Buyer’s Lender, if applicable~~ the respective Lease for each Property (the “SNDA”); provided, however, that Seller's failure to obtain an SNDA for any one or more of the Properties shall not constitute a default of this Agreement by Seller if Seller has used good faith efforts to obtain the same. (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer; provided, however, that Seller's failure to obtain an estoppel certificate with respect to any reciprocal easement agreement shall not constitute a default of this Agreement by Seller if Seller has used good faith efforts to obtain the same.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence ~~Period~~ Period, and those matters listed on Schedule 6 attached hereto, shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property or any judgments and federal and state tax liens (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing, including the payment of a sum of money in connection therewith. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except the Liens as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx ~~Money~~ Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any material matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). ~~If Buyer provides Seller with such written notice regarding any new~~ With respect to Joliet and New Lenox, a title matter ~~added to~~ that is revealed after the Title Commitment ~~pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior~~ is delivered that is subordinate to the ~~Closing Date~~subject Ground Lease and does not have a material adverse effect on the use and operation of the subject medical office building shall not be deemed to be “material” 13 for purposes of the preceding sentence. If Seller does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section,~~ Buyer may terminate this Agreement, in which case the Xxxxxxx ~~Money~~ Money, together with all interest earned thereon, shall be returned to Buyer, and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If Buyer terminates the Agreement pursuant to the immediately preceding sentence, and the title matter subject to the Objection was intentionally caused or permitted to occur by Seller, it shall be treated as an event of default by Seller and Buyer shall have the rights and remedies set forth in Section 9(b) of this Agreement. (ib) ~~Within five (5) business days following the Effective Date,~~ Seller ~~shall provide~~ has provided to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases and ground leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including, without limitation, any as-built surveys obtained or delivered to the tenant of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance ~~commitments~~ policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the ~~Property~~Property and of all governmental permits and approvals; (Bvi) a copy of all ~~governmental permits/approvals; (C) a copy of all~~ environmental, engineering and physical condition reports for the Property; (Dvii) the operating budget and any CAM reconciliations of the Property for the twenty-four (24) month period immediately preceding the Effective Date; (viii) the operating statements and delinquency reports of the Property for the twenty-four (24) month period immediately preceding the Effective Date; (ix) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years; ~~and~~ (Ex) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (xii) deleted; (xiii) Tenant’s financials in Seller’s possession; (xiv) a copy of all primary and secondary state licenses or regulatory permits for the Property, if any; and (xv) a copy of any documents relating to a waiver of life safety code or physical plant requirements for the Property, if any (collectively, the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within ~~three~~ Seller’s or its affiliates’ or agents’ possession or reasonably obtainable by Seller, within two (32) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor materially interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease or Seller under the Ground Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with the Tenant and Ground Lessor in connection with Buyer’s due diligence, provided a representative of Seller is present. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In Seller has requested a waiver of the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Joliet Right and provided Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request. Within two (2) business days following the Effective Date, Seller shall deliver to Buyer a draft of each completed Estoppel Certificate (defined below) and ~~a Waiver of Tenant’s right of first refusal, if any~~Ground Lease Estoppel Certificate (defined below) for each Ground Lease. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate ~~from Tenant~~ certified to Buyer, its lender and their successors and assigns, in the form attached hereto as Exhibit FH, or ~~Buyer shall also accept~~to the extent a Lease explicitly requires a particular form, ~~in lieu of the form Exhibit F, any other estoppel certificate which is~~ in the form ~~of estoppel the tenant is obligated to deliver and has agreed to~~ required under ~~its~~ that Lease (the “~~Tenant~~ Estoppel Certificate”), and from each Ground Lessor in the form required attached hereto and made a part hereof as Exhibit I (the “Ground Lease Estoppel Certificate”). Seller shall ~~use good faith efforts to obtain the same. Seller shall~~ promptly deliver to Buyer ~~photocopies~~ a photocopy or ~~pdf files~~ .pdf file of ~~the~~ each executed ~~Tenant~~ Estoppel Certificate and Ground Lease Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) ~~Buyer~~ After the Effective Date, Seller shall order a an owner’s title commitment (the “Title Commitment”” also known as a preliminary title report) ~~for~~ to insure title to the ~~Property~~ Property, from ~~Escrow Agent promptly after the Effective Date~~Title Company, together with a copy of all exceptions. All matters shown in the Title Commitment or the Survey with respect to which Buyer fails to object ~~prior to~~ by the earlier of (i) ten (10) business days after Buyer’s receipt of the Title Commitment and copies of all exceptions thereto for each Project or (ii) the expiration of the ~~First~~ Due Diligence Period (the “Title Review Period”) shall be deemed “Permitted Exceptions”. ~~However, Permitted Exceptions~~ Buyer may disapprove of any item or exception shown on the Title Commitment or the Survey by delivering written notice to Seller of its objection to any such matter prior to the expiration of the Title Review Period. Seller shall not ~~include~~ be in breach or default of this Agreement if Seller fails to cure over any ~~mechanic’s lien~~ title or survey matter objected to by Buyer (it being understood that Seller shall have no duty or obligation to cause such matters to be cured or endorsed over unless Seller notifies Buyer that it elects to cure such matters); provided, however, Seller shall be obligated to cause to be removed at or prior to the Closing Date, all (i) mortgage liens, (ii) mechanics’ liens, (iii) judgment liens, (iv) any ~~monetary lien,~~ delinquent real estate tax liens or ~~any deeds~~ assessments and (v) other similar exceptions to the title to the Property which are of ~~trust, mortgage, or other loan documents secured by~~ a definitive and/or ascertainable amount and are curable through the ~~Property,~~ payment of money (collectively, (i)-(v) are the “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller shall, within five (5) days following receipt of Buyer’s title objections, if any, may notify Buyer of any objections which Seller elects not to remove or ~~cure~~cure for the Property within three (3) business days following receipt of Buyer’s objections (“Seller Notice Period”). ~~Notwithstanding anything~~ In the event Seller fails to respond to Buyer within the ~~contrary~~Seller Notice Period, Seller ~~has no obligation~~ shall be deemed to ~~take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any~~ have elected to not cure all such ~~title~~ objections. In the event that Seller, by notice to Buyer within such Seller Notice Period, notifies Buyer that Seller refuses to remove or cure any ~~objections~~objections or Seller does not so respond, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) days after ~~receipt of Seller’s notice~~the Seller Notice Period, upon which ~~termination~~ the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If ~~any matter~~ Buyer does not ~~revealed~~ provide termination notice within such five (5) day period, Buyer shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 7(a) and all matters shown in the Title Commitment ~~is discovered~~ and the Survey shall be deemed approved by Buyer and shall constitute Permitted Exceptions for all purposes under this Agreement. Approval by Buyer of any additional title exceptions, defects, encumbrances or ~~by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days~~ other title matters first disclosed in writing after ~~the~~ Buyer’s receipt of the ~~updated, revised~~ Title Commitment ~~showing~~ (“Additional Title Matters”) shall be a condition precedent to Buyer’s obligations to purchase the ~~new~~ Property (Buyer hereby agreeing that its approval of such additional title ~~exception~~matters shall not be unreasonably withheld). Unless Buyer gives written notice (“Title Disapproval Notice”) that it disapproves any Additional Title Matters, ~~together with a legible copy~~ stating the Additional Title Matters so disapproved, before the sooner to occur of ~~any such new matter,~~ the Closing or five (ii5) ~~the date~~ days after receipt of ~~Closing, to provide Seller with~~ written notice of ~~its objection~~ such Additional Title Matters, Buyer shall be deemed to have approved such Additional Title Matters. Seller shall have until the Closing within which to remove the disapproved Additional Title Matters set forth therein from title. In the event Seller determines at any time that they are unable or unwilling to remove any one or more of such ~~new title exception (an “Objection”). If Buyer provides~~ disapproved Additional Title Matters at or by Closing, Seller ~~with such~~ shall give written notice ~~regarding any new matter added~~ to ~~the Title Commitment pursuant~~ Buyer to such effect; in such event, Buyer may, at its option, terminate this ~~Section, the Closing Date shall be automatically extended for a reasonable time and~~ Agreement upon written notice to Seller ~~shall be automatically provided a reasonable time to remove or cure any such objection~~ but only if given prior to the ~~Closing Date. If Seller does not remove or cure such Objection prior~~ sooner to occur of the Closing ~~Date, as extended per this Section,~~ or five (5) days after Buyer ~~may terminate this Agreement~~receives Seller’s notice, in which case this Agreement shall immediately terminate, Buyer shall be entitled to a return of the Xxxxxxx ~~Money shall be returned to Buyer~~Money, and ~~neither party~~ Seller and Buyer shall have ~~any~~ no further ~~obligation~~ rights or obligations hereunder, except ~~as otherwise~~ for the provisions hereof that expressly survive termination of this Agreement. If Buyer fails to give such termination notice by such date, Buyer shall be deemed to have waived its objection to, and to have approved, the matters set forth ~~herein~~in Seller’s notice. The Closing Date may be extended as necessary to allow for the time periods in this paragraph to address any Additional Title Matters. (ib) Within five (5) ~~business~~ days ~~following~~ after the Effective Date, Seller shall provide to Buyer copies of or make available for inspection at Seller’s office (copies or inspection at Seller’s discretion) the following documents and materials pertaining to the Property to the extent within Seller’s possession or ~~reasonably obtainable by Seller or~~ control (and anything in possession of Seller’s ~~counsel:~~ property manager or asset manager shall be deemed to be in Seller’s possession or control): (Ai) ~~a complete copy of all leases affecting the Property~~ current preliminary title report and ~~all amendments thereto ;~~ an ALTA Survey (Bif any) ~~a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports~~ prepared for the Property along with underlying documents referenced or described therein; (Dii) ~~a copy~~ rent rolls; (iii) available construction plans, drawings and specifications respecting the Improvements; (iv) engineering reports; (v) environmental reports; (vi) copies of all ~~architectural plans and specifications and construction drawings for improvements to be located on the Property; (E) a copy of Seller’s title insurance commitments~~ operative service contracts relating to the Property; (Fvii) ~~all contracts~~ copies of operative leases, licenses and ~~insurance policies which affect~~ occupancy agreements relating to the Property. ; (iiviii) ~~Within five (5) business days following~~ operative vendor warranties in connection with the ~~commencement~~ operation of the ~~Second Due Diligence Period, Seller shall provide to Buyer~~ Property; (ix) copies of current, and the ~~following documents~~ immediately preceding two (2) years property tax bills, and ~~materials pertaining to~~ special assessments respecting the ~~Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel:~~ Property; (Ax) ~~a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of~~ operating income statements respecting the Property for ~~its intended purpose~~ 2012, 2013 and ~~such equivalent evidence~~ first and second quarters of ~~lawful possession is not unreasonably conditioned, and zoning reports~~ 2014; (xi) certificates of completion for the Property; (Bxii) ~~a copy~~ copies of ~~all governmental permits/approvals; (C) a copy of all engineering and physical condition reports~~ fire system annual inspections for the Property; (Dxiii) copies of the ~~Property’s real estate tax~~ last 12 months of utility bills which are not paid directly by the tenants (gas, electric, water and sewer) for the ~~current tax year~~Property; (xiv) copies of HOA materials; and (Exv) ~~all service contracts and insurance policies~~ other documentation (based on a commercially reasonableness standard determined by Seller) in Seller’s possession or ~~insurance certificates which affect~~ control that would be relevant to Buyer in conducting Buyer’s review of the Property – (~~the~~ i) through (xv) collectively referred to herein as “Due Diligence Materials”).” The Due Diligence Materials furnished to or made available to Buyer are expressly understood by Buyer to be subject to the confidentiality provisions of Section 31 and, except for Section 12 below, Seller makes no warranty concerning said Due Diligence Materials accuracy. Notwithstanding any terms to the contrary in this Agreement, (1) Seller shall ~~deliver~~ not be obligated or otherwise required to furnish or make available to Buyer any of the following (collectively, “Excluded Property Records”): (A) any appraisals or other economic evaluations of, or projections with respect to all or any portion of the Property, including, without limitation, 2014 budgets, and (B) any documents ~~relating~~ or materials or information which (y) are subject to attorney/client privilege, work product or similar privilege, with respect to the purchase of the Property ~~reasonably requested~~ by Seller, or (z) are subject to a confidentiality agreement; and (2) Seller shall have no obligation or liability of any kind to Buyer ~~within three (3) business days following Seller’s receipt~~ as a result of ~~such request, which shall be made by~~ Seller not furnishing or making available to Buyer ~~in writing~~the Excluded Property Records. Additionally, ~~upon reasonable prior notice to Seller (~~during the Due Diligence Period and ~~after obtaining Seller’s advance written approval in each instance for~~ through the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to the term of this AgreementClosing, Buyer, its agents and designees, at Buyer’s sole cost and expense, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may ~~reasonably~~ require in its discretion to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property ~~nor~~ or consist of invasive testing, and Buyer shall use commercially reasonable efforts not to interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant~~ tenant(s) under the ~~Lease~~Leases; and provided further, however, that Buyer shall pay all costs and expenses of such activities on the Property and agrees to defend, indemnify and hold Seller harmless from and against any and all ~~claims~~ loss, claims, damages, cost, liability, settlement, cause of action or ~~damages~~ threat thereof or expense (including, without limitation, reasonable attorneys’ fees and costs) arising from or related to ~~the extent resulting from~~ the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such ~~damage~~damage to the extent reasonably possible given the nature and condition of the Property at the time of Buyer’s activities, which obligation shall survive Closing or any termination of this Agreement. Notwithstanding the foregoing, the indemnity contained in this Section shall exclude any and all loss, claims, damages, cost, liability, settlement, cause of action or threat thereof or expense (including, without limitation, reasonable attorneys’ fees and costs) (i) to the extent caused by the negligence of Seller or any party under Seller’s direction or control, or (ii) arising out of pre-existing conditions on, under or about the Property, except to the extent exacerbated by Buyer. Buyer shall ~~deliver to Seller promptly all Final Reports produced~~ (or ~~procured~~ shall cause any consultants retained by Buyer ~~related~~ to) maintain a liability policy with a minimum limit of One Million Dollars ($1,000,000.00) per occurrence with respect to ~~the Property~~any such Property inspection activities. ~~Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. ~~Before Buyer may enter or inspect the Property,~~ Buyer shall ~~provide Seller~~ not interview, correspond with ~~a certificate~~ or otherwise contact Tenants for any reason relating to the transaction contemplated by this Agreement or the potential sale of ~~insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum~~ the Property without first obtaining the written consent of ~~$2 million) and coverage satisfactory to~~ Seller~~. After the Effective Date~~, ~~and upon reasonable prior notice to Seller and after obtaining~~ which consent shall not be unreasonably withheld, conditioned or delayed, and, at Seller’s ~~advance written approval in each instance, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement~~election, Seller ~~shall provide Buyer~~ may elect to be present during any such interview or contact with ~~the name of a contact person(s) for the purpose of arranging site visits~~Tenant. Buyer shall give Seller reasonable written notice (which in any event shall not be less than ~~two~~ one (21) business ~~days~~day) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the ~~Property~~Property but Seller’s inability to timely provide a representative to attend shall not preclude Buyer from proceeding with an otherwise properly noticed inspection. Notwithstanding the foregoing, Buyer shall ~~have~~ not be permitted to undertake any air sampling or any intrusive or destructive testing of the ~~unconditional right~~Property, including, without limitation, a “Phase II” environmental assessment (collectively, the “Intrusive Tests”), without in each instance first obtaining Seller’s prior written consent thereto, which consent Seller shall not unreasonably withhold. If the Agreement is terminated for any reason other than a Seller default, copies of all Property investigative reports generated for or ~~no reason, to terminate this Agreement by giving written notice thereof~~ on behalf of Buyer shall be delivered to Seller ~~prior~~ without representation or warranty by Buyer as to the expiration of the First Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth hereintheir accuracy or completeness. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Rexford Industrial Realty, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows~~: (a)~~ : Buyer shall order a title commitment from Escrow Agent (the “Title Commitment”), survey and Zoning Report (at Buyer’s election) for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or Zoning Report (collectively, “Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent); provided, however, that Seller shall have no obligation to spend more than $500,000 to cure non voluntary Liens. Buyer shall, on or before the date which is ten (10) days prior to the expiration of the Due Diligence Period, inform the Seller in writing (the “Title Matters Notice”) as to any Title Matters that Buyer is unwilling to accept. Seller ~~agrees~~ shall have no obligation to ~~remove or~~ cure any ~~objections~~ Title Matter objected to except for the Liens. If Seller fails either to cure or remove (or commit in writing to cure or remove) such Title Matter to which Buyer objected to the reasonable satisfaction of the Title Company and the Buyer ~~which are of a nature that are capable of being cured with reasonable efforts~~ prior to ~~Closing. Seller shall, within~~ the expiration of five (5) days ~~following~~ after receipt of ~~Buyer’s title objections~~the Title Matters Notice, if any, notify Buyer of any objections which Seller elects not to remove or cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title objections. In the event that Seller refuses to remove or cure any objections, then Buyer shall have the right to terminate this Agreement upon written notice to Seller given ~~within five (5) days after receipt of Seller’s notice~~on or prior to the Due Diligence Period, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have ~~until the earlier of~~ five (~~i) ten (10~~5) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new ~~matter, or (ii) the date of Closing,~~ matter to provide Seller with written notice of its objection to any such new title exception (an a “New Title Objection”). If ~~Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section~~necessary, the Closing Date shall be ~~automatically~~ extended ~~for~~ to allow Buyer the full five (5) days to deliver a ~~reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date~~New Title Objection. If Seller does not remove or cure such New Title Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to ~~Buyer,~~ Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein~~. (i)~~ . Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s possession or reasonably obtainable by ~~Seller or~~ Seller~~’s counsel~~: (Ai) ~~a complete copy~~ certificates of ~~all leases affecting the Property~~ occupancy, and all amendments thereto ; (B) a copy of all surveys and site plans of the Property; (C) a copy of all environmental reports for the Property (D) a copy of all architectural plans and specifications and construction drawings for improvements to be located on the Property; (E) a copy of Seller’s title insurance commitments relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence items that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; and (E) all service contracts and insurance policies or insurance certificates which affect the Property are listed on Exhibit F (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following Seller’s receipt of such request, which shall be made by Buyer in writing. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with the progress of construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall promptly repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section, Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with ~~Tenant~~ Seller’s designated representative, First and Last Name in connection with Buyer’s due diligence. ~~Upon signing~~ To the extent available, any Due Diligence Materials available in electronic form or as part of Seller’s management software shall be made available in such form on the request of Buyer. Between the Effective Date and the expiration of the Due Diligence Period, or the earlier termination of this ~~agreement~~Agreement, Seller shall ~~provide~~ permit Buyer ~~with~~ and “Buyer Representatives” (as hereinafter defined) reasonable access to the ~~name of a contact person(s~~Land and Buildings during normal business hours upon at least forty-eight (48) ~~for the purpose of arranging site visits. Buyer shall give Seller reasonable~~ hours advance written notice ~~(which in any event shall not be less than two (2) business days) before entering the Property~~to Seller. At Seller’s election, ~~and~~ Seller may have a representative present during any such inspection. Neither Buyer nor Buyer Representatives shall be entitled to conduct any investigation that involves air sampling, boring or penetration into the Land or Buildings, without the express written consent of Seller which may be granted or denied in Seller’s sole and absolute discretion. Any request by Buyer to Seller for permission to conduct any such intrusive testing shall be in writing and shall be accompanied by a written scope of the intended work in sufficient detail to allow Seller to reasonably evaluate the request. If granted, such consent shall not be construed to and shall not release Buyer from its indemnification of Seller hereunder. No such consent shall be required for Buyer and Buyer Representatives to conduct investigations for radon or mold. Buyer shall conduct its inspections and reviews (i) in a safe and professional manner; (ii) so as not to create any dangerous or hazardous condition on the Property; (iii) in compliance with all ~~examinations~~applicable laws; (iv) only after obtaining all permits required to be obtained with respect to such inspections; and (v) in a manner that does not cause any damage, ~~inspections~~loss, ~~Tenant meetings and/or studies on~~ cost or expense to, or claims against Seller or the Property. Buyer agrees to repair any damage or disturbance Buyer or Buyer Representatives shall cause to the Property, and further Buyer agrees to indemnify, defend and hold harmless Seller and the “Seller Parties” (hereafter defined) from any and all liability, claims, demands, damages and costs (including attorneys’ fees and expenses) resulting from the activities of Buyer and Buyer Representatives upon the Property (provided, however, that such indemnity shall not include any liability resulting from the mere discovery of hazardous materials at the Real Property) and from and against all mechanics’, materialmen’s or other liens resulting from the conduct of Buyer or Buyer Representatives upon the Property. This provision shall survive termination of this Agreement. Buyer and Buyer Representatives shall also have access to the ~~unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to~~ Property after the expiration of the ~~First~~ Due Diligence Period, ~~in which event this Agreement shall become null and void, Buyer shall receive a refund~~ upon all of the ~~Xxxxxxx Money,~~ terms and ~~all rights, liabilities and obligations~~ conditions of ~~the parties under~~ this ~~Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in~~ Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”6(c). ~~(f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.~~

Appears in 1 contract

Samples: Purchase and Sale Agreement

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust II, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) for ~~the~~ each Property from Escrow Agent promptly after the ~~Effective Date~~date hereof. All matters shown in the Title Commitment with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller ~~shall~~shall have no obligation to cure any title matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure for each Property within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement with respect to such Property upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the ~~Xxxxxxx~~ Exxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the ~~Xxxxxxx~~ Exxxxxx Money shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred with respect to the Title Commitment and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; ~~and~~ (Eviii) a copy of each tenant sales reports for the previous twenty four (24) calendar months; (ix) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any roof warranties; and (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to ~~the~~ each Property reasonably requested by Buyer within three (3) business days following ~~Seller’s receipt of~~ such request, which shall be made by Buyer in writing. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with the progress of construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall promptly repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section, Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, inspections, Tenant meetings and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the First Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Seller shall request Estoppel Certificates (and simultaneously provide Purchaser with a copy of such request) and a Waiver of Tenant’s right of first refusal, if any. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form attached hereto as Exhibit F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the “Tenant Estoppel Certificate”). Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed Tenant Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (f) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust III, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Global Trust II, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. Buyer shall provide Seller with a copy of the Title Commitment, survey and zoning report no later then five (5) days after receipt by Buyer. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent)) no later then the Closing Date. Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts ~~prior~~ no later then the Closing Date provided, Buyer provides notice to ~~Closing~~Seller of any such objections during the Due Diligence Period. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, except as aforesaid, provided Seller notifies Buyer of any objections which. Seller elects not to remove or cure within five (5) business days following receipt of Buyer’s title objections, if any, notify Buyer of any objections which Seller elects not to remove or cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “Objection”)~~. If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section~~, ~~the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date.~~ If Seller does not remove or cure such ~~Objection prior to~~ Objection. as of the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to ~~Buyer,~~ Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. Subject to the provisions of this subparagraph (a), the Title Commitment approved by Buyer during the Due Diligence Period shall be the basis upon which the owner’s form of title insurance policy referred to in Section l3(b) shall be issued. (ib) Within ~~five~~ rive (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (Fv) a copy of the certificate of occupancy and zoning reports for the Property; and of all governmental permits/approvals; (vi) a copy of all environmental, engineering and physical condition reports or agreements for the Property, to include the Environmental Licensing Agreement between Tenant, Sunoco, Inc. (R&M) and Seller and the Indemnity Agreement between Sunoco, Inc. (R&M) and Seller; (vii) copies of the Property’s real estate tax bills for the current and prior two (2) tax years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; (vii) all ~~contracts and insurance policies which affect~~ service contracts, if any; (viii) a copy of all warranties relating to the improvements constructed on the Property. , including without limitation any roof warranties; and (iixii) ~~Within five~~ a written inventory of all items of personal property to be conveyed to Buyer, if any (~~5) business days following~~ the ~~commencement of the Second~~ “Due Diligence ~~Period~~Materials”). At the xxxx Xxxxxx provides to Buyer the Due Diligence Materials, Seller shall provide notice to Buyer ~~copies~~ of ~~the following~~ any Due Diligence Materials it is not able to provide. Seller shall deliver any other documents ~~and materials pertaining~~ relating to the Property reasonably requested by Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel~~: (A) a copy of the certificate of occupancy~~, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property; (D) copies of the Property’s real estate tax bills for the current tax year; and (E) all service contracts and insurance policies or insurance certificates which affect the Property (the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by Buyer within three (3) business days following ~~Seller’s receipt of~~ such ~~request, which shall be~~ request provided such request is made by Buyer ~~in writing~~prior to the expiration of the Due Diligence Period. Any such request by Buyer shall not extend the expiration of the Due Diligence Period. Additionally., ~~upon reasonable prior notice~~ during the Due Diligence Period and subject to ~~Seller (~~the terms and ~~after obtaining Seller’s advance written approval in each instance~~ conditions of the lease for the ~~scope~~ Property between Seller and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to the term of this AgreementTenant, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. Prior to any such access, Buyer shall. provide Seller with proof of the existence of customary insurance coverage (property, casualty and liability) in amounts that are commercially reasonable. Buyer shall ~~deliver to Seller promptly all Final Reports produced or procured by Buyer related to~~ not permit the ~~Property. Subject to~~ recording of any construction liens against the ~~terms~~ Property as a result of any permitted activity on the Property under the provisions of this ~~Section,~~ subparagraph. Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due ~~diligence~~diligence during the Due Diligence Period. Buyer shall not be permitted to discuss with Tenant any changes to the Lease. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement ~~shall~~ shal..l become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. If Buyer does not exercise its right to terminate this Agreement during the Due Diligence Period, the Xxxxxxx Money shall not be refundable to Buyer except as otherwise set forth in this Agreement. (c) In Within forty (40) days preceding the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days following the Second Due Diligence Period Closing Date Seller shall request Estoppel Certificates certified to Buyer, the Approved Assignee and their Lender, successors and assigns (and simultaneously provide ~~Purchaser~~ Buyer with a copy of ~~such~~ such. request) and a Waiver of Tenant’s right of first refusal, ~~if any~~using such forms that are acceptable to Tenant. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant in the form acceptable to Tenant, containing terms consistent with the attached ~~hereto as~~ Exhibit ~~F, or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ F (the “Tenant Estoppel Certificate”). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificate[s] when Seller receives the same. (ed) Seller shall use good faith efforts to obtain a subordination, ~~non-~~non- disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Tenant, Buyer and Buyer’s Lender, if applicable (the “SNDA”). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Properties, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Seller shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any deeds of trust, mortgage, or other loan documents secured by the ~~Property,~~ Property or any judgments and federal and state tax liens (collectively, “Liens”). Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing, including the payment of a sum of money in connection therewith. Seller ~~shall~~shall have no obligation to cure any Title Matter objected to, ~~within five (5) days following receipt of Buyer’s title objections~~except the Liens as aforesaid, ~~if any, notify~~ provided Seller notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s notice, upon which termination the Xxxxxxx ~~Money~~ Money, and all interest earned thereon, shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide Seller with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section,~~ Buyer may terminate this Agreement, in which case the Xxxxxxx ~~Money~~ Money, together with all interest earned thereon, shall be returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) business days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Ai) a complete copy of all leases and lease guaranties affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including, without limitation, any as-built surveys obtained or delivered to the Tenant of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings for improvements ~~to be~~ located on the Property; (Eiv) a copy of Seller’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, occupancy and zoning reports for the ~~Property~~Property and of all governmental permits and approvals; (Bvi) a copy of all ~~governmental permits/approvals; (C) a copy of all~~ environmental, engineering and physical condition reports for the Property; (Dvii) the operating budget and any CAM reconciliations of the Property for the current year and following year, if available; (viii) the operating statements and delinquency reports of the Property for the twenty-four (24) month period immediately preceding the Purchase and Sale Agreement effective date; (ix) copies of the Property’s real estate tax bills for the current and prior two (2) tax ~~year~~years; ~~and~~ (Ex) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Buyer, if any; (xiii) updated set of Tenant’s financials to be provided through the Closing Date to extent reasonably available to Seller and consistent with Tenant’s reporting requirements; (xiv) complete copy of any feasibility study completed by the developer; (xv) a copy of all primary and secondary state licenses or regulatory permits for the Property; and (xvi) a copy of any documents relating to a waiver of life safety code or physical plant requirements (collectively, the “Due Diligence Materials”). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property ~~nor interfere with the progress of construction on the Property~~ or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer~~ Any company that does invasive testing at the Property shall ~~deliver to Seller promptly all Final Reports produced or procured by Buyer related to~~ name the Seller, its Mortgagee and Management Company, if any, as additional named insured, on policies covering the invasive testing done at the Property. ~~Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. Within two (~~d) Within five (5~~2) business days following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request ~~Estoppel Certificates~~ a waiver of any first right of refusal, right of first offer or other purchase right that any party may have to purchase the Property (and simultaneously provide ~~Purchaser~~ Buyer with ~~a copy~~ copies of such ~~request~~requests). Within two (2) ~~and~~ business days following the Effective Date, Seller shall deliver to Buyer a ~~Waiver~~ draft of ~~Tenant’s right of first refusal, if any~~the completed Estoppel Certificate (defined below). It shall be a condition of Closing that Seller shall have obtained an a tenant and guarantor estoppel certificate ~~from Tenant~~ certified to Buyer, its lender and their successors and assigns in the form attached hereto as Exhibit F, or ~~Buyer shall also accept~~to the extent the Lease explicitly requires a particular form, ~~in lieu of the form Exhibit F, any other estoppel certificate which is~~ in the form ~~of estoppel~~ required under the ~~tenant is obligated to deliver and has agreed to under its~~ Lease (the “~~Tenant~~ Estoppel Certificate”). Seller shall ~~use good faith efforts to obtain the same. Seller shall~~ promptly deliver to Buyer ~~photocopies~~ a photocopy or pdf ~~files~~ file of the executed ~~Tenant~~ Estoppel Certificate when Seller receives the same. (e) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”). (fd) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements affecting the Property, as may be reasonably requested by Buyer. (e) On or before the expiration of the Due Diligence Period, Buyer shall notify Seller in writing if Buyer elects not to assume at Closing any of the Contracts (defined below). If Buyer does not notify Seller prior to the expiration of the Due Diligence Period that it elects not to assume any of the Contracts, Buyer shall be deemed to have accepted and agreed to assume all of the Contracts. If Buyer exercises its right not to assume one or more Contracts at Closing, Seller shall give notice of termination of such disapproved Contract(s); provided, if by the terms of the disapproved Contract Seller has no right to terminate same on or prior to Closing, Buyer shall be required at Closing to assume all obligations thereunder until the effective date of the termination; provided, further, if any fee or other compensation is due under any disapproved Contract as a result of such termination, whether payable before or after the Closing Date, Seller shall remain obligated to pay the contractor or to reimburse Buyer for the payment of the termination charge. Notwithstanding the foregoing, Seller shall, without notice from Buyer, terminate any and all property management and listing agreements prior to Closing at Seller’s sole cost and expense. (f) Seller shall cause its property manager to complete the Property Manager Questionnaire in the form attached hereto as Exhibit L and return the same to Buyer within ten (10) days following the Effective Date.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Healthcare Trust III, Inc.)

Examination of Property. Seller and Buyer hereby agree as follows: (a) Buyer shall order a title commitment (the “"Title Commitment”") from Escrow Agent, a survey and a zoning report for the Property ~~from Escrow Agent~~ promptly after the Effective Date. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report ("Title Matters") with respect to which Buyer fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “"Permitted Exceptions”". However, Permitted Exceptions shall not include and Seller shall be obligated to remove (or cause the Escrow Agent to affirmatively insure over with Buyer's approval) (a) any ~~mechanic’s lien~~ mortgages or ~~any monetary lien, or any~~ deeds of ~~trust, mortgage,~~ trust securing any financing obtained by Seller and that encumber the Property; (b) any mechanics or ~~other loan documents secured~~ materimen's liens for work done by or on behalf of Seller and that encumber the Property; and (c) any and all claims and liens that encumber the property and are shown on the Title Commitment for which the amount of the claim can be determined and can be cured merely by the ~~Property~~payment of money, but excluding (i) claims or liens arising through Buyer, and (ii) any such claims or liens which would obligate Seller to expend more than $50,000.00 in the aggregate to cure (collectively, “the "Liens”"), provided that if Seller fails to remove (or cause the Escrow Agent to affirmatively insure over with Buyer's approval) such Liens, Seller shall pay to Buyer all of the out-of-pocket costs and expenses incurred by Buyer in connection with this Agreement not to exceed in the aggregate $50,000. Seller shall ~~be required~~ have no obligation to cure ~~or remove all Liens (by payment~~any Title Matter objected to, ~~bond deposit or indemnity acceptable to Escrow Agent).~~ except as aforesaid, provided Seller agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller shall, within five (5) days following receipt of Buyer’s title objections, if any, notify notifies Buyer of any objections which Seller elects not to remove or ~~cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title~~ cure within five (5) business days following receipt of Buyer's objections. In the event that Seller refuses to remove or cure any objections, Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after receipt of Seller’s 's notice, upon which termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ~~ten~~ five (105) days after the Buyer’s 's receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its objection to any such new title exception (an “"Objection”"). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller does not remove or cure such Objection prior to the ~~Closing Date, as extended per this Section~~date of Closing, Buyer may terminate this Agreement, in which case the Xxxxxxx Money shall be returned to ~~Buyer,~~ Buyer and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. (ib) Within five (5) ~~business~~ days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s 's possession or ~~reasonably obtainable by Seller or Seller’s counsel~~control: (Ai) a complete copy of all leases affecting the Property (unless the same have previously been provided to Buyer) and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction, if any; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property, if any; (Eiv) a copy of Seller’s 's title insurance commitments and policies relating to the Property, if any; (Fv) a copy of the certificate of occupancy (or local equivalent) and zoning reports for the Property and of all governmental permits/approvals, if any; (vi) a copy of all environmental, engineering and physical condition reports for the Property, if any; (vii) copies of the Property's real estate tax bills for the current and prior two (2) tax years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership; (viii) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date or if the Tenants have been operating for less than twenty-four (24) months, for the period of operation; (ix) all service contracts and insurance policies which affect the Property~~. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period~~, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (A) a copy of the certificate of occupancy, temporary certificate of occupancy, or any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned, and zoning reports for the Propertyif any; (Bx) a copy of all ~~governmental permits/approvals; (C) a copy of all engineering and physical condition reports for~~ warranties relating to the improvements constructed on the Property~~; (D) copies of the Property’s real estate tax bills for the current tax year~~, including without limitation any roof warranties, if any; and (Exii) a written inventory of all ~~service contracts and insurance policies or insurance certificates which affect the Property~~ items of personal property to be conveyed to Buyer, if any (the “"Due Diligence Materials”"). Seller shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Buyer, to the extent within Seller's possession or control, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, Buyer, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant~~ Tenants under the ~~Lease~~Leases; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and Buyer shall ~~promptly~~ repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section,~~ Seller shall reasonably cooperate with the efforts of Buyer and the Buyer’s 's representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date~~, and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance~~, Buyer shall be permitted to speak and meet with ~~Tenant~~ Tenants in connection with Buyer’s 's due diligence. Upon signing this ~~agreement~~Agreement, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and Seller may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to Seller and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and void, Buyer shall receive a refund of the Xxxxxxx Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. (d) Within five (5) business days Promptly following the ~~Second Due Diligence Period~~ Effective Date, Seller shall request Estoppel Certificates certified to the following: "AR Capital, LLC, ARC PPHHTKY001, LLC, and their lender, successors and assigns" (and simultaneously provide ~~Purchaser~~ Buyer with a copy of such request) and a Waiver of ~~Tenant’s~~ Tenants' right of first refusal~~, if any~~. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from ~~Tenant~~ Tenants in the form attached hereto as Exhibit ~~F, or Buyer shall also accept, in lieu of~~ F (the ~~form Exhibit F, any other~~ "Tenant Estoppel Certificate") and an estoppel certificate ~~which is~~ from Guarantor in the form ~~of estoppel the tenant is obligated to deliver and has agreed to under its Lease~~ attached hereto as Exhibit G (the ~~“Tenant~~ "Guarantor Estoppel Certificate”"). , and Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the executed ~~Tenant Estoppel Certificate~~ estoppel certificates if and when Seller receives the same. (ed) Seller shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from ~~Tenant~~ Tenants in form and substance reasonably acceptable to Buyer and Buyer’s 's Lender, if applicable (the “"SNDA”"). (fe) Seller shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Global Trust, Inc.)

Examination of Property. ~~Seller~~ Lessor and ~~Buyer~~ Lessee hereby agree as follows: (a) ~~Buyer~~ Lessee shall order a title commitment (the “Title Commitment”) ~~for the Property~~ from Escrow ~~Agent~~ Agent, a survey and a zoning report for each Property promptly after the ~~Effective Date~~date hereof. All matters shown in the Title ~~Commitment~~ Commitment, survey or zoning report (“Title Matters”) with respect to which ~~Buyer~~ Lessee fails to object prior to the expiration of the ~~First~~ Due Diligence Period shall be deemed “Permitted Exceptions”. However, Permitted Exceptions shall not ~~include~~ include, and Lessor shall be obligated to remove of record prior to or at Closing, any mechanic’s lien or any monetary lien, fine or penalty, or any bond indentures, deeds of trust, mortgage, or other loan documents secured by ~~the~~ any Property, or any judgments and federal and state tax liens (collectively, “Liens”). ~~Seller~~ Lessor shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). ~~Seller agrees~~ Lessor shall have no obligation to cure any Title Matter objected to, except the Liens as aforesaid, provided Lessor notifies Lessee of any objections which Lessor elects not to remove or cure ~~any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts prior to Closing. Seller shall,~~ within five (5) business days following receipt of ~~Buyer~~Lessee’s title objections, if any, notify Buyer of any objections which Seller elects not to remove or cure. Notwithstanding anything to the contrary, Seller has no obligation to take any steps, bring any action, or incur any costs, effort or expenses whatsoever regarding any such title objections. In the event that ~~Seller~~ Lessor refuses to remove or cure any objections, ~~Buyer~~ Lessee shall have the right to terminate this Agreement upon written notice to ~~Seller~~ Lessor given within five (5) business days after receipt of ~~Seller~~Lessor’s notice, upon which termination the ~~Xxxxxxx Money~~ Exxxxxx Money, and all interest earned thereon, shall be returned to ~~Buyer~~ Lessee and neither party shall have any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment is discovered by ~~Buyer~~ Lessee or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, ~~Buyer~~ Lessee shall have until the earlier of (i) ten (10) days after the ~~Buyer~~Lessee’s receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the ~~date of Closing~~Closing Date, to provide ~~Seller~~ Lessor with written notice of its objection to any such new title exception (an “Objection”). If Buyer provides Seller with such written notice regarding any new matter added to the Title Commitment pursuant to this Section, the Closing Date shall be automatically extended for a reasonable time and Seller shall be automatically provided a reasonable time to remove or cure any such objection prior to the Closing Date. If Seller Lessor does not remove or cure such Objection prior to the Closing Date, ~~as extended per this Section, Buyer~~ Lessee may terminate this ~~Agreement~~Agreement as to the applicable Property, in which case the ~~Xxxxxxx~~ pro-rata portion of the Exxxxxx Money set forth on Schedule 1 attached hereto applicable to such terminated Property, together with all interest earned thereon, shall be returned to ~~Buyer~~Lessee, and neither party shall have any further obligation ~~hereunder~~hereunder with respect to such terminated Property, except as otherwise expressly set forth herein. If Lessee terminates the Agreement as to a Property pursuant to the immediately preceding sentence and the Title Matter at issue was intentionally caused by Lessor, then upon such termination, Lessor shall reimburse Lessee for all out of pocket costs and expenses incurred by Lessee hereunder in connection with Lessee’s diligence of such Property. (ib) Within five (5) business days following the Effective Date, ~~Seller~~ Lessor shall provide to ~~Buyer~~ Lessee copies of the following documents and materials pertaining to ~~the~~ each Property to the extent within ~~Seller~~Lessor’s possession or reasonably obtainable by ~~Seller~~ Lessor or ~~Seller~~Lessor’s counsel: (Ai) a complete copy of all leases and lease guaranties affecting the Property and all amendments thereto and of all material correspondence relating thereto; (Bii) a copy of all surveys and site plans of the Property, including without limitation any as-built survey obtained or delivered to tenants of the Property in connection with its construction; (~~C) a copy of all environmental reports for the Property (D~~iii) a copy of all architectural plans and specifications and construction drawings and contracts for improvements ~~to be~~ located on the Property; (Eiv) a copy of ~~Seller~~Lessor’s title insurance commitments and policies relating to the Property; (F) all contracts and insurance policies which affect the Property. (ii) Within five (5) business days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (Av) a copy of the certificate of ~~occupancy, temporary certificate of occupancy,~~ occupancy (or ~~any such other equivalent evidence that the Tenant is lawfully in possession of the Property for its intended purpose and such equivalent evidence of lawful possession is not unreasonably conditioned,~~ local equivalent) and zoning reports for the Property; ~~(B) a copy~~ and of all governmental permits/approvals; (Cvi) a copy of all environmental, engineering and physical condition reports for the Property; (Dvii) copies of the Property’s real estate tax bills for the current and prior two (2) tax years or, if the Property has been owned by Lessor for less than two (2) tax years, for the period of ownership; (viii) the operating budget and any common area maintenance (CAM) reconciliations of the Property for the current year and following year, if available; (ix) the operating statements and delinquency reports of the Property for the twenty four (E24) calendar months immediately preceding the Effective Date or if a Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) all service contracts and insurance policies ~~or insurance certificates~~ which affect the ~~Property~~ Property, if any; (xi) a copy of all warranties relating to the improvements constructed on the Property, including without limitation any structural slab or roof warranties; (xii) a written inventory of all items of personal property to be conveyed to Lessee, if any; (xiii) Tenant financials for each Tenant, to the extent reasonably available to Lessor and consistent with each such Tenant’s reporting requirements; (xiv) a complete copy of any feasibility study completed by the developer of the Property; (xv) a copy of all primary and secondary state licenses or regulatory permits for the Property; and (xvi) a copy of any documents relating to a waiver of life safety code or physical plant requirements (collectively, the “Due Diligence Materials”). ~~Seller~~ Lessor shall deliver any other documents relating to the Property reasonably requested by ~~Buyer~~ Lessee, to the extent within Lessor’s or its affiliates’ or agents’ possession or reasonably obtainable by Lessor, within three (3) business days following ~~Seller’s receipt of~~ such request~~, which shall be made by Buyer in writing~~. Additionally, upon reasonable prior notice to Seller (and after obtaining Seller’s advance written approval in each instance for the scope and method of (i) any environmental, intrusive, or invasive testing or inspection; (ii) any testing or inspection which could alter the physical condition of the Property; or (iii) any testing or inspection which requires a consent under a Lease or which could result in a default under a Lease) and limited to during the term of this Agreement, ~~Buyer~~Lessee, its agents and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as ~~Buyer~~ Lessee may reasonably require to assess the condition and suitability of the Property; provided, however, that such activities by or on behalf of ~~Buyer~~ Lessee on the Property shall not damage the Property nor materially interfere with ~~the progress of~~ construction on the Property or the conduct of business by ~~Tenant~~ Tenants under the ~~Lease~~Leases; and provided further, however, that ~~Buyer~~ Lessee shall indemnify and hold ~~Seller~~ Lessor harmless from and against any and all claims or damages to the extent resulting from the activities of ~~Buyer~~ Lessee on the Property, and ~~Buyer~~ Lessee shall ~~promptly~~ repair any and all damage caused, in whole or in part, by ~~Buyer~~ Lessee and return the Property to substantially its condition prior to such damage, which obligation shall survive Closing or any termination of this Agreement. ~~Buyer shall deliver to Seller promptly all Final Reports produced or procured by Buyer related to the Property. Subject to the terms of this Section, Seller~~ Lessor shall reasonably cooperate with the efforts of ~~Buyer~~ Lessee and the ~~Buyer~~Lessee’s representatives to inspect the Property. Before Buyer may enter or inspect the Property, Buyer shall provide Seller with a certificate of insurance naming Seller (and any other persons designated by Seller as an additional insured and with an insurer and insurance limits (minimum of $2 million) and coverage satisfactory to Seller. After the Effective Date, ~~and upon reasonable prior notice to Seller and after obtaining Seller’s advance written approval in each instance, Buyer~~ Lessee shall be permitted to speak and meet with ~~Tenant~~ the Tenants in connection with ~~Buyer~~Lessee’s due diligence. Upon signing this ~~agreement~~Agreement, ~~Seller~~ Lessor shall provide ~~Buyer~~ Lessee with the name of a contact person(s) for the purpose of arranging site visits. ~~Buyer~~ Lessee shall give ~~Seller~~ Lessor reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property, and ~~Seller~~ Lessor may have a representative present during any and all examinations, ~~inspections, Tenant meetings~~ inspections and/or studies on the Property. ~~Buyer~~ Lessee shall have the unconditional right, for any reason or no reason, to terminate this Agreement by giving written notice thereof to ~~Seller~~ Lessor and the Escrow Agent prior to the expiration of the ~~First~~ Due Diligence Period, in which event this Agreement shall become null and ~~void~~void with respect to all Properties, ~~Buyer~~ Lessee shall receive a refund of the ~~Xxxxxxx~~ Exxxxxx Money, together with all interest earned thereon, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein. Lessee shall also have the right to terminate this Agreement with respect to any single Property if the Property subject to termination has specific material Lease, title, survey, property condition, zoning or environmental issues that a commercially reasonable lessee would not elect to close over, in which event this Agreement shall become null and void with respect to the terminated Property or Properties, Lessee shall receive a refund of the pro-rata portion of the Exxxxxx Money set forth on Schedule 1 attached hereto applicable to such terminated Property or Properties, and all rights, liabilities and obligations of the parties under this Agreement shall terminate with respect to (but only with respect to) such terminated Properties, except as otherwise expressly set forth therein. (c) In the event that the Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, such matters shall be completed or corrected by Seller unless Seller, Buyer and Tenant determine that it would be commercially unreasonable to complete or correct any such matters. Within two (~~d) Within five (5~~2) business days following the ~~Second Due Diligence Period Seller~~ Effective Date, Lessor shall request an Estoppel ~~Certificates~~ Certificate (~~and simultaneously provide Purchaser with a copy of such request~~defined below) from each Tenant and a ~~Waiver~~ written waiver of ~~Tenant’s~~ right of first refusal, ~~if any~~right of first offer or other purchase option that any party may have to purchase any Property. It shall be a condition of Closing that ~~Seller~~ Lessor shall have obtained an estoppel certificate ~~from Tenant~~ in the form attached hereto as Exhibit FF (each, ~~or Buyer shall also accept, in lieu of the form Exhibit F, any other estoppel certificate which is in the form of estoppel the tenant is obligated to deliver and has agreed to under its Lease (the~~ an “~~Tenant~~ Estoppel Certificate,” and collectively, “Estoppel Certificates”~~). Seller~~ ) from each Tenant, and Lessor shall use good faith efforts to obtain the same. ~~Seller~~ Each Estoppel Certificate obtained by Lessor shall be fully executed by the applicable Tenant and Guarantor(s), if any, and dated no earlier than thirty (30) days prior to the date of Closing. In addition, the business terms of each Estoppel Certificate must be in accordance with and not contradict the corresponding Lease. If any Lease and any amendments, bearing the original signatures of the landlord and tenant thereunder have not been delivered to Lessee previously, a copy thereof confirming that the copy is true, correct and complete shall be attached to the corresponding Estoppel Certificate. Lessor shall promptly deliver to ~~Buyer~~ Lessee photocopies or pdf files of ~~the~~ each executed ~~Tenant~~ Estoppel Certificate when ~~Seller~~ Lessor receives the same. (ed) ~~Seller~~ If the fee estate in any Property is encumbered by a mortgage that is not subordinate to the Ground Lease for such Property, it shall ~~use good faith efforts to obtain~~ be a ~~subordination, non-disturbance and attornment~~ condition of Closing that Lessor shall have obtained either: (i) a subordination agreement ~~from Tenant~~ in form and substance reasonably acceptable to ~~Buyer and Buyer’s Lender~~Lessee from the holder of such mortgage, if pursuant to which such mortgage will be subordinated to the applicable Ground Lease (~~the~~ each, a “~~SNDA~~Fee Mortgage Subordination”); or (ii) a release of lien of mortgage in form and substance reasonably acceptable to Lessee from the holder of such mortgage pursuant to which such Property is released from the lien of said mortgage (each, a “Fee Mortgage Release”). Within two (2) business days following the Effective Date, Lessor shall request the Fee Mortgage Subordination or Fee Mortgage Release from each such mortgagee. (e) Within two (2) business days following the Effective Date, Lessor shall deliver to Lessee the form of Ground Lease. Lessee and Lessor shall use good faith efforts to negotiate the final form of Ground Lease prior to the expiration of the Due Diligence Period. The Ground Lease for each Leasehold Property shall reflect the term, rent, rent escalations and renewal options applicable to such Leasehold Property described on Schedule 6(e) attached hereto and made a part hereof. (f) ~~Seller~~ Within two (2) business days following the Effective Date, Lessor shall deliver to Lessee the form of the Pinnacle Leases. Lessee and Lessor shall use good faith efforts to negotiate the final form of the Pinnacle Leases prior to the expiration of the Due Diligence Period. The Pinnacle Leases shall reflect the term, rent, rent escalations, suite number, square footage and renewal options applicable to such Property described on Schedule 6(f) attached hereto and made a part hereof. The Pinnacle Leases for the Bxxxx Property, Community Health Property, FOC Property (limited to the FOC Clinical Lease), Lxxxxx Property and Medical Sciences Property shall be triple-net (NNN). The Pinnacle Leases for the Bloom Property, FOC Property (limited to the FOC I Lease and the FOC II Lease) shall be double-net (NN). (g) Lessor shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested by ~~Buyer~~Lessee.

Appears in 1 contract

Samples: Lease Agreement (American Realty Capital Healthcare Trust II, Inc.)

Appears in 1 contract

Samples: Purchase and Sale Agreement (American Realty Capital Trust III, Inc.)

Common use of Examination of Property Clause in Contracts