Feasibility Condition. (a) Within five (5) days after the Effective Date, Seller shall deliver to Buyer all of the documents set forth on Exhibit A (the “Document Inventory”). Deliveries may be by electronic transmission or establishment of an online data room or file site. In addition, within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of Declaration of Covenants (the “Declaration of Covenants”) attached as Exhibit E, to be recorded prior to or at Closing by which the Property is allocated development rights under the West Maui Project District No. 1 (Kapalua) project district ordinance to the following: a maximum of 196 short-term rentable residential units; a maximum of 40,000 square feet of retail space; and a maximum of 20,000 square feet of administrative and/or common area space (collectively, the “Development Rights”). Within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of License Agreement described in Section 6.2. (b) Buyer shall have until 5:00 p.m. Hawaiian time on the last day of the Due Diligence Period to confirm, in Buyer’s sole and absolute discretion and Xxxxx’s sole expense, whether Buyer may feasibly acquire and use the Property for Buyer’s intended purpose. During the Due Diligence Period, Buyer shall have reviewed (or shall have had the opportunity to review) among other things: (i) the proposed improvements on the Property; (ii) the geological, soils and seismic conditions of the Property; (iii) all conditions and requirements imposed by governmental bodies having jurisdiction over the Property; and (iv) the viability of the Property for development or redevelopment. (c) If before the end of the Due Diligence Period, Buyer, in its sole and absolute discretion, determines to purchase the Property, Buyer shall notify Seller and Escrow Holder in writing (the “Acceptance Notice”). If Seller and Escrow Holder have not received an Acceptance Notice from Buyer before the end of the Due Diligence Period, Escrow shall terminate and the Initial Deposit shall be returned to Buyer as provided in paragraph 7.3, irrespective of any instruction or other communication, oral or written, from Seller. If Seller and Escrow receive an Acceptance Notice before the end of the Due Diligence Period, this feasibility condition shall be conclusively deemed satisfied in all respects including Buyer’s approval of each of the items set out in paragraph 3.2(b), and the Deposit(s) shall become non-refundable except in the event of a Default by Seller.
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Samples: Purchase and Sale Agreement (Maui Land & Pineapple Co Inc)
Feasibility Condition. (a) Within five (5) days after the Effective Date, Seller shall deliver to Buyer all of the documents set forth on Exhibit A (the “Document Inventory”). Deliveries may be by electronic transmission or establishment of an online data room or file site. In addition, within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of Declaration of Covenants (the “Declaration of Covenants”) attached as Exhibit E, to be recorded prior to or at Closing by which the Property is allocated development rights under the West Maui Project District No. 1 (Kapalua) project district ordinance to the following: a maximum of 196 short-term rentable residential units; a maximum of 40,000 square feet of retail space; and a maximum of 20,000 square feet of administrative and/or common area space (collectively, the “Development Rights”). Within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of License Agreement described in Section 6.2.
(b) 3.2.1 Buyer shall have until 5:00 p.m. Hawaiian time on the last day of the Due Diligence Period to confirm, confirm in Buyer’s 's sole and absolute discretion and Xxxxx’s discretion, at Buyer's sole expense, whether Buyer may feasibly acquire and use the Property for Buyer’s 's intended purpose. During the Due Diligence Period, Buyer shall shall, in addition to all other matters regarding the Property, have reviewed (or shall have had assumed the opportunity to reviewrisk of not reviewing) among other things: all of the following:
(ia) the proposed improvements on the Property; (ii) the geological, soils and seismic conditions physical condition of the Property; ;
(iiib) all conditions and requirements imposed by governmental bodies having jurisdiction over the title to Property; and (iv) the viability of the Property for development or redevelopment.;
(c) If before the availability of all necessary utilities and gravity sewers and storm drains for the Property;
(d) rental agreements, leases, service contracts, tax bills and other written agreements or notices which affect the Property to the extent furnished to Buyer;
(e) building inspection reports and engineering reports to the extent furnished to Buyer;
(f) the environmental condition of the Land and the Building, including the existence of toxic waste and hazardous substances; and
(g) the economic feasibility of Buyer's intended use of the Property.
3.2.2 By the end of the Due Diligence Period, Buyer, in its sole and absolute discretion, determines to purchase the Property, Buyer shall notify provide written notice to Seller and Escrow Holder in writing as to whether Buyer approves the feasibility of acquiring the Property (the “Acceptance either "Feasibility Notice”" or "Non-Feasibility Notice"). If Seller and Escrow Holder have not received an Acceptance receive a Feasibility Notice from Buyer before by the end of the Due Diligence Period, Escrow shall terminate and the Initial Deposit shall be returned to Buyer as provided in paragraph 7.3, irrespective or do not receive either form of any instruction or other communication, oral or written, from Seller. If Seller and Escrow receive an Acceptance Notice before the end of the Due Diligence Periodwritten notice, this feasibility condition shall be conclusively deemed satisfied in all respects including Buyer’s 's approval of each of the items set out in paragraph 3.2(b)Paragraph 3.
2.1. If Seller and Escrow Holder receive the Non-Feasibility Notice by the end of the Due Diligence Period, Escrow and this Agreement shall terminate, and the Deposit(sDeposit shall be returned to Buyer, as provided in Paragraph 6.3.
3.2.3 Within three (3) business days following the Effective Date, Seller shall become non-refundable except make available for Buyer's review, in the event offices of a Default by Seller's property manager or at the Building, originals or true copies of the following documents to the extent that such documents exist and are within the possession or control of Seller or any of its agents: all Leases, Contracts, Licenses and Permits, current tax and utility bills, surveys, plans and specifications, current operating and expense reports, environmental assessment reports, engineering reports, notices from governmental agencies, repair records and inspection and maintenance reports. Seller may, at its option and expense, provide copies of any or all of the aforesaid documents or materials in lieu of having Buyer examine the same at the offices of the property or at the Building.
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Feasibility Condition. (a) Within five (5) days after the Effective Date, Seller shall deliver to Buyer all of the documents set forth on Exhibit A (the “Document Inventory”). Deliveries may be by electronic transmission or establishment of an online data room or file site. In addition, within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of Declaration of Covenants (the “Declaration of Covenants”) attached as Exhibit E, to be recorded prior to or at Closing by which the Property is allocated development rights under the West Maui Project District No. 1 (Kapalua) project district ordinance to the following: a maximum of 196 short-term rentable residential units; a maximum of 40,000 square feet of retail space; and a maximum of 20,000 square feet of administrative and/or common area space (collectively, the “Development Rights”). Within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of License Agreement described in Section 6.2.
(b) 3.2.1 Buyer shall have until 5:00 p.m. Hawaiian time on the last day of the Due Diligence Feasibility Period to confirm, confirm (in Buyer’s 's sole and absolute discretion and Xxxxx’s discretion), at Buyer's sole expense, whether Buyer may feasibly acquire and use the Property for Buyer’s 's intended purpose. During the Due Diligence Feasibility Period, Buyer shall shall, in addition to all other matters regarding the Property, have reviewed (or shall have had assumed the opportunity risk of not reviewing) all of the following:
(a) the physical condition of the Property;
(b) the terms of the Ground Lease;
(c) the availability of all necessary utilities and gravity sewers and storm drains for the Property;
(d) rental agreements, Leases, subleases, service contracts, tax bills and other written agreements or notices which affect the Property to reviewthe extent available;
(e) among income and expense statements to the extent available;
(f) rent roll(s);
(g) whether Buyer's intended use of the Property is permitted by all applicable local, state and federal zoning ordinances, land use controls and regulations, and other things: rules, regulations and laws;
(h) the existing soil and environmental condition, both with regard to improvements, the Building, surface and subsurface, including the existence of toxic waste and hazardous substances;
(i) the proposed improvements on economic feasibility of Buyer's intended use of the Property;
(j) the ability of Buyer to secure funds sufficient to purchase the Property;
(k) the type and nature of the tenants;
(l) any existing, pending or threatened proceedings for condemnation (if any);
(m) property tax bills for the Property; and
(iin) the geological, soils and seismic conditions of any other matters which are or may be relevant to Buyer's decision whether or not to purchase the Property; (iii) all conditions and requirements imposed by governmental bodies having jurisdiction over the Property; and (iv) the viability of the Property for development or redevelopment.
(c) If before 3.2.2 By the end of the Due Diligence Feasibility Period, Buyer, in its sole and absolute discretion, determines to purchase the Property, Buyer shall notify provide written notice to Seller and Escrow Holder in writing as to whether Buyer approves the feasibility of acquiring the Property (the “Acceptance either "Feasibility Notice”)" or "Non-Feasibility Notice") . If Seller and Escrow Holder have not received an Acceptance receive a Feasibility Notice from Buyer before by the end of the Due Diligence Period, Escrow shall terminate and the Initial Deposit shall be returned to Buyer as provided in paragraph 7.3, irrespective of any instruction or other communication, oral or written, from Seller. If Seller and Escrow receive an Acceptance Notice before the end of the Due Diligence Feasibility Period, this feasibility condition shall be conclusively deemed satisfied in all respects including Buyer’s 's approval of each of the items set out in paragraph 3.2(b)Paragraph 3.2.1, upon which Buyer shall deliver the Additional Deposit to Escrow Holder. If Seller and Escrow Holder do not receive either form of written notice, or receive the Non-Feasibility Notice, by the end of the Feasibility Period, Escrow and this Agreement shall terminate, and the Deposit(s) Deposit shall become non-refundable except be returned to Buyer, as provided in the event of a Default by SellerParagraph 6.3.
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Feasibility Condition. (a) Within five (5) days after the Effective Date, Seller shall deliver to Buyer all of the documents set forth on Exhibit A (the “Document Inventory”). Deliveries may be by electronic transmission or establishment of an online data room or file site. In addition, within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of Declaration of Covenants (the “Declaration of Covenants”) attached as Exhibit E, to be recorded prior to or at Closing by which the Property is allocated development rights under the West Maui Project District No. 1 (Kapalua) project district ordinance to the following: a maximum of 196 short-term rentable residential units; a maximum of 40,000 square feet of retail space; and a maximum of 20,000 square feet of administrative and/or common area space (collectively, the “Development Rights”). Within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of License Agreement described in Section 6.2.
(b) 3.2.1 Buyer shall have until 5:00 p.m. Hawaiian time on the last day of the Due Diligence Feasibility Period to confirm, in Buyer’s 's sole and absolute discretion discretion, and Xxxxx’s at Buyer's sole expense, whether Buyer may feasibly acquire and use the Property for Buyer’s 's intended purpose. During the Due Diligence Feasibility Period, Buyer shall shall, in addition to all other matters regarding the Property, have reviewed (or shall have had assumed the opportunity risk of not reviewing) all of the following:
(a) the physical condition of the Property;
(b) the availability of all necessary utilities and gravity sewers and storm drains for the Property;
(c) the Leases;
(d) building inspection reports, roof inspection reports, building plans, HVAC inspection reports, soils reports, and engineering reports to reviewthe extent available;
(e) among income and expense statements to the extent available;
(f) all permits and all applicable local, state and federal zoning ordinances, land use controls and regulations, and other things: rules, regulations and laws;
(g) service contracts, tax bills and other written agreements or notices which affect the Property to the extent available;
(h) the existing soil and environmental condition, both with regard to improvements, the Buildings, surface and subsurface, including the existence of toxic waste and hazardous substances;
(i) the proposed improvements on economic feasibility of Buyer's intended use of the Property;
(j) the ability of Buyer to secure funds sufficient to purchase the Property; and
(iik) the geological, soils and seismic conditions of any other matters which are or may be relevant to Buyer's decision whether or not to purchase the Property; (iii) all conditions and requirements imposed by governmental bodies having jurisdiction over the Property; and (iv) the viability of the Property for development or redevelopment.
(c) If before 3.2.2 By the end of the Due Diligence Feasibility Period, Buyer, Buyer shall provide written notice to Seller and Escrow Holder as to whether Buyer approves (in its sole and absolute discretion, determines to purchase ) the Property, Buyer shall notify Seller and Escrow Holder in writing feasibility of acquiring the Property (the “Acceptance either "Feasibility Notice”" or "Non-Feasibility Notice"). If Seller and Escrow Holder have not received an Acceptance receive a Feasibility Notice from Buyer before by the end of the Due Diligence Period, Escrow shall terminate and the Initial Deposit shall be returned to Buyer as provided in paragraph 7.3, irrespective of any instruction or other communication, oral or written, from Seller. If Seller and Escrow receive an Acceptance Notice before the end of the Due Diligence Feasibility Period, this feasibility condition shall be conclusively deemed satisfied in all respects including Buyer’s 's approval of each of the items set out in paragraph 3.2(b)Paragraph 3.
2.1. If Seller and Escrow Holder do not receive either form of written notice, or receive the Non-Feasibility Notice, by the end of the Feasibility Period, Escrow and this Agreement shall terminate, and the Deposit(s) Deposit shall become non-refundable except be returned to Buyer, as provided in Paragraph 6.3.
3.2.3 Prior to the Close of Escrow, or in the event the Close of a Default Escrow never occurs, Buyer hereby agrees that any information (whether written or verbal), reports, materials, studies or other work product, which it now has or may obtain pursuant to the provisions of this Agreement, shall remain strictly confidential. Prior to the Close of Escrow, or in the event the Close of Escrow never occurs, Buyer shall use reasonable efforts not to reveal the existence or contents of any such items to any of its employees, agents, representatives, or affiliates (except as reasonably required in connection with Buyer's evaluation of the Property) or to governmental or quasi-governmental agencies or bodies. Buyer and Seller, for themselves and their affiliates, subsidiaries, agents, and employees and retained professionals, agree to keep this Agreement and all of its terms confidential both prior to Close of Escrow and to not make any public announcements or public disclosures or communicate with any media with respect to the subject matter hereof without the prior written consent of the other party (in their sole and absolute discretion), provided, however, that each party shall have the right to make such disclosures as are required by Sellerlaw, including but not limited to required disclosures to the Securities and Exchange Commission, the New York Stock Exchange (which disclosure of this entire Agreement shall be made in printed or electronic fashion), or needed for the transaction to occur (e.g., consultants, capital sources, affiliates, officers, directors, shareholders and employees) which disclosures shall not include, unless specifically required by law, the identity of the Seller or the Purchase Price.
3.2.4 BUYER ACKNOWLEDGES THAT (1) BUYER HAS RECEIVED COPIES OF THE ENVIRONMENTAL REPORTS LISTED ON EXHIBIT J ATTACHED HERETO (2) IF SELLER DELIVERS ANY ADDITIONAL ENVIRONMENTAL REPORTS TO BUYER, BUYER WILL ACKNOWLEDGE IN WRITING THAT IT HAS RECEIVED SUCH REPORTS PROMPTLY UPON RECEIPT THEREOF, AND (3) ANY ENVIRONMENTAL REPORTS DELIVERED OR TO BE DELIVERED BY SELLER OR ITS AGENTS OR CONSULTANTS TO BUYER ARE BEING MADE AVAILABLE SOLELY AS AN ACCOMMODATION TO BUYER AND MAY NOT BE RELIED UPON BY BUYER IN CONNECTION WITH THE PURCHASE OF THE PROPERTY. BUYER AGREES THAT SELLER SHALL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER FOR ANY INACCURACY IN OR OMISSION (EXCEPT FOR THE PARAGRAPH 9.1(C) REPRESENTATION AND WARRANTY) FROM ANY ENVIRONMENTAL REPORT. BUYER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO THE EXPIRATION OF THE INSPECTION PERIOD, ITS OWN INVESTIGATION OF THE ENVIRONMENTAL CONDITION OF THE PROPERTY TO THE EXTENT BUYER DEEMS SUCH AN INVESTIGATION TO BE NECESSARY OR APPROPRIATE.
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Feasibility Condition. (a) Within five (5) days after the Effective Date, Seller shall deliver to Buyer all of the documents set forth on Exhibit A (the “Document Inventory”). Deliveries may be by electronic transmission or establishment of an online data room or file site. In addition, within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of Declaration of Covenants (the “Declaration of Covenants”) attached as Exhibit E, to be recorded prior to or at Closing by which the Property is allocated development rights under the West Maui Project District No. 1 (Kapalua) project district ordinance to the following: a maximum of 196 short-term rentable residential units; a maximum of 40,000 square feet of retail space; and a maximum of 20,000 square feet of administrative and/or common area space (collectively, the “Development Rights”). Within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of License Agreement described in Section 6.2.
(b) 3.3.1 Buyer shall have until 5:00 p.m. Hawaiian time Central Standard Time, on the last day of the Due Diligence Period to confirm, in at Buyer’s sole and absolute discretion and Xxxxx’s sole expense, whether Buyer may feasibly acquire and use desires to purchase the Property for Buyer’s intended purposeProperty. During Prior to or on the last day of the Due Diligence Period, Buyer shall have reviewed (or the absolute right to terminate this Agreement as hereinafter set forth. Buyer shall have had the opportunity right to reviewreview and investigate, in addition to all other matters regarding the Property, including, but not limited to, all of the following:
(a) among the physical condition of the Property;
(b) title to the Property;
(c) the availability of all necessary utilities and gravity sewers and storm drains for the Property;
(d) leases, service contracts, tax bills and other thingswritten agreements or notices which affect the Property to the extent available;
(e) the Survey;
(f) the environmental condition of the Land and the Improvements, including the existence of toxic waste and hazardous substances; and
(g) the economic feasibility of Buyer’s intended use of the Property.
3.3.2 In connection with Buyer’s due diligence investigation, Seller shall, within five (5) business days of the Effective Date, furnish or make available to Buyer the documents and other items (the “Property Information”) listed on Exhibit K attached hereto and made a part hereof, to the extent any of such documents are in Seller’s possession.
3.3.3 Buyer has advised Seller that Buyer must cause to be prepared up to three (3) years of audited financial statements in respect of the Property in compliance with the policies of Buyer and certain laws and regulations, including, without limitation, Securities and Exchange Commission Regulation S-X. Seller agrees to use reasonable efforts to cooperate, at no cost or expense to Seller, with Buyer’s auditors in the preparation of such audited financial statements (it being understood and agreed that the foregoing covenant shall survive the Closing). Without limiting the generality of the preceding sentence: (i) the proposed improvements on Seller shall, during normal business hours, allow Buyer’s auditors reasonable access to such books and records maintained by Seller (and Seller’s manager of the Property) in respect solely of the Property as necessary to prepare such audited financial statements; (ii) Seller shall use reasonable efforts to provide to Buyer such financial information and supporting documentation as are necessary and related solely to the geological, soils and seismic conditions of the PropertyProperty for Buyer’s auditors to prepare audited financial statements; (iii) all conditions Seller will make available at reasonable times for interview by Buyer and requirements imposed by governmental bodies having jurisdiction over Buyer’s auditors the manager of the Property or other agents or representatives of Seller responsible for the day-to-day operation of the Property and the keeping of the books and records in respect of the operation of the Property; and (iv) if Seller has audited financial statements with respect to the viability Property, Seller shall promptly provide Buyer’s auditors with a copy of such audited financial statements. If after the Closing Date Seller obtains an audited financial statement in respect of the Property for development or redevelopment.
(c) If before a fiscal period prior to the end Closing Date that was not completed as of the Due Diligence PeriodClosing Date, then Seller shall promptly provide Buyer with a copy of such audited financial statement, and the foregoing covenant shall survive Closing. It shall be a condition precedent to the obligations of Buyer under this Agreement that Seller shall have complied with the covenants set forth in this Section 3.3.3 as of the Closing Date. The Property Information and all other information, other than matters of public record or matters generally known to the public, furnished to, or obtained through inspection of the Property by, Buyer, in its sole affiliates, lenders, employees, attorneys, accountants and absolute discretion, determines other professionals or agents relating to purchase the Property, will be treated by Buyer, its affiliates, lenders, employees and agents as confidential. However, notwithstanding the foregoing provisions or anything else to the contrary contained in this Agreement (i) Buyer may disclose such information to its consultants, attorneys, accountants, prospective investors and lenders, and others who need to know the information for the purpose of assisting Buyer in connection with the transaction that is the subject of this Agreement; (ii) the foregoing covenant of confidentiality shall not be applicable to any information published by Seller as public knowledge or otherwise available in the public domain; (iii) Buyer shall notify Seller be permitted to disclose such information as may be recommended by Buyer’s legal counsel in order to comply with all financial reporting, securities laws and Escrow Holder other legal requirements applicable to Buyer, including any required disclosures to the Securities and Exchange Commission; and (iv) any duty of confidentiality set forth in writing (the “Acceptance Notice”). If Seller and Escrow Holder have not received an Acceptance Notice from Buyer before the end of the Due Diligence Period, Escrow this Agreement shall terminate and the Initial Deposit shall be returned to Buyer as provided in paragraph 7.3, irrespective of any instruction or other communication, oral or written, from Seller. If Seller and Escrow receive an Acceptance Notice before the end of the Due Diligence Period, this feasibility condition shall be conclusively deemed satisfied in all respects including Buyer’s approval of each of the items set out in paragraph 3.2(b), and the Deposit(s) shall become non-refundable except in the event of a Default by Sellerupon Closing.
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