Loan Assumption. At Closing, Buyer shall assume the Seller’s obligations under the Existing Loan Documents to come due from and after Closing, and Buyer will acquire the Property subject to the Existing Loan and the Existing Loan Documents (other than Seller's Guaranty and Seller's Environmental Indemnity which will be replaced by a Guaranty and Environmental Indemnity from Buyer or its affiliate). (a) After the Effective Date, Buyer and Seller shall use commercially reasonable efforts to obtain the final written approval and consent of the Existing Lender for (i) the conveyance of the Property to Buyer subject to the rights and obligations under the Existing Loan and Existing Loan Documents, (ii) the Buyer’s assumption of all borrower obligations under the Existing Loan Documents, (iii) the release of Seller and any existing guarantor from all obligations under the Existing Loan Documents first arising or accruing subsequent to the Closing Date, and (iv) the form of an assignment and assumption agreement and related assumption documents mutually agreed to by Existing Lender, Seller and Buyer (collectively the “Lender Consent”). Seller shall reasonably cooperate with Buyer in its efforts to obtain the Lender Consent. Buyer shall promptly provide Seller and Existing Lender with all information reasonably requested by the Existing Lender in order to facilitate obtaining the Lender Consent. (b) Within five (5) business days after the Effective Date, Buyer agrees to provide Seller with all necessary documentation requested from Buyer, as proposed borrower, in order to permit Seller to submit the preliminary loan assumption request to the Existing Lender. Seller shall make application to the Existing Lender, at Buyer’s expense, within three (3) business days after receipt of the Buyer’s documentation. (c) Buyer agrees to order all reports required by the Existing Lender as part of the loan assumption process, including appraisal reports, environmental studies, and engineering reports within ten (10) days after request from the Existing Lender. Buyer shall send a copy of the submission and orders to Seller to evidence compliance with this requirement. In the event that Buyer does not provide such evidence to Seller, Seller shall have the right to terminate this Agreement at its sole discretion within five (5) business days after such ten (10) day deadline, in which event the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination). (d) At Closing, or otherwise upon request by the Existing Lender prior to Closing, Buyer shall timely pay and/or otherwise escrow any and all transfer fee(s) and or assumption fee(s) due and payable under the Existing Mortgages (the “Transfer Fee”), any incidental processing or application fees, any third party report fees, Existing Lender’s attorney fees, costs incurred by Existing Lender for appraisals (or updates thereto) required by Existing Lender, and any other out of pocket expenses incurred or to be incurred by Existing Lender (but not any fees incurred by Seller for its counsel) (collectively, the “Assumption Costs”). (e) In the event the Buyer fails to obtain the Existing Lender’s written consent to the conditional assumption of the Existing Loan by Buyer and the release of Seller and any guarantor from its obligations under the Loan Documents arising or accruing subsequent to the Closing Date (the “Preliminary Loan Assumption Approval”) prior to the end of the Inspection Period, the Inspection Period shall automatically extend for up to thirty (30) additional days solely for the purpose of obtaining the Preliminary Loan Assumption Approval. (f) In the event the Buyer fails to obtain the Preliminary Loan Assumption Approval prior to the end of the extended Inspection Period, this Agreement shall automatically terminate, in which event the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination). (g) In the event that Existing Lender shall only grant the Preliminary Loan Assumption Approval on the condition that modifications to the Existing Loan Documents be made which are not acceptable to Buyer in its reasonable discretion, then, in such event, Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination). (h) In the event that Existing Lender requires Buyer to assume all of Seller's obligations under the Existing Loan Documents regardless of when such obligations accrue (as opposed to Buyer assuming only those obligations under the Existing Loan Documents which are first payable or performable from and after Closing), and the Buyer and Seller are unable to agree on separate documentation between Buyer and Seller to cover such obligations, then the Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer, the Seller shall reimburse Buyer for its actual out of pocket expenses incurred prior to termination (including any Assumption Costs), but not in excess of $100,000.00 in any event, and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination). Buyer shall use commercially reasonable efforts to negotiate with Lender to obtain the appropriate scope of assumption prior to exercising its termination right pursuant to this paragraph
Appears in 1 contract
Samples: Real Estate Sale Agreement (Phillips Edison - ARC Shopping Center REIT Inc.)
Loan Assumption. At (i) that Seller shall not be in default under the Loan as of the date of Closing, (ii) that the Lender allows assumption of the Loan by Buyer, on such terms as are reasonably acceptable to Buyer (as determined by Buyer during the Due Diligence Period), and (iii) that Buyer receives the estoppel certificate, in form and substance reasonably acceptable to Buyer, described in Section 12 (b)(ix), hereof. (Buyer shall determine its satisfaction of the availability and form of the estoppel during the Due Diligence Period.) In the event such conditions are not satisfied as of the date of Closing, Buyer may terminate this Agreement by written notice to Seller prior to Closing, and upon any such termination the Xxxxxxx Money shall assume the Seller’s obligations immediately be returned to Buyer and this Agreement shall be null and void. Interest accrued but unpaid (and not yet due) under the Existing Note as of Closing shall be prorated between Buyer and Seller as of the date of Closing and thereafter paid by Buyer when due. Any prepaid charges under the Note and Loan Documents shall be pro rated to come due the date of Closing, with Seller receiving a credit for the portion relating to the period after the date of Closing and for the real estate tax escrow held by Lender in connection with the Loan. Buyer and Seller agree to cause affiliates that may have signed or may be required to sign guaranties or other Loan Documents, to execute and deliver the documents required to effect assumption of the Loan by Buyer. Notwithstanding any provision herein to the contrary, if, at any time, Lender rejects Buyer as the transferee of the Loan or if Lender fails to approve Buyer as transferee of the Loan on or before the date of Closing, or if Buyer and Lender are not able to reasonably agree upon the form of Loan assumption documents, either Buyer or Seller may elect to terminate this Agreement by delivery of written notice to the other, and upon such termination by Buyer or Seller, the Xxxxxxx Money and all interest, if any, earned thereon shall then immediately be returned to Buyer and this Agreement shall be null and void. Buyer hereby agrees, from and after the date of Closing, that it shall fully perform the obligations of Seller under the Loan Documents, and Buyer will acquire shall indemnify, defend and hold harmless Seller from and against any and all claims, actions, liabilities, liens, obligations, losses and costs (including without limitation reasonable attorneys’ fees) arising and accruing in connection with the Property subject to the Existing Loan and the Existing Loan Documents from and after the date of Closing, these obligations to survive Closing under this Agreement and shall not be merged with delivery of the Deed. Seller agrees to indemnify, defend and hold harmless Buyer (other than Seller's Guaranty and Seller's Environmental Indemnity which will be replaced by a Guaranty and Environmental Indemnity from Buyer or its affiliate).
nominee) from and against any and all claims, actions, liabilities, liens, obligations, losses and costs (aincluding without limitation reasonable attorneys’ fees) After arising and accruing in connection with the Effective DateLoan and the Loan Documents prior to the date of Closing, these obligations to survive Closing under this Agreement and shall not be merged with delivery of the Deed. Buyer and Seller shall use commercially reasonable also agrees to cooperate with Seller’s efforts to obtain the final written approval and consent release by Lender of the Existing Lender for (i) the conveyance of the Property to Buyer subject to the rights and obligations under the Existing Loan and Existing Loan Documents, (ii) the Buyer’s assumption of all borrower obligations under the Existing Loan Documents, (iii) the release any liability of Seller and any existing guarantor from all obligations under the Existing Loan Documents first arising or accruing subsequent to the Closing Date, and (iv) the form of an assignment and assumption agreement and related assumption documents mutually agreed to by Existing Lender, Seller and Buyer (collectively the “Lender Consent”). Seller shall reasonably cooperate with Buyer in its efforts to obtain the Lender Consent. Buyer shall promptly provide Seller and Existing Lender with all information reasonably requested by the Existing Lender in order to facilitate obtaining the Lender Consent.
(b) Within five (5) business days after the Effective Date, Buyer agrees to provide Seller with all necessary documentation requested from Buyer, as proposed borrower, in order to permit Seller to submit the preliminary loan assumption request to the Existing Lender. Seller shall make application to the Existing Lender, at Buyer’s expense, within three (3) business days after receipt of the Buyer’s documentation.
(c) Buyer agrees to order all reports required by the Existing Lender as part of the loan assumption process, including appraisal reports, environmental studies, and engineering reports within ten (10) days after request from the Existing Lender. Buyer shall send a copy of the submission and orders to Seller to evidence compliance with this requirement. In the event that Buyer does not provide such evidence to Seller, Seller shall have the right to terminate this Agreement at its sole discretion within five (5) business days after such ten (10) day deadline, in which event the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(d) At Closing, or otherwise upon request by the Existing Lender prior to Closing, Buyer shall timely pay and/or otherwise escrow any and all transfer fee(s) and or assumption fee(s) due and payable under the Existing Mortgages (the “Transfer Fee”), any incidental processing or application fees, any third party report fees, Existing Lender’s attorney fees, costs incurred by Existing Lender for appraisals (or updates thereto) required by Existing Lender, and any other out of pocket expenses incurred or to be incurred by Existing Lender (but not any fees incurred by Seller for its counsel) (collectively, the “Assumption Costs”).
(e) In the event the Buyer fails to obtain the Existing Lender’s written consent to the conditional assumption of the Existing Loan by Buyer and the release of Seller and any guarantor from its obligations under the Loan Documents arising or accruing subsequent to the Closing Date (the “Preliminary Loan Assumption Approval”) prior to the end of the Inspection Period, the Inspection Period shall automatically extend for up to thirty (30) additional days solely for the purpose of obtaining the Preliminary Loan Assumption Approval.
(f) In the event the Buyer fails to obtain the Preliminary Loan Assumption Approval prior to the end of the extended Inspection Period, this Agreement shall automatically terminate, in which event the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(g) In the event that Existing Lender shall only grant the Preliminary Loan Assumption Approval on the condition that modifications to the Existing Loan Documents be made which are not acceptable to Buyer in its reasonable discretion, then, in such event, Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(h) In the event that Existing Lender requires Buyer to assume all of Seller's obligations under the Existing Loan Documents regardless of when such obligations accrue (as opposed to Buyer assuming only those obligations under the Existing Loan Documents which are first payable or performable from and after the date of Closing), and the Buyer and Seller are unable to agree on separate documentation between Buyer and Seller to cover such obligations, then the Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer, the Seller shall reimburse Buyer for its actual out of pocket expenses incurred prior to termination (including any Assumption Costs), but not in excess of $100,000.00 in any event, and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination). Buyer shall use commercially reasonable efforts to negotiate with Lender to obtain the appropriate scope of assumption prior to exercising its termination right pursuant to this paragraph.
Appears in 1 contract
Samples: Eighth Amendment to Agreement (Inland Western Retail Real Estate Trust Inc)
Loan Assumption. At ClosingSeller shall deliver to Buyer, Buyer shall assume the Seller’s obligations under the Existing Loan Documents to come due from and within three (3) days after Closing, and Buyer will acquire the Property subject to the Existing Loan and the Existing Loan Documents (other than Seller's Guaranty and Seller's Environmental Indemnity which will be replaced by a Guaranty and Environmental Indemnity from Buyer or its affiliate).
(a) After the Effective Date, Buyer true and Seller shall use commercially reasonable efforts to obtain the final written approval and consent correct copies of all of the Existing Lender for (i) the conveyance of the Property to Buyer subject documents related to the rights and obligations under Loan listed on Exhibit "K" attached hereto (collectively, the Existing Loan and Existing "Loan Documents, (ii) "). In the Buyer’s assumption of all borrower obligations under the Existing Loan Documents, (iii) the release of Seller and any existing guarantor from all obligations under the Existing Loan Documents first arising event this Agreement has not been terminated on or accruing subsequent prior to the Closing Approval Date, and (iv) the form of an assignment and assumption agreement and related assumption documents mutually agreed to by Existing Lender, Seller and Buyer (collectively the “Lender Consent”). Seller shall reasonably cooperate with Buyer in its efforts to obtain the Lender Consent. Buyer shall promptly provide Seller and Existing Lender with all information reasonably requested by the Existing Lender in order to facilitate obtaining the Lender Consent.
(b) Within not later than five (5) business days after the Effective Approval Date, Buyer agrees to provide Seller with all necessary documentation requested from Buyer, as proposed borrower, in order to permit Seller to submit the preliminary loan assumption request to the Existing Lender. Seller shall make application to the Existing Lenderapplication, at Buyer’s expense, within three (3) business days after receipt of the Buyer’s documentation.
(c) Buyer agrees to order all reports required by the Existing Lender as part of the loan assumption process, including appraisal reports, environmental studies, and engineering reports within ten (10) days after request from the Existing Lender. Buyer shall send a copy of the submission and orders to Seller to evidence compliance with this requirement. In the event that Buyer does not provide such evidence to Seller, Seller shall have the right to terminate this Agreement at its sole discretion within five (5) business days after such ten (10) day deadlinecost and expense, in which event the Exxxxxx Money Deposit shall be returned to the Buyer appropriate parties in accordance with the Loan Documents for Lender’s approval (the "Lender's Approval") of a) Buyer's assumption of the Loan without material modification of the terms thereof, b) the release of Seller and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(d) At Closing, or otherwise upon request by the Existing Lender prior to Closing, Buyer shall timely pay and/or otherwise escrow Guarantor from any and all transfer fee(s) and or assumption fee(s) due and payable liability under the Existing Mortgages (Loan accruing from and after the “Transfer Fee”)Closing and c) Buyer's acquisition of the Property, any incidental processing or application fees, any third party report fees, Existing Lender’s attorney fees, costs incurred by Existing Lender for appraisals (or updates thereto) required by Existing Lender, and any other out of pocket expenses incurred or to be incurred by Existing Lender (but not any fees incurred by Seller for its counsel) all in accordance with the Loan Documents (collectively, the “Assumption CostsLoan Assumption”).
. Buyer shall make all reasonable efforts to timely provide Lender with any information reasonably requested in order to obtain the Lender's Approval. Buyer shall deliver written notice to Seller within one (e1) business day after (i) Buyer's receipt of written notice from Lender evidencing the Lender's Approval (ii) Buyer's receipt of written notice from Lender evidencing Lender's rejection of the Loan Assumption (a "Rejection Notice"), or (iii) Buyer’s notifying Lender in writing that Buyer withdraws Buyer's request for Lender’s Approval (a "Withdrawal Notice"). Buyer shall reasonably comply with all requirements set by Lender for the Loan Assumption; provided that such does not include any material change to the terms of the Loan. Seller shall reasonably cooperate with Buyer and use commercially reasonable and diligent efforts in connection with all applications and submittals in connection with the Loan Assumption. In the event the Buyer fails to obtain the Existing Lender’s written consent Approval, notwithstanding the terms of this Agreement to the conditional assumption contrary, the Loan Assumption will not occur at Closing and Buyer shall be responsible for and pay all fees and costs associated with a defeasance of the Existing Loan by Buyer and the release of Seller and any guarantor from its obligations under the Loan Documents arising or accruing subsequent to the Closing Date (the “Preliminary Loan Assumption Approval”) prior to the end of the Inspection Period, the Inspection Period shall automatically extend for up to thirty (30) additional days solely for the purpose of obtaining the Preliminary Loan Assumption Approvalat Closing.
(f) In the event the Buyer fails to obtain the Preliminary Loan Assumption Approval prior to the end of the extended Inspection Period, this Agreement shall automatically terminate, in which event the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(g) In the event that Existing Lender shall only grant the Preliminary Loan Assumption Approval on the condition that modifications to the Existing Loan Documents be made which are not acceptable to Buyer in its reasonable discretion, then, in such event, Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(h) In the event that Existing Lender requires Buyer to assume all of Seller's obligations under the Existing Loan Documents regardless of when such obligations accrue (as opposed to Buyer assuming only those obligations under the Existing Loan Documents which are first payable or performable from and after Closing), and the Buyer and Seller are unable to agree on separate documentation between Buyer and Seller to cover such obligations, then the Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer, the Seller shall reimburse Buyer for its actual out of pocket expenses incurred prior to termination (including any Assumption Costs), but not in excess of $100,000.00 in any event, and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination). Buyer shall use commercially reasonable efforts to negotiate with Lender to obtain the appropriate scope of assumption prior to exercising its termination right pursuant to this paragraph
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Loan Assumption. At Closing, Buyer shall assume the Seller’s obligations under the Existing Loan Documents to come due from and after Closing, and Buyer will acquire the Property subject to the Existing Loan and the Existing Loan Documents (other than Seller's Guaranty and Seller's Environmental Indemnity which will be replaced by a Guaranty and Environmental Indemnity from Buyer or its affiliate).
(a) After the Effective Date, Buyer and Seller shall use commercially reasonable efforts to obtain the final written approval and consent of the Existing Lender for (i) the conveyance of the Property to Buyer subject to the rights and obligations under the Existing Loan and Existing Loan Documents, Within ten (ii10) the Buyer’s assumption of all borrower obligations under the Existing Loan Documents, (iii) the release of Seller and any existing guarantor from all obligations under the Existing Loan Documents first arising or accruing subsequent to the Closing Date, and (iv) the form of an assignment and assumption agreement and related assumption documents mutually agreed to by Existing Lender, Seller and Buyer (collectively the “Lender Consent”). Seller shall reasonably cooperate with Buyer in its efforts to obtain the Lender Consent. Buyer shall promptly provide Seller and Existing Lender with all information reasonably requested by the Existing Lender in order to facilitate obtaining the Lender Consent.
(b) Within five (5) business days after the Effective Date, Seller will apply for and thereafter diligently pursue all approvals necessary for Buyer’s assumption (the “Loan Assumption”) of the first mortgage loan in the original principal balance of $19,900,000.00 (the “First Mortgage”) and the second mortgage loan in the original principal balance of $2,800,000.00 (the “Second Mortgage”) both encumbering the Property (collectively the “Mortgage Loan”). Seller will apply for the Loan Assumption of the Mortgage Loan, and Seller and Buyer agrees to provide Seller with all necessary documentation requested from Buyer, as proposed borrower, in order to permit Seller to will promptly submit the preliminary loan assumption request to the Existing LenderLender the necessary documents required for the Loan Assumption. Buyer will pay for all application fees and deposits required by the Lender pursuant to the application. Seller shall make application to will cooperate with Buyer and the Existing Mortgage Loan lender (the “Lender, at ”) in connection with the approval process. If Lender approves Buyer’s expense, within three (3) business days after receipt assumption of the Buyer’s documentation.Mortgage Loan (the “Assumption Approval”)
(a) Buyer will pay all costs, expenses and assumption fees charged by the Lender in connection with the Loan Assumption, (b) any escrow or reserve amounts held by the Lender will be assigned to Buyer and Seller will receive a credit at Closing equal to such amounts; (c) Buyer agrees to order all reports required by the Existing Lender as part other third-party costs or fees of the loan assumption process, including appraisal reports, environmental studies, will be paid by Buyer; and engineering reports within ten (10) days after request from the Existing Lender. Buyer shall send a copy of the submission and orders to Seller to evidence compliance with this requirement. In the event that Buyer does not provide such evidence to Seller, Seller shall have the right to terminate this Agreement at its sole discretion within five (5) business days after such ten (10) day deadline, in which event the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(d) At Closing, or otherwise upon request by Seller will received from Lender releases of Seller and any existing guarantors of the Existing Lender Mortgage Loan from liability (excluding any liability related to events occurring prior to Closing, Buyer shall timely pay and/or otherwise escrow the Closing and any and all transfer fee(senvironmental matters occurring prior to Closing that are commonly excluded from such a release) and or assumption fee(s) due and payable under the Existing Mortgages documents evidencing and securing the Mortgage Loan from Lender in a form acceptable to Seller (the “Transfer Fee”), any incidental processing or application fees, any third party report fees, Existing Lender’s attorney fees, costs incurred by Existing Lender for appraisals (or updates thereto) required by Existing Lender, and any other out of pocket expenses incurred or to be incurred by Existing Lender (but not any fees incurred by Seller for its counsel) (collectively, the “Assumption CostsReleases”).
(eii) In If Lender fails or refuses to provide the event Assumption Approval on or before 90 days after the Buyer fails to obtain the Existing Lender’s written consent to the conditional assumption of the Existing Loan by Buyer and the release of Seller and any guarantor from its obligations under the Loan Documents arising or accruing subsequent to the Closing Effective Date (the “Preliminary Loan Assumption ApprovalApproval Deadline Date”), Buyer may either (i) elect to extend the Loan Approval Deadline Date by 30 days by giving written notice (at least10 days prior to the end of Closing Date) to Seller and the Inspection Period, the Inspection Period shall automatically extend for up Title Company; or (ii) elect to thirty (30) additional days solely for the purpose of obtaining the Preliminary Loan Assumption Approval.
(f) In the event the Buyer fails to obtain the Preliminary Loan Assumption Approval prior to the end of the extended Inspection Period, terminate this Agreement shall automatically terminateon or before 5:00 p.m. (Eastern time) on the Loan Approval Deadline Date, in which event case the Exxxxxx Money Deposit shall Deposit, will be returned to the Buyer and the parties shall neither party will have no any further rights or obligations under hereunder, except for those that expressly survive the termination of this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(g) In Agreement. If Buyer elects to extend the event that Existing Loan Approval Deadline Date, but Lender shall only grant fails or refuses to provide the Preliminary Loan Assumption Approval on or before the condition that modifications to the Existing extended Loan Documents be made which are not acceptable to Buyer in its reasonable discretion, then, in such eventApproval Deadline Date, Buyer shall have the right, on notice thereof to Seller, may elect to terminate this Agreement on or before 5:00 p.m. (Eastern time) on the Loan Approval Deadline Date as extended, in which event, case the Exxxxxx Money Deposit shall will be returned to the Buyer and the parties shall Buyer, and, thereafter, neither party will have no any further rights or obligations under hereunder, except for those that expressly survive the termination of this Agreement (except those indemnity and insurance obligations that specifically survive termination)Agreement.
(h) In the event that Existing Lender requires Buyer to assume all of Seller's obligations under the Existing Loan Documents regardless of when such obligations accrue (as opposed to Buyer assuming only those obligations under the Existing Loan Documents which are first payable or performable from and after Closing), and the Buyer and Seller are unable to agree on separate documentation between Buyer and Seller to cover such obligations, then the Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer, the Seller shall reimburse Buyer for its actual out of pocket expenses incurred prior to termination (including any Assumption Costs), but not in excess of $100,000.00 in any event, and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination). Buyer shall use commercially reasonable efforts to negotiate with Lender to obtain the appropriate scope of assumption prior to exercising its termination right pursuant to this paragraph
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Resource Real Estate Opportunity REIT II, Inc.)
Loan Assumption. At ClosingOn the Closing Date, Seller shall assign, and Buyer shall assume the assume, all of Seller’s right, title and interest in, and all of Seller’s obligations under and liabilities under, the Existing Loan Documents in the form of a loan assumption or transfer (“Loan Assignment”) pursuant to come due from and after Closing, the Loan Assumption Agreement. Seller and Buyer will acquire hereby acknowledge and agree that the Property Loan Assignment and Loan Assumption Agreement are subject to Lender’s approval. The date Lender approves of the Loan Assignment and executes and provides the Loan Assumption Agreement to Buyer shall be known as the “Loan Approval Date.” Buyer and Seller shall reasonably cooperate with each other and Lender in expediting the approval of the Loan Assignment and Loan Assumption Agreement. Buyer shall promptly furnish all information and shall cooperate with Seller in Seller’s direct communication with Lender. Buyer shall pay any (i) processing fees and expenses, (ii) application fees, (iii) Lender’s attorney fees and (iv) assumption fee imposed by Lender (up to 0% of the unpaid principal balance of the Existing Loan as of the Closing Date (the “Buyer Assumption Fee Cap”) and Seller shall be obligated to pay any amounts in excess of the Buyer Assumption Fee Cap) when due (collectively, the “Assumption Fees”). This obligation to pay the Assumption Fees shall survive closing or termination of this Agreement. Any deposits, reserves, escrows, holdbacks and/or similar amounts held by Lender in connection with the Existing Loan Documents shall be credited back to Seller at Closing and Buyer shall be responsible for replacing at Closing, such amounts as required by Lender. In connection with the Loan Assignment, the parties will endeavor in good faith to fully negotiate a definitive assignment and assumption agreement in a form and substance satisfactory to Buyer and Lender, which shall include, without limitation, the following (other than Seller's Guaranty and Seller's Environmental Indemnity which will be replaced by a Guaranty and Environmental Indemnity from Buyer or its affiliate).collectively, the “Loan Assumption Agreement”):
(a) After the Effective Date, Buyer The consent and Seller shall use commercially reasonable efforts to obtain the final written approval and consent agreement of the Existing Lender for to: (i) the conveyance of the Property by Seller to Buyer, (ii) an assumption by Buyer of all obligations and liabilities of Seller under or with respect to the Existing Loan that relate to events that occur on or after the Closing Date, (iii) a release of Seller and Seller’s principals from all obligations and liabilities with respect to the Existing Loan that relate to events that occur on or after the Closing Date, (iv) limit Buyer’s assumption of Seller’s obligations and liabilities to the period from and after the Closing Date, (v) Seller’s assignment to Buyer, and Buyer’s acceptance and assumption, of any escrowed sums; and (vi) the deletion of any “cross default”, “cross-collateralization” or other provision that is unacceptable to Buyer subject in Buyer’s sole and absolute discretion; and
(b) An estoppel from Lender stating (i) that the Existing Loan Documents listed on Exhibit I constitute all of the documents that evidence, secure or relate to the rights and obligations under the Existing Loan and Existing such Schedule shall also be attached to the Loan DocumentsAssumption Agreement, (ii) that Lender is the Buyer’s assumption owner and holder of all borrower obligations under the Existing Loan Documents, (iii) the release of that there is no uncured breach or default by Seller and nor any existing guarantor from all obligations event or circumstance that may result in a default under the Existing Loan Documents first arising or accruing subsequent (except to the extent a default is caused solely by the death of Xxxxxx Led Xxxx), (iv) the unpaid principal balance on the Existing Loan as of the Closing Date (which is estimated to be approximately $4,472,424.98) and the date through which all payments due under the Existing Loan Documents have been paid, (v) the amount of all escrowed sums as of the Closing Date, (vi) that there are no overdue installments of interest or principal under the Existing Loan Documents, and (ivvii) that the form Existing Loan Documents are in full force and effect; provided, however, to the extent Lender fails to provide any of an assignment and assumption agreement and related assumption documents mutually agreed to by Existing Lenderthe foregoing, Seller and Buyer (collectively the “Lender Consent”). Seller shall reasonably cooperate with Buyer in its efforts to obtain the Lender Consent. Buyer shall promptly provide Seller and Existing Lender with all information reasonably requested by the Existing Lender in order to facilitate obtaining the Lender Consent.
(b) Within five (5) business days after the Effective Date, Buyer agrees to provide Seller with all necessary documentation requested from Buyer, as proposed borrower, an estoppel certificate containing such information limited in order scope to permit Seller to submit the preliminary loan assumption request to the Existing Lender. Seller shall make application to the Existing Lender, at BuyerSeller’s expense, within three (3) business days after receipt of the Buyer’s documentationactual knowledge.
(c) Buyer agrees In the event that Lender refuses to order all reports required by limit Buyer’s assumption of Seller’s obligations and liabilities to the Existing Lender as part of period from and after the loan assumption process, including appraisal reports, environmental studiesClosing, and engineering reports within ten (10) days after request from the Existing Lender. notifies Buyer of such refusal, Buyer shall send a copy have the right to terminate this Agreement by delivery of written notice of termination on or before the submission and orders to Seller to evidence compliance with this requirementClosing Date. In the event that Buyer does not provide such evidence Lender refuses to release Seller and Seller’s principals from all obligations and liabilities with respect to the Existing Loan that relate to events that occur after the Closing Date, then Seller shall have the right to terminate this Agreement at its sole discretion within five (5) business days after such ten (10) day deadline, in which event the Exxxxxx Money Deposit shall be returned by delivery of written notice to the Buyer and the parties shall have no further rights on or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(d) At Closing, or otherwise upon request by the Existing Lender prior to Closing, Buyer shall timely pay and/or otherwise escrow any and all transfer fee(s) and or assumption fee(s) due and payable under the Existing Mortgages (the “Transfer Fee”), any incidental processing or application fees, any third party report fees, Existing Lender’s attorney fees, costs incurred by Existing Lender for appraisals (or updates thereto) required by Existing Lender, and any other out of pocket expenses incurred or to be incurred by Existing Lender (but not any fees incurred by Seller for its counsel) (collectively, the “Assumption Costs”).
(e) In the event the Buyer fails to obtain the Existing Lender’s written consent to the conditional assumption of the Existing Loan by Buyer and the release of Seller and any guarantor from its obligations under the Loan Documents arising or accruing subsequent to before the Closing Date (the “Preliminary Loan Assumption Approval”) prior to the end of the Inspection Period, the Inspection Period shall automatically extend for up to thirty (30) additional days solely for the purpose of obtaining the Preliminary Loan Assumption Approval.
(f) In the event the Buyer fails to obtain the Preliminary Loan Assumption Approval prior to the end of the extended Inspection Period, this Agreement shall automatically terminate, in which event the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(g) In the event that Existing Lender shall only grant the Preliminary Loan Assumption Approval on the condition that modifications to the Existing Loan Documents be made which are not acceptable to Buyer in its reasonable discretion, then, in such event, Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(h) In the event that Existing Lender requires Buyer to assume all of Seller's obligations under the Existing Loan Documents regardless of when such obligations accrue (as opposed to Buyer assuming only those obligations under the Existing Loan Documents which are first payable or performable from and after Closing), and the Buyer and Seller are unable to agree on separate documentation between Buyer and Seller to cover such obligations, then the Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer, the Seller shall reimburse Buyer for its actual out of pocket expenses incurred prior to termination (including any Assumption Costs), but not in excess of $100,000.00 in any event, and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination)Date. Buyer shall use commercially reasonable efforts to negotiate with Lender to obtain submit a complete loan assumption application within three (3) days of the appropriate scope of assumption prior to exercising its termination right pursuant to this paragraphEffective Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Healthcare Trust of America, Inc.)
Loan Assumption. At Closing, Buyer shall assume the Seller’s obligations under the Existing Loan Documents to come due from and after Closing, and Buyer will acquire the Property subject to the Existing Loan and the Existing Loan Documents (other than Seller's Guaranty and Seller's Environmental Indemnity which will be replaced by a Guaranty and Environmental Indemnity from Buyer or its affiliate).
(a) After the Effective Date, Buyer and Seller shall use commercially reasonable efforts to obtain the final written approval and consent of the Existing Lender for (i) the conveyance of the Property to Buyer subject to the rights and obligations under the Existing Loan and Existing Loan Documents, (ii) the Buyer’s assumption of all borrower obligations under the Existing Loan Documents, (iii) the release of Seller and any existing guarantor from all obligations under the Existing Loan Documents first arising or accruing subsequent to the Closing Date, and (iv) the form of an assignment and assumption agreement and related assumption documents mutually agreed to by Existing Lender, Seller and Buyer (collectively the “Lender Consent”). Seller shall reasonably cooperate with Buyer in its efforts to obtain the Lender Consent. Buyer shall promptly provide Seller and Existing Lender with all information reasonably requested by the Existing Lender in order to facilitate obtaining the Lender Consent.
(b) Within five (5) business days Business Days after the Effective Date, Buyer agrees to provide Seller with all necessary documentation requested from Buyer, as proposed borrower, in order to permit Seller to submit the preliminary loan assumption request to the Existing Lender. Seller shall make application to the Existing Lender, at Buyer’s expense, within three (3) business days after receipt of the Buyer’s documentation.
(c) Buyer agrees to order all reports required by the Existing Lender as part of the loan assumption processapplications (each, including appraisal reportsa “Loan Assumption Application” and collectively, environmental studiesthe “Loan Assumption Applications”), and engineering reports within ten (10) days after request from the Existing Lender. Buyer shall send a copy submit to the Assumed Loan Lenders completed Loan Assumption Applications in the form required by the applicable Assumed Loan Lender (together with all information and underlying documentation requested by such Assumed Loan Lender pursuant to the applicable Loan Assumption Application) for the consent and approval by the applicable Assumed Loan Lender of the submission indirect transfer of ownership of the borrowers and orders guarantors, as applicable, under each applicable Assumed Loan (each, a “Loan Assumption” and collectively, the “Loan Assumptions”). Prior to the Closing Date, Seller agrees to reasonably cooperate in good faith, at no third party costs to Seller and without subjecting Seller to evidence compliance any additional liability, with this requirement. In Buyer in connection with the event Loan Assumptions; provided that Buyer does not provide such evidence it is understood and agreed that costs of Seller’s (or the Acquired Entities’) counsel and similar internal costs to Seller, Seller shall have review documentation and the right to terminate this Agreement at its sole discretion within five (5) business days after such ten (10) day deadline, in which event the Exxxxxx Money Deposit like shall be returned borne by Seller.
(b) Buyer shall be responsible for and promptly pay any and all reasonable out- of-pocket fees, reimbursements, expenses and charges reasonably required in connection with the Loan Assumptions and which are paid or payable to the Assumed Loan Lenders or any rating agencies in connection with the consents, assumptions or the negotiations for entering into any of the Loan Assumption Documents (including any loan assumption and/or transfer fees and premiums, the Assumed Loan Lender’s attorneys’ fees, title insurance premiums and endorsement costs, documentation costs and fees associated with the Assumed Loan Lender’s underwriting and approval of Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(d) At Closing, or otherwise upon request by the Existing Lender prior to Closing, Buyer shall timely pay and/or otherwise escrow any and all transfer fee(s) and or assumption fee(s) due and payable under the Existing Mortgages (the “Transfer Fee”), any incidental processing or application fees, any third party report fees, Existing Lender’s attorney fees, costs incurred by Existing Lender for appraisals (or updates thereto) required by Existing LenderLoan Assumption, and any other out of pocket expenses incurred deposits, legal retainers or to be incurred by Existing Lender (but not any upfront fees incurred by Seller for its counselor charges) (collectively, the “Loan Assumption CostsFees”), regardless of whether this Agreement is terminated or the Loan Assumptions are consummated. Seller shall be responsible for Seller’s own attorneys’ fees related to the Loan Assumptions. Notwithstanding the foregoing, neither Seller nor Buyer shall be required to pay down any Assumed Loan Amounts as a condition to the consummation of the Loan Assumptions. Buyer’s obligation to pay the Loan Assumption Fees as set forth in this Section 6.4(b) shall survive the expiration or earlier termination of this Agreement.
(c) At Closing, provided that any Loan Assumptions occur, the Purchase Price will be reduced by the applicable Assumed Loan Amount as specified in Schedule 2.2(a) and Seller shall receive a credit for the then current balances held by the applicable Assumed Loan Lenders in escrow for taxes, insurance, replacement reserves, operating deficits, working capital and other reserves in connection with the applicable Assumed Loans.
(d) Prior to the Closing Date, Buyer shall diligently and in good faith pursue approval of the Loan Assumptions by the Assumed Loan Lenders (the “Loan Assumption Consents”) and Buyer shall keep Seller reasonably apprised of the status of any communications between Buyer and Assumed Loan Lenders. The form of each Loan Assumption Consent must be approved by Seller in its reasonable discretion. For all purposes of this Agreement, a “Loan Assumption Consent” will be deemed to be given at such time as the applicable Assumed Loan Lender has approved in writing the applicable Loan Assumption and formal assumption documentation satisfying the requirements of this Section 6.4 evidencing such Loan Assumption and the Assumed Loan Lender is prepared to execute and deliver such formal assumption documentation, with such amendments to the Assumed Loan Documents as are set forth on Schedule 6.4(d). Notwithstanding the foregoing, without the prior consent of Buyer, the Loan Assumption Consent shall not include any of the following terms (each, an “Adverse Modification”): (i) an increase in the interest rate currently stated in the notes under the Assumed Loans or increase in an amount of reserves required under the Assumed Loans (provided that any Assumed Loan Lender requiring reserves provided for in the applicable Assumed Loan Documents that had previously been expressly waived shall not be an Adverse Modification), (ii) a requirement to accelerate the pay down of the principal balance of the Assumed Loans other than as stated in the Assumed Loan Documents and/or (iii) any other modifications to the Assumed Loan Documents that would be considered by Buyer to be material in entering into loan agreements of a similar type, or would have an adverse effect on Buyer as indirect owner of borrower or guarantor thereunder in any material respect.
(e) In Without limiting the event the generality of this Section 6.4(e), Buyer fails to obtain the Existing Lender’s written consent shall
(i) promptly supply to the conditional assumption of Assumed Loan Lenders (A) all financial information with respect to Buyer, and its direct and indirect owners, as may be reasonably requested by the Existing Assumed Loan Lenders, (B) all documentation, supporting information and other items required by Buyer and the release of Seller and any guarantor from its obligations under Assumed Loan Documents or otherwise reasonably requested or reasonably required by the Assumed Loan Lenders in connection with the Loan Documents arising or accruing subsequent Assumptions, including without limitation, information necessary to the Closing Date (the “Preliminary Loan Assumption Approval”) prior to the end of the Inspection Periodsatisfy know your customer diligence and necessary organizational documents, the Inspection Period shall automatically extend for up to thirty (30) additional days solely for the purpose of obtaining the Preliminary Loan Assumption Approval.
(f) In the event the Buyer fails to obtain the Preliminary Loan Assumption Approval prior to the end of the extended Inspection Period, this Agreement shall automatically terminate, in which event the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(g) In the event that Existing Lender shall only grant the Preliminary Loan Assumption Approval on the condition that modifications to the Existing Loan Documents be made which are not acceptable to Buyer in its reasonable discretion, then, in such event, Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(h) In the event that Existing Lender requires Buyer to assume all of Seller's obligations under the Existing Loan Documents regardless of when such obligations accrue (as opposed to Buyer assuming only those obligations under the Existing Loan Documents which are first payable or performable from and after Closing), and the Buyer and Seller are unable to agree on separate documentation between Buyer and Seller to cover such obligations, then the Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer, the Seller shall reimburse Buyer for its actual out of pocket expenses incurred prior to termination (including any Assumption Costs), but not in excess of $100,000.00 in any event, and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination). Buyer shall use commercially reasonable efforts to negotiate with Lender to obtain the appropriate scope of assumption prior to exercising its termination right pursuant to this paragraphand
Appears in 1 contract
Samples: Membership Purchase Agreement
Loan Assumption. At ClosingOn or before the expiration of the Title Review Period, Buyer shall elect to either (a) assume the all of such Seller’s right, title and interest in, and all of such Seller’s obligations under and liabilities under, that certain existing mortgage loan to TST Jacksonville by Xxxxx Fargo Bank, N.A., as Trustee (“Lender”), in the approximate amount of $7,000,000 (“Existing Loan”) in the form of a loan assumption or transfer (“Loan Assignment”) pursuant to the "Assumption Agreement” (defined below) or (ii) defease the Existing Loan. The parties acknowledge that the Loan Documents to come due from and after Closing, and Buyer will acquire the Property Assignment is subject to the Existing Loan Lender’s approval and the Existing Loan Documents (other than Seller's Guaranty and Seller's Environmental Indemnity which will be replaced by a Guaranty and Environmental Indemnity from Buyer or its affiliate).
(a) After the Effective Date, Buyer and Seller shall agree to use commercially reasonable efforts to obtain the final written consent of Lender to such assumption, and the principal amount of the Loan assumed shall be applied as a credit to the Purchase Price. Seller shall provide to Buyer, within three (3) Business Days after the Effective Date, a complete loan transcript containing copies of all loan documents, title policies, surveys and other documents executed or prepared in connection with the Existing Loan to be assumed or defeased by Buyer hereunder (“Existing Loan Documents”). Within three (3) Business Days after Buyer’s election to either assume or defease the Existing Loan, the applicable Seller shall contact Lender and notify Lender such election and of the conveyance of the Property to Buyer. Buyer and Seller shall reasonably cooperate with each other and Lender in expediting the Loan Assignment or defeasance approval process. Buyer shall promptly furnish all information and consent pay all amounts reasonably requested by Lender in connection therewith and shall cooperate with Seller in Seller’s direct communication with Lender. Buyer shall pay any processing fees and expenses and any assumption fee (or any fees and expenses incurred in connection with prepayment or defeasance of the Existing Loan in the event that Buyer elects not to assume such Existing Loan) imposed by Lender for when due. In connection with the Loan Assignment, the parties will endeavor in good faith to fully negotiate an assumption agreement in form and substance satisfactory to Buyer and Lender (the “Assumption Agreement”) including:
(a) The consent and agreement of Lender to: (i) the conveyance of the Seller’s Respective Property by applicable Seller to Buyer subject to the rights and obligations under the Existing Loan and Existing Loan DocumentsBuyer, (ii) an assumption by Buyer of all obligations and liabilities of such Seller under or with respect to the Existing Loan that relate to events that occur on or after the Applicable Closing Date, (iii) a release of such Seller from all obligations and liabilities with respect to the Existing Loan that relate to events that occur on or after the Applicable Closing Date, (iv) Seller’s assignment to Buyer, and Buyer’s assumption acceptance and assumption, of the escrowed sums, and (v) the deletion of any “other indebtedness”, “cross-default”, “cross-collateralization” or other provision that is unacceptable to Buyer in Buyer’s reasonable discretion; and
(b) An estoppel from Lender stating (i) that the Existing Loan Documents constitute all borrower obligations under of the documents that evidence, secure or relate to the Existing Loan, (ii) that Lender is the owner and holder of the Existing Loan Documents, (iii) that there is no uncured breach or default by the release applicable Seller nor any event or circumstance that may result in a default under the Existing Loan Documents, (iv) the unpaid principal balance on the Existing Loan as of Seller the Applicable Closing Date (which is approximately $7,000,000) and any existing guarantor from the date through which all obligations payments due under the Existing Loan Documents first arising or accruing subsequent to have been paid, (v) the amount of all escrowed sums as of the Applicable Closing Date, (vi) that there are no overdue installments of interest or principal under the Existing Loan Documents, and (ivvii) the form of an assignment and assumption agreement and related assumption documents mutually agreed to by Existing Lender, Seller and Buyer (collectively the “Lender Consent”). Seller shall reasonably cooperate with Buyer in its efforts to obtain the Lender Consent. Buyer shall promptly provide Seller and Existing Lender with all information reasonably requested by that the Existing Lender Loan Documents are in order to facilitate obtaining the Lender Consent.
(b) Within five (5) business days after the Effective Date, Buyer agrees to provide Seller with all necessary documentation requested from Buyer, as proposed borrower, in order to permit Seller to submit the preliminary loan assumption request to the Existing Lender. Seller shall make application to the Existing Lender, at Buyer’s expense, within three (3) business days after receipt of the Buyer’s documentation.
(c) Buyer agrees to order all reports required by the Existing Lender as part of the loan assumption process, including appraisal reports, environmental studies, full force and engineering reports within ten (10) days after request from the Existing Lender. Buyer shall send a copy of the submission and orders to Seller to evidence compliance with this requirementeffect. In the event that Buyer does the Loan Assumption or defeasance, as applicable, is not provide such evidence to Sellercompleted by the Closing Date, Seller shall have the right to terminate this Agreement at its sole discretion within five (5) business days after such ten (10) day deadline, in which event the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations Sellers agree that specifically survive termination).
(d) At Closing, or otherwise upon request by the Existing Lender prior to Closing, Buyer shall timely pay and/or otherwise escrow any and all transfer fee(s) and or assumption fee(s) due and payable under the Existing Mortgages (the “Transfer Fee”), any incidental processing or application fees, any third party report fees, Existing Lender’s attorney fees, costs incurred by Existing Lender for appraisals (or updates thereto) required by Existing Lender, and any other out of pocket expenses incurred or to be incurred by Existing Lender (but not any fees incurred by Seller for its counsel) (collectively, the “Assumption Costs”).
(e) In the event the Buyer fails to obtain the Existing Lender’s written consent to the conditional assumption of the Existing Loan by Buyer and the release of Seller and any guarantor from its obligations under the Loan Documents arising or accruing subsequent to the Closing Date for the Jacksonville Properties shall be extended for such time as shall reasonably be necessary to either (i) complete the “Preliminary Loan Assumption Approval”or (ii) prior to the end of the Inspection Period, the Inspection Period shall automatically extend for up to thirty (30) additional days solely for the purpose of obtaining the Preliminary Loan Assumption Approval.
(f) In the event the Buyer fails to obtain the Preliminary Loan Assumption Approval prior to the end of the extended Inspection Period, this Agreement shall automatically terminate, in which event the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights defease or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination).
(g) In the event that Existing Lender shall only grant the Preliminary Loan Assumption Approval on the condition that modifications to prepay the Existing Loan Documents be made which are not acceptable to Buyer in its reasonable discretion, then, in such event, Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination)Loan.
(h) In the event that Existing Lender requires Buyer to assume all of Seller's obligations under the Existing Loan Documents regardless of when such obligations accrue (as opposed to Buyer assuming only those obligations under the Existing Loan Documents which are first payable or performable from and after Closing), and the Buyer and Seller are unable to agree on separate documentation between Buyer and Seller to cover such obligations, then the Buyer shall have the right, on notice thereof to Seller, to terminate this Agreement in which event, the Exxxxxx Money Deposit shall be returned to the Buyer, the Seller shall reimburse Buyer for its actual out of pocket expenses incurred prior to termination (including any Assumption Costs), but not in excess of $100,000.00 in any event, and the parties shall have no further rights or obligations under this Agreement (except those indemnity and insurance obligations that specifically survive termination). Buyer shall use commercially reasonable efforts to negotiate with Lender to obtain the appropriate scope of assumption prior to exercising its termination right pursuant to this paragraph
Appears in 1 contract
Samples: Agreement of Sale (Grubb & Ellis Healthcare REIT, Inc.)
