Negative Covenants of Seller On and as of the date hereof and at all times while this Agreement or the Transaction hereunder is in effect, Seller shall not without the prior written consent of Purchaser, which may be granted or denied at Purchaser’s sole and absolute discretion: (i) subject to Seller’s right to repurchase any Purchased Asset pursuant to the terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item; (ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Asset or other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser; (iii) create, incur, assume or suffer to exist any Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents; (iv) intentionally omitted; (v) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution), or sell all or substantially all of its assets (except in connection with the sale or securitization of the Purchased Assets in the ordinary course of Seller’s business after the repurchase thereof in accordance with this Agreement); (vi) permit a Change of Control; (vii) intentionally omitted; (viii) consent or assent to any Significant Modification other than in accordance with Article 29; (ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect; (x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; (xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder; (xii) use any part of the proceeds of any Transaction hereunder for any purpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and (xiii) directly, or through a Subsidiary, acquire or hold title to any real property.
COVENANTS PRIOR TO CLOSING 37 7.1 Access and Cooperation; Due Diligence...........................37 7.2 Conduct of Business Pending Closing.............................38 7.3
Affirmative Covenants of Seller (a) Seller, at Seller's sole cost and expense, shall until the earlier of, the Closing Date or termination of this Agreement, keep and perform or cause to be performed in all material respects: (i) all obligations of the lessor under the Leases, and (ii) all obligations of Seller under the Legal Requirements if Seller's failure to perform any of such Legal Requirements would adversely affect Seller's ability to consummate this Agreement. (b) From the date of Seller's acceptance hereof to the earlier of, the Closing Date or termination of this Agreement, Seller shall not do, suffer or permit or agree to do any of the following: (i) Enter into any transaction in respect to or affecting the Proper out of the ordinary course of business; (ii) Except for Seller's execution of New Leases, as provided in Section 4.3(e), sell, encumber, or grant any interest in the Property in any form or manner whatsoever, or otherwise perform or permit any act which will diminish or otherwise affect Purchaser's interest under this Agreement or in the Property, or which will prevent Seller's full performance of its obligations hereunder. (c) From the date of Seller's acceptance hereof to the earlier of the Closing Date or termination of this Agreement, upon reasonable advance notice from Purchaser (which notice shall be not less than one business day in advance and shall be two (2) business days in advance if Purchaser desires to inspect any occupied portions of the Improvements) Seller shall permit representatives, accountants, agents, employees, lenders, contractors, appraisers, architects and engineers designated by Purchaser (collectively "Permittees") access to and entry upon the Property to examine, inspect, measure and test the Property and access to the office of Seller to review Seller's books and records relating to the operation thereof. Seller shall have the right to require that a representative of Seller may accompany any or all of the Permittees. If Purchaser desires to conduct any environmental sampling or testing at the Property (other than a customary Phase 1 Environmental Report which involves no intrusive testing or sampling), Purchaser shall first provide Seller with the proposed study plan therefor ("Plan"). The Plan is subject to the approval of Seller and no environmental sampling or testing shall be performed until the Plan therefor has been approved by Seller. Purchaser agrees that Seller may have a representative present at any inspection, sampling or testing, including, but not limited to, an environmental engineer or consultant designated by Seller (in connection with any environmental sampling or testing conducted by Purchaser in accordance with this Section 7(c). At Seller's request, any sampling or testing by Purchaser's environmental consultant shall be conducted in a manner so as to provide "split" samples or data to Seller's environmental consultant. Purchaser does hereby indemnify and forever defend and hold Seller, its partners, agents, and employees harmless from any loss, liability, suit, action judgment, or claim (including, without limitation, any mechanics' liens which may be filed against the Property) which any of the indemnified parties may suffer or sustain as a result of the exercise by Purchaser of its rights (and that of its Permittees) to enter upon the Property or the office of Seller pursuant to this Section 7.1(c). Prior to any such entry, Purchaser (or its Permittees) will deliver to Seller a certificate of Commercial General Liability insurance naming Seller and its partners as additional insured thereunder in coverage amounts of not less than $1,000,000.00 per occurrence. If the Closing does not occur for any reason, Purchaser will restore (or cause to be restored), the Property to its former condition to the extent Purchaser or its Permittees have altered or damaged the Property in any manner. (d) Seller shall notify Purchaser promptly if Seller becomes aware of any transactions or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in Section 7.2 hereof not true in any material respect. (e) Any vacant rentable space in the Real Property will be placed into Rent Ready Condition which is defined to be that all walls are patched and freshly painted, each space to be demised has a fully-fixtured and operable bathroom, and all doors have locks and are operable, the ceiling is completed with acoustical tile and standard fluorescent lighting and the floor is in broom-clean condition. (f) Seller agrees to cooperate with Purchaser's accountants (at no cost or expense to Seller) relative to the performance by said accountants of an audit of Seller's books and records relating to the Property. If Purchaser's auditors shall request Seller to execute a representation letter addressed to the auditors and Seller and the auditors cannot agree on the content thereof, Purchaser may terminate this Agreement at any time prior to the Closing Date by written notice to Seller whereupon Purchaser shall obtain a return of the Deposit and Seller shall reimburse Purchaser for the actual costs of Purchaser's appraisal and environmental study to a maximum amount of $8,500.00 and this Agreement shall become null and void and of no further force or effect.
Covenants of Sellers Sellers covenant and agree as follows:
Covenants of Seller and Buyer Seller and Buyer each covenant with the other as follows:
Covenants of Seller Seller covenants and agrees with Buyer as follows:
COVENANTS OF BUYER AND SELLER Buyer and Seller agree that:
Affirmative Covenants of the Seller Parties Until the date on which the Aggregate Unpaids have been indefeasibly paid in full and this Agreement terminates in accordance with its terms, each Seller Party hereby covenants, as to itself, as set forth below:
Operations Prior to Closing (a) Seller agrees to operate the Property between the Execution Date and the Closing Date in the same general manner as Seller has operated the Property during the immediately preceding six (6) month period, paying all costs and expenses as they come due, and in any event prior to Closing, and maintaining all insurance coverage currently in force. (b) Seller shall comply with all of the obligations of landlord under the Leases and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after the Closing. (c) Seller shall notify Buyer promptly of Seller's receipt of any notice from any party alleging that Seller is in default of its obligations under any of the Leases or any Permit or agreement affecting the Real Property, or any portion or portions thereof. (d) No contract for or on behalf of or affecting the Real Property shall be negotiated or entered into which cannot be terminated by Seller upon the Closing without the payment of a specific charge, cost, penalty or premium for such termination. (e) Except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, Seller shall not enter into any new leases for any portion of the Real Property. Any new lease shall be on Buyer's customary form (which may vary to reflect customary negotiated revisions thereto), or such other form which is reasonably acceptable to Buyer. Further, except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, or as set forth above, Seller shall not amend, extend (except where required under the terms of the Lease in question), terminate (except by reason of a tenant's default), accept surrender of, or permit any assignments or subleases of, any of the Leases (except as may be required under such Lease), nor accept any rental more than one (1) month in advance (exclusive of any security deposit). (f) Seller shall not make or permit to be made any capital improvements or additions to the Real Property, or any portion thereof, without the prior written consent of Buyer, except those made by Seller pursuant to the express requirements of this Agreement, those made by tenants pursuant to the right to do so under their Leases, or by Seller if required by applicable law or ordinance, or as required under any Lease. (g) Seller shall timely xxxx all tenants for all rent billable under Leases, and use commercially reasonable efforts to collect any rent in arrears. (h) Seller shall notify Buyer of any tax assessment disputes (pending or threatened) prior to Closing, and from and after the Due Diligence Expiration Date, Seller not agree to any changes in the real estate tax assessment, nor settle, withdraw or otherwise compromise any pending claims with respect to tax assessments relating to the current or any subsequent year, without Buyer's prior written consent, which shall not be unreasonably withheld, delayed or conditioned. If any proceedings shall result in any reduction of assessment and/or tax for the tax year in which the Closing occurs, it is agreed that the amount of tax savings or refund for such tax year, less the reasonable fees and disbursements in connection with such proceedings, shall be apportioned between the parties as of the date real estate taxes are apportioned under this Agreement. All refunds relating to any tax year prior to the Closing shall be the sole property of Seller, and all refunds relating to any year subsequent to the year in which Closing occurs shall be the sole property of Buyer. Each party agrees to promptly remit to the other any refund received by it which is the property of the other. (i) Seller shall notify Buyer promptly of the occurrence of any of the following: (i) Receipt of notice from any governmental or quasi-governmental agency or authority or insurance underwriter relating to the condition, use or occupancy of the Real Property, or any portion thereof; (ii) Receipt of any notice of default from any tenant or from the holder of any lien or security interest in or encumbering the Real Property, or any portion thereof; (iii) Notice of any actual or threatened litigation against Seller or affecting or relating to the Real Property, or any portion thereof which may materially and adversely affect the Real Property or Seller's ability to consummate the transactions contemplated by this Agreement; and (iv) Vacancy of any demised Property by a tenant, other than in accordance with a scheduled lease termination.
Covenants Pending Closing (a) From the date hereof until the Closing, each Contributor agrees that with respect to itself and not to any other Contributor, it shall not: (i) Sell, transfer (or agree to sell or transfer) or otherwise dispose of, or cause the sale, transfer or disposition of (or agree to do any of the foregoing) all or any portion of its Company Interests; or (ii) Mortgage, pledge or encumber (or permit to become encumbered) all or any portion of its Company Interests. (b) From the date hereof through the Closing, each Contributor shall, to the extent within his or its control, cause the Company and the Entity to conduct its business in the ordinary course of business, consistent with past practice, and shall, to the extent within his or its control, not permit the Company or the Entity, without the prior written consent of Acquirer, to: (i) Enter into any material transaction not in the ordinary course of business of such entity: (ii) Except as contemplated by the Second Contribution Agreement, sell, transfer or dispose of, or cause the sale, transfer or disposition of (or agree to do any of the foregoing) any assets of such entity, except in the ordinary course of business consistent with past practice; (iii) Mortgage, pledge or encumber (or permit to become encumbered) any assets of such entity, except (A) liens for taxes not due, (B) purchase money security interests in the ordinary course of such entity's business, and (C) mechanics' liens being disputed by such entity in good faith and by appropriate proceeding in the ordinary course of such entity's business (provided such mechanics liens are released prior to or on the Closing Date at no cost to the Acquirer); (iv) Amend, modify or terminate any Lease, contract or other instruments relating to the Property to which such entity is a party, except in the ordinary course of the entity's business consistent with past practice; (v) Cause or permit the Entity to change the existing use of the Property; (vi) Cause or permit any entity to enter into any new Lease or terminate any existing Lease except in the ordinary course of the entity's business consistent with past practice; (vii) Cause or take any action that would render any of the representations or warranties regarding the Property as set forth herein untrue in any material respect; (viii) Terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (ix) Knowingly cause or permit the entity to violate or fail to use commercially reasonable efforts to cure any violation of any applicable laws; (x) Materially alter the manner of keeping such entity's books, accounts or records or the accounting methods therein reflected; or (xi) Make any distribution to its members except in the ordinary course of business of such entity, or as is contemplated by the Second Contribution Agreement. (c) From the date hereof until the Closing Date, the Contributors will afford to the officers and authorized representatives of the Acquirer access to all of the Company's and the Entity's books and records and will furnish the Acquirer with such additional financial and operating data and other information as to the business and properties of the Company and the Entity as the Acquirer may from time to time reasonably request. (d) Notwithstanding anything to the contrary contained herein, any failure by an Contributor to comply with or fulfill the covenants contained in this Section 3.1 shall not constitute an indemnifiable claim under Section 3.4 of this Agreement, but shall constitute an unfulfilled condition precedent pursuant to Section 5.1, provided such failure is identified to or otherwise becomes known to the Acquirer prior to Closing.