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.
Appears in 4 contracts
Samples: Agreement of Sale (Brandywine Realty Trust), Agreement of Sale (Brandywine Realty Trust), Agreement of Sale (Brandywine Realty Trust)
Operations Prior to Closing. Except as required by the Leases, and except as otherwise expressly provided herein (including subparagraph (g), below), until the Closing or earlier termination of this Agreement:
(a) Seller agrees to operate will not make any commitment on behalf of or which would be binding upon Buyer without first obtaining Buyer’s written consent (except as otherwise expressly provided herein and any commitment made at the Property between request of or with 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.approval of Buyer);
(b) Subject to the rights of Buyer under the Big Boulder Lease, Seller (i) will keep and maintain the Property in the same order, repair and condition as shall exist at the time of the execution of this Agreement, excepting improvements approved by Buyer, ordinary wear and tear and casualty damage, (ii) will not cause or permit any change in use or condition of the Property (except a Permitted Change) which shall violate or breach any laws, zoning ordinances or building permits nor commit any waste or nuisance, provided, however that submission of the Subdivision Application and pursuit of Subdivision Approval shall not constitute a violation of this provision, (iii) will promptly advise Buyer of any litigation, arbitration, or administrative hearing before any governmental agency concerning or affecting the Property arising or threatened after the Execution Date, and (iv) will maintain in full force and effect, and shall pay all premiums for, the Seller policies of insurance now in effect with respect to the Property; but Seller shall comply with all not be required to make any improvement to the presently-existing condition 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 will not sell, assign, or convey any right, title, or interest whatsoever in or to the Property or create or permit to exist any lien, encumbrance, or charge thereon without promptly discharging the same, except as otherwise expressly provided for herein;
(d) Subject to the rights of Buyer under the Big Boulder Lease, and except as otherwise approved by Buyer, Seller will not modify, amend, enter into or renew any lease, service contract or other obligation pertaining to the Property or the operation thereof without the prior written consent of Buyer, no contract for or on behalf of or affecting the Property shall notify be negotiated or entered into which cannot be terminated as of and after Closing without charge, cost, penalty, or premium, and no Lease shall be renewed, extended, modified or canceled (except as any Tenant shall be entitled under the present terms of its Lease) during its term, nor shall any new lease be executed without the prior written consent of Buyer. Any renewals or extension of existing Leases or new leases approved by Buyer promptly pursuant to this paragraph (d) shall be included within the term “Leases”. Seller shall not, without first obtaining the prior written consent of Buyer: (i) enter into any agreement not existing as of the Execution Date requiring Buyer to perform any work for or on behalf of any Tenant after the Closing Date; (ii) accept the surrender of any Lease except by reason of default on the part of the contractor or Tenant, or grant any material concession, or any rebate, allowance or free rent for any period from and after the Closing Date not provided for in any Lease as of the Execution Date; (iii) remove any Personal Property located in or on the Property, except as may be required for repair and replacement. All replacements shall be free and clear of liens and encumbrances and shall be of quality at least equal to the replaced items and shall be deemed included in this sale, without cost or expense to Buyer; provided that nothing contained herein shall require Seller to make any replacements except in the case of Seller's ’s removal of now-existing Personal Property.
(e) Seller shall observe and keep in full force and effect all licenses and permits now in effect with respect to the Property and shall perform all its obligations under, and shall not voluntarily terminate any Lease, or any other agreements that are necessary to carry on and conduct the present business being conducted upon the Property, and shall carry on and conduct such business in substantially the same manner as such business is now and has heretofore been carried on, including (but not limited to) maintenance of the insurance policies now in effect with respect to the Property.
(f) Seller promptly shall provide copies to Buyer upon Seller’s receipt hereafter of any any: notice from any party alleging that Seller is in default of its obligations under any of the Leases Leases, or any Permit permit or agreement affecting the Real Property, Property or any portion thereof; any tax xxxx, notice of assessment or portions thereof.
(d) No contract for notice of change in a tax rate or on behalf of or assessment affecting the Real Property shall be negotiated or entered into which cannot be terminated by Seller upon the Closing without the payment Property; any notice of a specific chargetaking or condemnation affecting or relating to the Property; any notice instituting or asserting any material claim, costaction, penalty investigation or premium for such termination.
(e) Except with proceeding affecting the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition Property; 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 notice from a Tenant 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)terminating, nor accept expanding or extending, or seeking to terminate, expand or extend its lease, or asserting any rental more than one (1) month in advance (exclusive material default on the part of the landlord thereunder; or any security deposit).
(f) Seller shall not make or permit to be made notice from any capital improvements or additions governmental authority asserting any violation of law with respect 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 Leasesnot, 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 Execution Date and during 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 yearcontinuance of this Agreement, without the consent of Buyer's prior written consent, which enter into any service contract regarding the Property, or renewal or extension thereof, unless each such contract or renewal or extension shall not be unreasonably withheld, delayed permit Seller to terminate such contract at 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 SellerDate, and all refunds relating to any year subsequent Seller shall terminate such contracts at or prior to the year Closing Date unless in which Closing occurs shall be the sole property of any instance otherwise expressly requested by 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 A copy of any of such service contract or renewal or extension thereof made by Seller after the following:
(i) Receipt of notice from any governmental or quasi-governmental agency or authority or insurance underwriter relating Execution Date shall promptly be delivered by Seller 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 terminationBuyer.
Appears in 3 contracts
Samples: Agreement of Sale (Peak Resorts Inc), Agreement of Sale (Peak Resorts Inc), Sale Agreement (Blue Ridge Real Estate Co)
Operations Prior to Closing. Except as required by the Leases, and except as otherwise expressly provided herein (including subparagraph (g), below), until the Closing or earlier termination of this Agreement:
(a) Seller agrees to operate will not make any commitment on behalf of or which would be binding upon Buyer without first obtaining Buyer’s written consent (except as otherwise expressly provided herein and any commitment made at the Property between request of or with 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.approval of Buyer);
(b) Subject to the rights of Buyer under the Xxxx Xxxxx Lease, Seller (i) will keep and maintain the Property in the same order, repair and condition as shall exist at the time of the execution of this Agreement, excepting improvements approved by Buyer, ordinary wear and tear and casualty damage, (ii) will not cause or permit any change in use or condition of the Property (except a Permitted Change) which shall violate or breach any laws, zoning ordinances or building permits nor commit any waste or nuisance, provided, however that submission of the Subdivision Application and pursuit of Subdivision Approval shall not constitute a violation of this provision, (iii) will promptly advise Buyer of any litigation, arbitration, or administrative hearing before any governmental agency concerning or affecting the Property arising or threatened after the Execution Date, and (iv) will maintain in full force and effect, and shall pay all premiums for, the Seller policies of insurance now in effect with respect to the Property; but Seller shall comply with all not be required to make any improvement to the presently-existing condition 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 will not sell, assign, or convey any right, title, or interest whatsoever in or to the Property or create or permit to exist any lien, encumbrance, or charge thereon without promptly discharging the same, except as otherwise expressly provided for herein;
(d) Subject to the rights of Buyer under the Xxxx Frost Lease, and except as otherwise approved by Buyer, Seller will not modify, amend, enter into or renew any lease, service contract or other obligation pertaining to the Property or the operation thereof without the prior written consent of Buyer, no contract for or on behalf of or affecting the Property shall notify be negotiated or entered into which cannot be terminated as of and after Closing without charge, cost, penalty, or premium, and no Lease shall be renewed, extended, modified or canceled (except as any Tenant shall be entitled under the present terms of its Lease) during its term, nor shall any new lease be executed without the prior written consent of Buyer. Any renewals or extension of existing Leases or new leases approved by Buyer promptly pursuant to this paragraph (d) shall be included within the term “Leases”. Seller shall not, without first obtaining the prior written consent of Buyer: (i) enter into any agreement not existing as of the Execution Date requiring Buyer to perform any work for or on behalf of any Tenant after the Closing Date; (ii) accept the surrender of any Lease except by reason of default on the part of the contractor or Tenant, or grant any material concession, or any rebate, allowance or free rent for any period from and after the Closing Date not provided for in any Lease as of the Execution Date; (iii) remove any Personal Property located in or on the Property, except as may be required for repair and replacement. All replacements shall be free and clear of liens and encumbrances and shall be of quality at least equal to the replaced items and shall be deemed included in this sale, without cost or expense to Buyer; provided that nothing contained herein shall require Seller to make any replacements except in the case of Seller's ’s removal of now-existing Personal Property.
(e) Seller shall observe and keep in full force and effect all licenses and permits now in effect with respect to the Property and shall perform all its obligations under, and shall not voluntarily terminate any Lease, or any other agreements that are necessary to carry on and conduct the present business being conducted upon the Property, and shall carry on and conduct such business in substantially the same manner as such business is now and has heretofore been carried on, including (but not limited to) maintenance of the insurance policies now in effect with respect to the Property.
(f) Seller promptly shall provide copies to Buyer upon Seller’s receipt hereafter of any any: notice from any party alleging that Seller is in default of its obligations under any of the Leases Leases, or any Permit permit or agreement affecting the Real Property, Property or any portion thereof; any tax xxxx, notice of assessment or portions thereof.
(d) No contract for notice of change in a tax rate or on behalf of or assessment affecting the Real Property shall be negotiated or entered into which cannot be terminated by Seller upon the Closing without the payment Property; any notice of a specific chargetaking or condemnation affecting or relating to the Property; any notice instituting or asserting any material claim, costaction, penalty investigation or premium for such termination.
(e) Except with proceeding affecting the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition Property; 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 notice from a Tenant 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)terminating, nor accept expanding or extending, or seeking to terminate, expand or extend its lease, or asserting any rental more than one (1) month in advance (exclusive material default on the part of the landlord thereunder; or any security deposit).
(f) Seller shall not make or permit to be made notice from any capital improvements or additions governmental authority asserting any violation of law with respect 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 Leasesnot, 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 Execution Date and during 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 yearcontinuance of this Agreement, without the consent of Buyer's prior written consent, which enter into any service contract regarding the Property, or renewal or extension thereof, unless each such contract or renewal or extension shall not be unreasonably withheld, delayed permit Seller to terminate such contract at 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 SellerDate, and all refunds relating to any year subsequent Seller shall terminate such contracts at or prior to the year Closing Date unless in which Closing occurs shall be the sole property of any instance otherwise expressly requested by 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 A copy of any of such service contract or renewal or extension thereof made by Seller after the following:
(i) Receipt of notice from any governmental or quasi-governmental agency or authority or insurance underwriter relating Execution Date shall promptly be delivered by Seller 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 terminationBuyer.
Appears in 3 contracts
Samples: Agreement of Sale (Peak Resorts Inc), Agreement of Sale (Peak Resorts Inc), Sale Agreement (Blue Ridge Real Estate Co)
Operations Prior to Closing. Between the date of this Agreement and the Closing Date (or Extended Closing Date):
(a) Seller agrees to operate may rent any apartment on 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 Premises now vacant or which becomes vacant prior to ClosingClosing and may extend or renew Existing Leases, provided such initial, extended or renewal term may not exceed one (1) year and maintaining all insurance coverage currently shall be effected on forms and under the terms in forceuse by Seller at the time of execution of this Agreement at a monthly rental equivalent to the market rent for that type of unit.
(b) Seller shall comply continue to operate, maintain and manage the Premises in the same manner as it has done in the past, until Seller gives possession to Buyer at Closing which includes complying with all landlord's obligations, and enforcement of the obligations of landlord tenant's obligations, 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 ClosingLeases.
(c) Except as provided in subparagraph (a) hereof, Seller shall notify Buyer promptly of Seller's receipt of will not enter into 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 Propertycontract for, or any portion or portions thereof.
(d) No contract for or on behalf of of, or affecting the Real Property shall be negotiated or entered into Premises which cannot be terminated by Seller Buyer upon the Closing thirty (30) days notice, without the payment of a specific cause and without charge, cost, penalty or premium premium.
(d) Without Buyer's consent, Seller will not voluntarily incur any obligations or liabilities for such terminationwhich the Buyer will be responsible following Closing and Seller will not voluntarily mortgage, pledge or subject the Premises to a consensual lien or other encumbrance; Buyer's consent to the foregoing shall not be unreasonably withheld or delayed as long as the transaction for which consent is requested is in the ordinary course of Seller's business and will not affect Seller's performance of its obligations under this Agreement.
(e) Except with the prior written consent of Buyer, which Buyer agrees it shall Seller will 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, remove or permit to be removed (without replacing same with items of equal utility and value) any assignments items of furniture, furnishings, fixtures, equipment or subleases of, other items of personal property owned by Seller from 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)apartment units within the Premises.
(f) Seller shall not make will maintain and renew all insurance policies affecting the Premises which are currently in force and effect 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 Leasereplace them with insurance policies providing comparable coverage.
(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.
Appears in 3 contracts
Samples: Agreement of Sale (Clover Income Properties L P), Agreement of Sale (Clover Income Properties Ii L P), Agreement of Sale (Clover Income Properties Iii Lp)
Operations Prior to Closing. (a) After the date of this Agreement and prior to the Closing, as to any of the Assets operated by Seller, Seller agrees to shall use, operate and maintain the Property between the Execution Date and the Closing Date Assets in substantially the same general manner in which they have been used, operated and maintained prior to this Agreement, in accordance with all applicable laws and regulations, in accordance with common industry standards and as a reasonable and prudent operator. During the period from the Effective Time until Closing, Seller has operated shall have no liability to Buyer for Claims sustained or liabilities incurred with respect to the Property during Assets, REGARDLESS OF THE SOLE, JOINT, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY, REGULATORY LIABILITY, STATUTORY LIABILITY, BREACH OF CONTRACT (EXCLUDING BREACH OF THIS AGREEMENT BY SELLER), BREACH OF WARRANTY OR OTHER FAULT OR RESPONSIBILITY OF SELLER OR ANY OTHER PERSON OR PARTY, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER. After the immediately preceding six (6) month period, paying all costs date hereof and expenses as they come due, and in any event prior to Closing, Seller may (without Buyer’s consent) enter into agreements or transactions in relation to the Assets which (a) individually involve a reasonably anticipated cost of less than $50,000, individually, and maintaining all insurance coverage currently in force.
do not impose any area of mutual interest, non-compete, drilling or surface restrictions, and (b) are entered into in the ordinary course of business, consistent with past practices. With Closing, Seller is relieved of and shall not be obligated for any expenditures attributable to periods after the Effective Time, and shall recover any such charges and expenses as part of the Closing Statement and Final Settlement Statement adjustments, as appropriate. Except with respect to those matters described above, if any material expenditure, contract or agreement is proposed or contemplated, Seller shall comply promptly submit such proposal to Buyer for concurrence with all Seller’s recommendation. Buyer will make any required election under its independent evaluation and, if the Closing occurs and such Assets are conveyed to Buyer, shall assume the cost and risk of any consequences which arise as a result of Buyer’s election to participate or Buyer’s failure to timely elect or election to not participate in or not approve an operation and not pay such expenditure, without regard to whether Closing occurs. Failure of Buyer to timely respond to an election request (which election request shall be provided to Buyer no later than ten (10) business days prior to the obligations of landlord under date such election must be made), shall be deemed an election by Buyer to accept and agree to the Leases proposed election proposed (and all other agreements and contractual arrangements affecting participate in 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 Propertyproposed operation). Additionally, after the execution of this Agreement and prior to Closing.
(c) , Seller shall have the right to make any changes, repairs or modifications to the Assets, and incur any related expenditure deemed necessary by Seller, insofar as the same is necessary to prevent or respond to an emergency involving serious risk of loss of or damage to life, property, or the environment, or maintain economic production from any Lease, Well or Unit. With regard to the preceding sentence, 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 as soon as possible of the Leases emergency and Seller’s response thereto and shall have the right to cause or any Permit effect such expenditure or agreement affecting the Real Propertyaction with or without Buyer’s approval, 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 and recover such costs in the Closing without the payment of a specific chargeStatement or Final Settlement Statement adjustments, 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 delayas appropriate. Prior to Closing, Seller shall not enter into any new leases for any portion (i) consult with and advise Buyer regarding all material matters concerning the operation, management, and administration of the Real Property. Any new lease shall be on Assets and (ii) obtain Buyer's customary form (which may vary to reflect customary negotiated revisions thereto)’s written approval before voting or making any election under any operating, unit, joint venture, or such other form which is reasonably acceptable to Buyersimilar agreement. Further, except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, or as set forth aboveFurthermore, 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 thereofwill not, without the prior written consent of Buyer, except those made by Seller pursuant (x) enter into any agreement or arrangement transferring, selling, abandon, forfeit, or encumbering any of the Assets, (y) grant any preferential or other similar right to purchase any of the Assets, enter into any areas of mutual interest, non-compete agreements, drilling or surface restrictions, (z) enter into any new production sales, gathering, transportation, treating, or processing contract extending beyond the Closing Date and not terminable on thirty (30) days’ notice or less, without penalty or liability, (aa) amend or terminate any Contract, (bb) take any other action or election with regard to the express requirements Assets equal to or in excess $50,000, net to the interest in the Assets to be conveyed Buyer. Promptly after execution of this Agreement, those made by tenants pursuant to Seller shall notify the holders of the Consents of the transactions contemplated herein and request their consent. Buyer shall have the right to do so under their Leasesreview and approve the form of such notices, 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 such approval not 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 Buyer and Seller each agree to reasonably cooperate with efforts to obtain 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 otherrequired Consents.
(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.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Rosetta Resources Inc.), Purchase and Sale Agreement (Comstock Resources Inc)
Operations Prior to Closing. (a) Seller covenants and agrees that between the date hereof and the Closing, Seller will:
4.01 Continue to operate the Property between the Execution Date and the Closing Date Resort as heretofore operated in the same general manner as Seller has operated normal course of business and in accordance with its customary business practices.
4.02 Perform required maintenance and replacements in accordance with its customary business practices.
4.03 Afford Buyer and its representatives full access to the Property during Resort and to Seller's books, records and files relating to the immediately preceding six (6) month period, paying all costs and expenses as they come dueResort, and make same available to Buyer whether they are located on or off the Property, at reasonable times, and without undue delay, up to and including the date of the Closing.
4.04 Pay, in the normal course of business, and, in any event event, prior to Closing, sums due for work, materials or services furnished or otherwise incurred in the ownership and maintaining all insurance coverage currently in force.
(b) Seller shall comply with all operation of the obligations Resort up to and including the date of landlord under Closing, except as otherwise specifically treated in 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 adjustment provisions of this Agreement. Not prepay any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Property, material item after the Closing.
(c) Seller shall notify Buyer promptly date 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 this Agreement without the payment of a specific charge, cost, penalty or premium for such termination.
(e) Except with the prior written consent of Buyer.
4.05 unreasonably withheld or delayed. Material agreements will include, without limitation, airline and travel agent commitments, automobile leases, or room or other facility commitments which Buyer agrees it shall not unreasonably withholdare discounted more than twenty-five percent (25%) from their full rates.
4.06 Not grant or transfer or permit the grant or transfer of any interest in the Resort or any item being sold pursuant to this Agreement, condition or delaygrant any executory rights in connection therewith, Seller shall not enter into any new leases except for any portion items being replaced with comparable items of equal or greater value in the Real Propertyordinary course of business.
4.07 Not discontinue compliance with governmental requirements applicable to the Resort.
4.08 Promptly advise Buyer of any threatened or actual litigation or governmental investigation or proceeding affecting the Resort, its licenses, its operation, or those persons materially involved in its operation. Any new lease It shall be on a condition precedent to Buyer's customary form (which may vary obligation to reflect customary negotiated revisions thereto), close that there shall be no such matters threatened or such other form which is reasonably acceptable pending at Closing having a potential significant and material adverse effect on the Resort or upon Seller's ability to convey the Resort 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 .
4.09 Not permit any assignments or subleases ofmaterial alteration, 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 structural modification or additions to the Real PropertyResort, except in the nature of ordinary maintenance.
4.10 Except for daily room rental agreements in the ordinary course of business, not create (or agree to create) any portion thereofcontract, grant, option, lease, covenant, restriction, easement, encumbrance or lien on or affecting the Resort, nor do anything negatively affecting title thereto, 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) 4.11 As a condition precedent to Buyer's obligation to close, Seller shall timely xxxx have duly performed all tenants for all rent billable under Leases, covenants and use commercially reasonable efforts other obligations 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, performed by 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 otherSection 4.
(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.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Ilx Inc/Az/), Purchase and Sale Agreement (Ilx Inc/Az/)
Operations Prior to Closing. (a) Seller agrees Except (i) as expressly contemplated or permitted by this Agreement, (ii) as required by applicable Legal Requirement; or (iii) as approved in advance by the other party hereto in writing, at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to operate occur of the Property between the Execution Date termination of this Agreement pursuant to Section 8 and the Closing Date Effective Time, each of the Company and Parent shall, (w) carry on its business in the usual, regular and ordinary course in substantially the same general manner as Seller has operated the Property during the immediately preceding six heretofore conducted and in compliance with all applicable Legal Requirements, (6x) month periodpay its debts and Taxes when due, paying in each case subject to good faith disputes over such debts or Taxes, (y) pay or perform all costs and expenses as they come material obligations when due, and in any event prior (z) use reasonable best efforts, consistent with past practices and policies, to Closing(A) preserve intact its present business organization, (B) keep available the services of its present officers and maintaining all insurance coverage currently in forceemployees and (C) preserve its relationships with customers, suppliers, distributors, licensors, licensees and others with which it has significant business dealings.
(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 Except (A) as expressly contemplated or permitted by which Seller is bound or to which the Real Propertythis Agreement, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after the Closing.
(cB) 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 by 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 consentparty hereto, which shall not be unreasonably withheld, delayed or conditioned. If any proceedings shall result in any reduction , at all times during the period commencing with the execution and delivery of assessment and/or tax for this Agreement and continuing until 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 earlier to occur of the date real estate taxes are apportioned under termination of this Agreement. All refunds relating Agreement pursuant to Section 8 and the Effective Time, neither the Company nor Parent shall, nor shall either of them cause or permit any tax year prior to the Closing shall be the sole property of Sellertheir respective Subsidiaries to, 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 do any of the following:
(i) Receipt propose to adopt any amendments to or amend its certificate of notice from any governmental incorporation or quasi-governmental agency bylaws or authority or insurance underwriter relating to the condition, use or occupancy of the Real Property, or any portion thereofcomparable organizational documents;
(ii) Receipt authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of any notice of default from any tenant options, warrants, other equity-based (whether payable in cash, securities or from the holder of any lien or security interest in or encumbering the Real Property, other property or any portion thereofcombination of the foregoing) commitments, subscriptions, rights to purchase or otherwise) any of its securities;
(iii) Notice amend any of its securities;
(iv) incur any indebtedness or guarantee any indebtedness for borrowed money or issue or sell any debt securities or guarantee any debt securities or other obligations of others or create a Encumbrance over any of its assets;
(v) declare, set aside or pay any dividend or other distribution of property in respect of any actual shares of capital stock, make any other actual, constructive or deemed distribution of property in respect of the shares of capital stock or effect or commit to any stock repurchase or redemption of its capital stock;
(vi) propose or adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of it;
(vii) forgive any loans of any party, including its employees, officers or directors or any employees, officers or directors;
(viii) increase the compensation payable or to become payable to its officers, employees or consultants, or grant any severance or termination pay to, or enter into any severance agreement with any director, officer, consultant or other employee, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any such director, officer, consultant or employee, except the parties may make any amendments to existing employee benefit plans to the extent necessary to maintain their compliance with applicable Legal Requirements (including any amendments necessary or desirable to comply with Section 409A of the Code so as to avoid the imposition of additional Tax with respect thereto) and the parties may make grants of equity awards as provided in Section 4.2(b)(ii) above;
(ix) acquire, sell, lease, license or dispose of any material property or assets in any single transaction or series of related transactions;
(x) except as may be required by applicable Legal Requirements or GAAP, make any change in any of the accounting principles or practices used by it;
(xi) make or change any material Tax election, adopt or change any Tax accounting method, settle or compromise any material Tax liability, or consent to the extension or waiver of the limitations period applicable to a material Tax claim or assessment;
(xii) enter into any Parent Material contract, as the case may be;
(xiii) amend in any material respect any Parent Material contract, as the case may be, or grant any release or relinquishment of any material rights under any Parent Material contract;
(xiv) sell, assign, transfer, license or sublicense, pledge or otherwise encumber any Parent Intellectual Property, as applicable (other than non-exclusive licenses in the ordinary course of business consistent with past practice);
(xv) acquire (by merger, consolidation or acquisition of stock or assets) any other Person or any equity interest therein;
(xvi) mortgage, pledge or subject to Encumbrance, any of its assets or properties;
(xvii) authorize, incur or commit to incur any new material capital expenditure(s);
(xviii) settle or compromise any pending or threatened litigation against Seller Legal Proceeding or affecting pay, discharge or relating satisfy or agree to pay, discharge or satisfy any Liability;
(xix) initiation of any material Legal Proceeding;
(xx) except as required by applicable Legal Requirements or GAAP, revalue in any material respect any of its properties or assets, including writing-off notes or accounts receivable other than in the ordinary course of business consistent with past practice;
(xxi) enter into a contract to do any of the foregoing or knowingly take any action which is reasonably expected to result in any of the conditions to the Real Propertyconsummation of the transactions contemplated hereby not being satisfied, or knowingly take any portion thereof action which may would make any of its representations or warranties set forth in this Agreement untrue or incorrect in any material respect, or that would materially and adversely affect the Real Property or Seller's impair its ability to consummate the transactions contemplated by this Agreement; and
(iv) Vacancy of any demised Property by a tenant, other than Agreement in accordance with a scheduled lease terminationthe terms hereof or materially delay such consummation.
Appears in 2 contracts
Samples: Merger Agreement (Nevaeh Enterprises Ltd.), Merger Agreement (Tres Estrellas Enterprises, Inc.)
Operations Prior to Closing. After the date of this Agreement and prior to the Closing, unless Seller and Buyer otherwise agree, Seller shall only enter into agreements or transactions in relation to the Assets which (ai) Seller agrees to operate the Property between the Execution Date individually involve a fair market value of less than Fifty Thousand United States dollars ($50,000.00), and the Closing Date (ii) are entered into in the same general manner as ordinary course of business consistent with past practices. Seller has operated shall not be obligated for any expenditures after the Property during execution of this Agreement or the immediately preceding six (6) month periodEffective Date, paying all costs whichever is the earlier, and shall recover any charges and expenses as they come duepart of the Final Settlement Statement adjustments as appropriate. Such charges and expenses include, but are not limited to, those incurred pursuant to the authority for expenditures (“AFEs”) listed on Exhibit B hereto. In the event that an expenditure for purposes other than day-to-day operations or those pursuant to the AFEs is proposed or contemplated, Seller shall submit such proposal to Buyer for concurrence. Buyer will assume the risk of any consequences which arise as a result of Buyer’s failure or refusal to participate in or approve and in any event pay such expenditure. Additionally, after the signing of this Agreement and prior to Closing, and maintaining all insurance coverage currently in force.
(b) Seller shall comply with all of have the obligations of landlord under the Leases and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound right to make any changes, repairs or to which the Real Propertymodifications, or incur any of themexpenditures deemed necessary by Seller to prevent or react to an emergency or environmental incident. With regard to the preceding sentence, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after the Closing.
(c) Seller shall notify attempt to secure Buyer’s consent prior to any such expenditure or action, however, Seller shall have the right to cause or effect such expenditure or action with or without such approval, acting as would any prudent operator under similar circumstances. Unless Buyer promptly of Seller's receipt of any notice from any party alleging that and 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 delayotherwise agree, Seller shall not enter into materially alter the Assets (other than the use of supplies and consumables) or remove any new leases for any portion improvements, equipment or property which comprise the Assets (other than the use of the Real Propertysupplies and consumables). 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 promptly notify Buyer of any tax assessment disputes (pending or threatened) prior material matter affecting the Assets known to Closing, and Seller which arises 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 date of this Agreement 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 date 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 otherClosing.
(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.
Appears in 1 contract
Operations Prior to Closing. Following the execution of this Agreement and until Closing:
(a) Seller agrees shall conduct the business of the Northeast Division in the ordinary course, shall maintain existing insurance for the Assets and the operation of the Northeast Division, and shall maintain the Assets in good operating condition, reasonable wear and tear excepted; provided, however, that Buyer's remedy for any failure of Seller to maintain the Assets in good operating condition shall be as provided in Section 7.14 hereof; and provided, further, that Seller shall make reasonable efforts to keep Inventory at an aggregate level of less than Three Million Seven Hundred Thousand Dollars ($3,700,000.00) unless in Seller's reasonable judgment a higher level is required 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 forceLocations properly.
(b) Seller shall comply not agree to any termination of (unless no consent or agreement of Seller is required in connection with all any termination), nor shall Seller amend or waive, any of the obligations of landlord under the Leases material terms and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or to which the Real Property, or conditions in any of themthe Material Contracts or other contracts and agreements to be transferred to Buyer without the written consent of Buyer, are subjectwhich consent shall not be unreasonably withheld or delayed; provided, and which will however, that termination of any Franchise Agreement upon default by the franchisee shall be binding upon Buyer or a lien upon such Real Property, as reasonably determined by Seller after the Closing.notice to Buyer;
(c) Seller shall notify Buyer promptly use best efforts to renew all Purchased Leases expiring prior to the closing on customary terms reasonably determined by Seller after notice to Buyer;
(d) Seller shall use its reasonable efforts to preserve existing relations with the landlords, tenants, franchises, Employees, suppliers and customers associated with business of Seller's receipt of any notice from any party alleging that Seller is in default the Northeast Division and the Assets and to comply with all of its obligations under any of this Agreement and to fulfill all 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.conditions precedent to Buyer's obligations;
(e) Except with Without the prior written consent of Buyer, which Buyer agrees it Seller shall not unreasonably withholdsell, condition assign, transfer, convey, mortgage, pledge or delayin any other way dispose of or encumber any of the Assets (other than the sale of Inventory in the normal course of business, assets replaced in the ordinary course of business with equivalent or superior assets, dispositions in the ordinary course of business of assets of immaterial value or unnecessary for the continued operation of any Location consistent with the manner in which it was operated during any period reflected in the Financial Information), materially change the manner in which the business of the Northeast division is presently conducted, materially change or alter any of the Locations or take any action that would materially diminish or adversely affect the business as presently conducted at any of the Locations. Except as permitted by the immediately preceding sentence, Seller shall not enter into materially alter the Assets or remove any new leases for any portion of improvements, equipment or property which comprise 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 Assets without 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).; and
(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 promptly notify Buyer of any tax assessment disputes (pending matter that would cause the representations and warranties set forth in Article IV hereof not to be materially true and correct as of the occurrence of such matter 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 otherClosing.
(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.
Appears in 1 contract
Samples: Asset Purchase Agreement (Dairy Mart Convenience Stores Inc)
Operations Prior to Closing. Between the date of this Agreement and Closing:
(a) Seller agrees shall, at its expense: perform all of its obligations under the Tenant Lease and shall use its best efforts to operate cause the Property between Tenant to perform all of its obligations under the Execution Date Tenant Lease; and cure (or cause the Closing Date in the same general manner as Seller has operated the Property during the immediately preceding six (6Tenant to cure) month period, paying all costs and expenses as they come due, and in notices of any event Violations and/or Defect Notices issued prior to Closing, and maintaining all insurance coverage currently in forceClosing .
(b) Seller shall comply with all not enter into any agreement to modify, amend or otherwise alter any of the obligations terms or provisions 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, Tenant Lease or any of them, are subject, the Service Agreements; 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 an new leases for any portion lease or other agreement with respect to the use or occupancy 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 Property and/or 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 maintenance thereof, without the prior written consent of Buyer.
(c) Seller shall perform all acts, except those made and shall make all payments, necessary to cause the representations and warranties of Seller in Section 8 of this Agreement to be true and correct.
(i) Buyer, its attorneys, accountants, architects, engineers and other representatives shall be afforded access to the Property and to all books, records and files relating thereto from time to time prior to Closing for the purposes of inspections, preparation of plans, taking of measurements, making of surveys, making of appraisals, and generally for the ascertainment of the condition of the Property, including but not limited to the physical and financial condition of the Property; and there shall be furnished to Buyer all plans and specifications, engineering reports, feasibility studies, operating statements, governmental permits and approvals, contracts, leases, surveys, title information and other documentation concerning the Property in the possession of Seller and/or Seller's management agent for the Property.
(ii) Buyer, its attorneys, accountants and other representatives, shall be permitted to make and are authorized to make any searches of governmental records as they deem necessary with respect to the Property; and Seller agrees fully to cooperate with Buyer and its attorneys and other representatives in this regard and to issue any consents or authorizations required therefor.
(iii) Buyer agrees to indemnify, defend and reimburse Seller for all costs, expenses (including, without limitation, attorney's fees, consultant and expert fees and court costs) loss and liabilities suffered or incurred by Seller as the result of any injuries to persons or properties caused by Buyer's entry upon the Property prior to Closing pursuant to the express requirements provisions of this Section 9(d) and Section 14(b)(ii)(D) below. The obligations of Buyer pursuant to this Section 9(d)(iii) shall survive Closing and/or any termination of this Agreement.
(e) Promptly after receipt thereof by Seller, those made by tenants pursuant Seller shall deliver to Buyer the following:
(i) a copy of any notice of default given or received under the Tenant Lease or the Service Agreements;
(ii) a copy of any tax xxxx, notice or statement of value, or notice of change in a tax rate affecting or relating to the right Property;
(iii) a copy of any notice of an actual or alleged Violation; and
(iv) a copy of any notice of Taking.
(f) Seller shall complete and deliver for execution by Tenant a written certification in the form of Exhibit C to do so under their Leases, or by this Agreement ("Tenant Estoppel Certificate"); and shall obtain an executed Tenant Estoppel Certificate (dated no more than ten (10) days prior to the Closing Date) from Tenant. Seller if required by applicable law or ordinance, or as required under any Leaseshall deliver to Buyer a copy of the executed Tenant Estoppel Certificate delivered to Seller promptly after receiving such certificate.
(g) Seller shall timely xxxx all tenants deliver for all rent billable under Leasesexecution by Tenant a Subordination, Non-Disturbance and use commercially reasonable efforts to collect any rent Attornment agreement in arrears.
the form required by Buyer's lender (h) "SNDA"); and Seller shall notify obtain an executed SNDA from Tenant. Seller shall deliver to 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 a copy of the date real estate taxes are apportioned under this Agreement. All refunds relating executed SNDA delivered 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 Seller promptly remit to the other any refund received by it which is the property of the otherafter receiving such SNDA.
(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.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (American Real Estate Investment Corp)
Operations Prior to Closing. 3.11.1 Between the date of the execution of this Agreement and the Closing Date, Seller, in accordance with its normal practices and procedures, will continue to maintain and to make all repairs and replacements to the Target Property so as to keep the Target Property in substantially its present condition, subject to ordinary wear and tear. Seller will continue to operate the Target Property in a commercially reasonable manner and in accordance with its normal past practices, standards and procedures from the date hereof through the Closing Date. Seller will not permit or suffer to exist any new encumbrance, charge or lien to be placed or claimed upon the Target Property unless such encumbrance, charge or lien has been approved in writing by Buyer or will be removed prior to the Closing Date.
3.11.2 Between the date of the execution of this Agreement and the Closing Date, without Buyer’s written consent, which will not be unreasonably withheld or delayed (such reasonableness requirement to apply only in the case of clauses (a) Seller agrees to operate or (b) hereof), Seller: will not (a) enter into or materially amend, modify, extend, renew or terminate, or apply any security deposits under, any leases, (b) enter into any other agreement affecting the Target Property between unless the Execution Date and same will terminate as of 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 premium, (c) sell, convey, assign, transfer, encumber or otherwise dispose of the Target Property or (i) prior to date which is two (2) Business Days prior to the Benchmark Date, make any material modifications to the Target Property, or (ii) on or after the date which is two (2) Business Days prior to the Benchmark Date, make any modifications to the Target Property, and (d) take any other action which may have an adverse effect upon the Target Property. Buyer’s approval of any such items will be deemed given with respect to any request described in clauses (a) or (b) hereof if Buyer has not disapproved the item within three (3) Business Days of request for such terminationapproval by Seller accompanied by all information reasonably necessary for Buyer to make an informed decision regarding the matter proposed to be approved. Any disapproval by Buyer shall be in writing and shall specify the reasonable grounds for disapproval.
(e) Except with 3.11.3 Between the prior written consent date of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delaythe execution of this Agreement and the Closing Date, Seller shall not enter into remove any new leases for any portion of personal property, fixtures or equipment located in 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 (Target Property except as may be required under for maintenance, repair and/or replacement or where such Lease), nor accept any rental more than one removal is commercially reasonable and in the ordinary course of management and operation of the Target Property. All replacements shall be (1a) month in advance (exclusive completed free and clear of any security deposit)liens and encumbrances, (b) of quality at least equal to the replaced items and (c) deemed included in the sale, without additional cost or expense to Buyer.
(f) 3.11.4 Seller shall not make or permit to be made take any capital improvements or additions action adverse to the Real Propertyproposed development of the Target Properties, including, without limitation, the granting of any easements or any portion thereofother interest in and to the Target Properties, without the prior written consent of Buyer, except those made which may be withheld by Buyer in its sole and absolute discretion.
3.11.5 Seller pursuant shall cause each party to any Debt and Other Obligations, in such party’s capacity as “Borrower” under the express requirements loan documents in connection therewith (“Borrower”), to perform its obligations under the such loan documents in all material respects; to not take any action (or fail to take any action) which, with or without the benefit of this Agreementany notice or cure rights provided for under the applicable loan documents, those made constitutes a material violation or breach by tenants pursuant to Borrower of any of its affirmative or negative covenants under such loan documents and materially and adversely affects Buyer’s assumption of the Assumed Debt as described in Section 3.3.8 hereof or 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 prepay the Northwestern Mutual Life Insurance Company Loan in accordance with the Northwestern Mutual Payoff Letters; 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 yearnot, without Buyer's ’s prior written consent, which shall not be unreasonably withheldin Buyer’s sole and absolute discretion, delayed (x) amend, supplement, terminate, extend or conditioned. If any proceedings shall result otherwise modify in any reduction material or adverse respect any loan documents or any of assessment and/or tax the terms or conditions of any Debt or Other Obligations, or (y) request any lender’s approval to take any action that, if consented to by such lender and taken by Borrower, would constitute any matter described in the foregoing clause; and keep Buyer reasonably apprised with respect to any material developments relating to the status of the Debt and Other Obligations, and shall, promptly following request by Buyer, provide to Buyer a written update as to Borrower’s dealings with the lender regarding Buyer’s pursuit of approval for the tax year assumption of the Debt and Other Obligations.
3.11.6 Seller shall use diligent, good faith efforts to obtain estoppel certificates from the Tenants of the Target Properties in which the Closing occurs, it is agreed that the amount form of tax savings or refund for such tax year, less the reasonable fees and disbursements in connection with such proceedings, Exhibit D attached hereto. A copy of each executed estoppel certificate received by Seller from a Tenant shall be apportioned between delivered by Seller to Buyer promptly after Seller receives such estoppel certificate from the parties applicable Tenant. An executed estoppel certificate that (a) is in substantially the prescribed form attached hereto as of Exhibit D or which is in the date real estate taxes are apportioned form expressly required under this Agreement. All refunds relating to any tax year an applicable Tenant Lease, (b) is not dated more than thirty (30) days prior to the Closing Maryland Law Vote (but in any case not more than forty-five (45) days prior to the Closing), (c) includes as an attachment thereto all documentation comprising the Tenant Lease, which is identical to the applicable Tenant Lease for such Tenant delivered to Buyer by Seller, (d) is consistent with the Rent Roll and (e) does not show any material adverse impacts on the applicable Target Property or Tenant Lease and otherwise meets the requirements of this Section 3.11.6 is hereinafter referred to as an “Acceptable Estoppel Certificate”. Buyer may object to any estoppel certificate which is not an Acceptable Estoppel Certificate or which discloses any fact which contradicts a material term of the applicable Tenant Lease or any representations or warranties of Seller made herein; provided, however, if Buyer does not object within five (5) Business Days of receipt of the estoppel certificate such estoppel certificate 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 otherdeemed an Acceptable Estoppel Certificate.
(i) 3.11.7 Notwithstanding the foregoing, nothing herein shall prevent Seller shall notify Buyer promptly of the occurrence of from operating, managing, maintaining, selling or taking any of the following:
(i) Receipt of notice from any governmental or quasi-governmental agency or authority or insurance underwriter relating other action with respect 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’s properties that are not Target Properties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mission West Properties Inc)
Operations Prior to Closing. Between the date of this Agreement of Sale and Closing hereunder;
(a) Seller agrees Buyer shall have the right to operate enter upon the Real Property between to inspect, appraise and perform any tests necessary or desirable to determine the Execution Date suitability and the Closing Date in adaptability of the same general manner Real Property for the Intended Use. After the date of this Agreement of Sale, Seller shall afford Buyer full and complete access to all of Seller's records and files relating to the Real Property which shall remain Seller's property until Closing. Buyer shall give at least verbal notice to Seller before entering the Real Property so Seller can accompany Buyer if it so desires. If Buyer’s inspection activities reveal potential violations of law, Buyer shall promptly notify Seller. The parties agree and acknowledge that Buyer shall not be responsible for any damage caused to any fields or crops as Seller has operated a result of the Property during the immediately preceding six (6) month period, paying all costs and expenses as they come dueBuyer’s exercise of its rights hereunder but Buyer shall be responsible for, and shall indemnify Seller from and against all other injuries to any person or damage to any personal property associated with Buyer’s testing activities at the Real Property. At Seller’s request, Buyer shall provide Seller with copies of all reports, investigations and testing activities performed by Buyer. Buyer shall carry liability insurance in any event an amount of Two Million ($2,000,000) Dollars with respect to such inspection and testing activities, naming Seller as an additional insured and shall deliver a certificate of insurance to Seller prior to Closing, and maintaining all insurance coverage currently in forceundertaking any inspection or testing activities on any part of the Real Property.
(b) Seller shall comply with all of the obligations of landlord under the Leases and all other agreements and contractual arrangements affecting continue to improve the Real Property by which Seller is bound or to which in accordance with the Real Property, or any requirements of them, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after the ClosingGovernmental Approvals.
(c) Seller shall notify Buyer promptly of Promptly after the receipt thereof by 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 deliver 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 copy of any tax assessment disputes (pending xxxx, notice or threatened) prior to Closingstatement of value, and from and after the Due Diligence Expiration Date, Seller not agree to any changes notice of change 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 rate affecting or relating to the Real Property, notice or claim of any portion thereof which may materially and adversely affect violation from any governmental authority or notice of any taking, affecting or relating to the Real Property or Seller's ability Property.
(d) Seller shall continue to consummate market the transactions contemplated by Lots upon the prices and terms existing as of the date of this Agreement; and, with any changes to such prices or terms to be approved by Buyer.
(ive) Vacancy Seller shall not enter into a Agreement of Sale for any demised Property by a tenant, other than in accordance with a scheduled lease terminationof the Model Lots without Buyer’s consent.
Appears in 1 contract
Samples: Agreement of Sale (Rottlund Co Inc)
Operations Prior to Closing. (a) After the date of this Agreement and prior to the Closing, to the extent within the control of Seller, Seller agrees to shall use, operate and maintain the Property between the Execution Date and the Closing Date Assets in substantially the same general manner as in which they have been used, operated and maintained prior to this Agreement. During the period from the Effective Time until Closing, Seller has operated shall have no liability to Buyer for Claims sustained or liabilities incurred with respect to the Property during Assets, REGARDLESS OF THE SOLE, JOINT, CONCURRENT OR COMPARATIVE NEGLIGENCE (BUT NOT SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), STRICT LIABILITY, REGULATORY LIABILITY, STATUTORY LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHER FAULT OR RESPONSIBILITY OF SELLER OR ANY OTHER PERSON OR PARTY. After the immediately preceding six (6) month period, paying all costs date hereof and expenses as they come due, and in any event prior to Closing, Seller may (without Buyer’s consent) enter into agreements or transactions in relation to the Assets which (a) individually involve a fair market value of less than $25,000, individually (net to Seller’s interest) or $100,000, in the aggregate (net to Seller’s interest) and maintaining all insurance coverage currently in force.
(b) are entered into in the ordinary course of business, consistent with past practices. With Closing, Seller is relieved of and shall not be obligated for any expenditures attributable to periods after the Effective Time, and shall recover any such charges and expenses as part of the Closing Statement and Final Settlement Statement adjustments, as appropriate. Except with respect to those matters described above, if any material expenditure, contract or agreement is proposed or contemplated, Seller shall comply submit such proposal to Buyer for concurrence with all Seller’s recommendation. Buyer will make any required election under its independent evaluation and shall assume the cost and risk of the obligations any consequences which arise as a result of landlord under the Leases Buyer’s election to participate or Buyer’s failure to timely elect or election to not participate in or not approve an operation and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or not pay such expenditure, without regard to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Propertywhether Closing occurs. Additionally, after the execution of this Agreement and prior to Closing.
(c) , Seller shall have the right to make any changes, repairs or modifications to the Assets, and incur any related expenditure deemed necessary by Seller, to prevent or react to an emergency involving serious risk of loss of or damage to life, property, or the environment. With regard to the preceding sentence, 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 as soon as possible of the Leases emergency and Seller’s response thereto and shall have the right to cause or any Permit effect such expenditure or agreement affecting the Real Propertyaction with or without Buyer’s approval, 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 and recover such costs in the Closing without the payment of a specific chargeStatement or Final Settlement Statement adjustments, 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 delayas appropriate. Prior to Closing, Seller shall not enter into any new leases for any portion (i) consult with and advise Buyer regarding all material matters concerning the operation, management, and administration of the Real Property. Any new lease shall be on Assets; and (ii) obtain Buyer's customary form (which may vary to reflect customary negotiated revisions thereto)’s written approval before voting under any operating, unit, joint venture, or such other form which is reasonably acceptable to Buyersimilar agreement. Further, except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, or as set forth aboveFurthermore, 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 thereofwill not, without the prior written consent of Buyer, except those made by Seller pursuant (x) enter into any agreement or arrangement transferring, selling, or encumbering any of the Assets; (y) grant any preferential or other similar right to purchase any of the express requirements Assets; or (z) enter into any new production sales contract extending beyond the Closing Date and not terminable on thirty (30) days’ notice or less. Promptly after execution of this Agreement, those made by tenants pursuant to Seller shall notify the holders of the Consents of the transactions contemplated herein and request their consent. Buyer shall have the right to do so under their Leasesreview and approve the form of such notices, 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 such approval not 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 Buyer and Seller each agree to reasonably cooperate with efforts to obtain 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 otherrequired consents.
(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.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Constellation Energy Partners LLC)
Operations Prior to Closing. (a) Seller agrees to operate Between the Property between date of the Execution Date execution of this Agreement and the Closing Date date of Closing:
8.1 Each Seller, in accordance with its normal practices and procedures, will continue to maintain and to make all repairs and replacements to its Property so as to keep such Property in substantially its present condition, reasonable wear and tear excepted and such Seller shall operate and manage such Property in the same general manner as such Property is currently operating. Each Seller has operated shall use commercially reasonable efforts to lease vacant space. Each Seller shall continue to expend funds budgeted or planned for advertising, maintenance and capital improvements with respect to its Property until Closing. Each Seller shall maintain and comply with the Property during applicable insurance policy set forth on Exhibit "L."
8.2 Each Seller shall terminate as of the immediately preceding six (6) month period, paying Closing all costs Service Agreements. Buyer shall cooperate with Sellers by indicating to the parties to such Service Agreements if Buyer intends to enter into similar agreements with such parties for the period from and expenses as they come due, and in after the date of Closing. In the event Sellers are unable to terminate any event such Service Agreements prior to the date of Closing, Sellers acknowledge that Buyer will not assume the same and maintaining all insurance coverage currently in force.
(b) Seller Sellers shall comply with all of the indemnify Buyer from any obligations of landlord under the Leases any such Service Agreements arising from 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 date of 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) 8.3 No contract for or on behalf of or affecting the Real any Property shall be negotiated or entered into which cannot be terminated by Seller upon the as of and after Closing without the payment of a specific charge, cost, penalty or premium for such termination.
(e) Except with premium, and no Telecommunication Agreement or Service Agreement shall be modified, without the prior written consent of Buyer, Buyer which Buyer agrees it shall not be unreasonably withhold, condition withheld or delay, delayed. If any Seller shall not enter into any contract and/or modify any Telecommunication Agreement or Service Agreement in accordance with the foregoing sentence, such Seller shall promptly provide to Buyer a copy of such executed contract and/or modified Telecommunication Agreement or Service Agreement. Prior to the Due Diligence Date, Sellers may renew, extend or modify, or enter into new leases with tenants, provided (i) each such renewal, extension, modification or new lease satisfies the lease conditions for any portion the Property to which such lease relates as set forth on Exhibit "Q" attached hereto and made a part hereof. The applicable Seller shall analyze the creditworthiness of the Real Property. Any proposed tenant in accordance with its standard leasing practices, and shall require such security for the proposed tenant's obligations as is commercially reasonable under the circumstances, (ii) such renewal, extension, modification or new lease provides that the lease shall be subordinate to any existing or future mortgages on Buyer's customary form (the Property to which may vary to reflect customary negotiated revisions thereto), or such other form which is reasonably acceptable to Buyer. Further, except with lease relates without the prior written consent execution 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 any further instrument on the terms part of the tenant, and (iii) such Seller(s) shall promptly provide to Buyer a copy of such executed renewal, extension, modification or new lease. On or following the Due Diligence Date, no Tenant Lease in question)shall be renewed, terminate (except by reason of extended or modified, and no new lease with a tenant's default), accept surrender of, or permit any assignments or subleases of, any of the Leases (except as may tenant shall 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 thereofentered into, without the prior written consent of Buyer, which consent may be withheld by Buyer in its sole discretion. At the Closing, the costs incurred by any Seller in connection with a new Tenant Lease (i.e., a Tenant Lease executed on or after the date of this Agreement) for brokerage commissions and work allowances shall be allocated between such Seller and Buyer, with Buyer responsible for a fraction thereof whose numerator is the number of days in the term of the new Tenant Lease (excluding any unexercised renewal terms) from and after the Closing and whose denominator is the number of days in the term of such new Tenant Lease (excluding any unexercised renewal terms). The applicable Seller shall be responsible for all such lease costs incurred in connection with Tenant Leases executed prior to the date of this Agreement (except those made for any lease costs with respect to any renewal options that have not been exercised as of the date hereof, which lease costs shall be Buyer's responsibility). At the Closing, Exhibit "F" shall be amended to reflect (i) any such new or revised Tenant Lease, (ii) any Tenant Lease which existed as of the date hereof but was not listed on Exhibit "F", (iii) any Tenant Lease that was listed on Exhibit "F" but did not exist as of the date hereof and (iv) any Tenant Lease that was listed on Exhibit "F" but which was terminated on or prior to the Closing. A new Tenant Lease shall be included in the calculation of the 95% and 90% thresholds set forth in Section 7.1(d) hereof if such new Tenant Lease relates to space which is leased and occupied as of the date hereof, and is represented to be leased and occupied on Exhibit "F" attached hereto, but nevertheless becomes unoccupied after the date hereof. The anticipated rent payable as set forth in any proposed Tenant Lease proposed following the Due Diligence Date with respect to which Buyer withheld its consent, despite such proposed Tenant Lease having satisfied the lease conditions set forth on Exhibit "Q" shall also be included in the calculation of the aforementioned 95% and 90% thresholds. Failure of Buyer to affirmatively object to any proposed renewal, extension or modification of any existing lease or service contract within three (3) business days after receipt of Seller's request for approval or, in the case of any new lease or service contract, within three (3) business days after such receipt of Seller's request for approval, shall be deemed to be approval by Seller Buyer. If, after the Due Diligence Date, Buyer withholds its consent to any proposed new lease that satisfies the lease conditions for the Property to which such proposed new lease relates as set forth on Exhibit "Q" attached hereto, and the transactions contemplated pursuant to this Agreement do not close by reason of a default on the express requirements part of Buyer, or a failure of Buyer to satisfy any of the conditions set forth in Section 7.2 herein, Buyer shall pay, upon termination of this Agreement, those made the applicable Seller the amount of base rent which would have been payable for the first one hundred twenty (120) days of such proposed new lease (unless this Agreement is terminated by tenants pursuant reason of a failure of any of the conditions to the right Buyer's obligations to do so perform under their Leasesthis Agreement as set forth in Section 7.1 hereof, or by in which case Buyer shall not be required to pay such Seller if such amount, except that Buyer shall always be required by to pay such amount for leases rejected pertaining to Rejected Properties). The 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 mitigate its damages by leasing any rent in arrears.
(h) Seller shall notify Buyer such space after the termination of any tax assessment disputes (pending or threatened) prior to Closingthis Agreement, and any rents collected from and a tenant of such space with respect to the first one hundred twenty (120) days after such termination shall reduce the amount otherwise owed by Buyer. Notwithstanding anything in this Section 8.3 to the contrary, if this Agreement is not terminated pursuant to Section 3.3 above, Sellers shall have no right between the Due Diligence Expiration Date, Seller not agree Date and the Closing to terminate 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, Tenant Lease without Buyer's prior written consent, which consent may be withheld in Buyer's sole discretion and which consent shall not be unreasonably withhelddeemed given solely by reason of Buyer's failure to respond to a request for consent. In the event a Seller enters into a lease which such Seller was not permitted to enter into pursuant to this Section 8.3, delayed or conditioned. If any proceedings at the Closing, Buyer shall result receive a credit against the Purchase Price in any reduction the amount by which the economic terms set forth in Exhibit "Q" for such Property exceed the economic terms of assessment and/or tax such lease for the tax year term of such lease.
(a) Sellers shall submit estoppel certificates in which the Closing occursforms hereto attached as Exhibit "J" to the Ground Lessors and, it is agreed subject to Buyer's covenant to cooperate as set forth in Section 7.1(e) hereof, Sellers shall make diligent good faith effort to obtain executed counterparts thereof prior to Closing. Buyer hereby covenants with BSRT and the Sellers, at Buyer's expense, to cooperate with all reasonable nonmonetary requirements of the Ground Lessors that may be a condition to obtaining estoppel certificates and/or consents therefrom; provided that (i) if any Ground Lease expressly requires payment to a Ground Lessor of a fee or legal fees in connection with obtaining an estoppel certificate and/or consent, then the applicable Seller shall pay all such expressly required fees, (ii) the applicable Seller shall be entitled to a credit in the amount of tax savings any cash security deposit under the Ground Lease with respect to Property # 9 (6901 Riverport Drive, Louisville, Kentucky) (or, if such security is in the form of a letter of credit, Buyer shall be obligated within sixty (60) days after the Closing to replace such letter of credit or refund for the applicable Seller may cause such tax yearletter of credit to be canceled after sixty (60) days following the Closing), less and (iii) if any Ground Lease is silent as to the reasonable payment of a fee or legal fees or a security deposit, and disbursements if the Ground Lessor requires any such fee, legal fees or security deposit as a condition of granting its consent, then neither the applicable Seller nor Buyer shall be obligated to pay such fee, legal fees or security deposit.
(b) Sellers shall submit estoppel certificates in the form attached hereto as Exhibit "N" to all tenants of the Properties and make diligent good faith effort to obtain executed counterparts thereof prior to Closing.
(c) After the Due Diligence Date, Sellers shall submit subordination, nondisturbance agreements in the form to be delivered by Buyer on or before the Due Diligence Date to a. all tenants designated in writing by Buyer on or before the Due Diligence Date whose Tenant Leases are not subordinate by their terms to a mortgage encumbering the applicable Property, b. all tenants designated in writing by Buyer on or before the Due Diligence Date whose Tenant Leases require delivery of such an agreement from any lender, and c. all Major Tenants (as hereinafter defined), and make diligent good faith effort to obtain executed counterparts thereof prior to Closing.
8.5 Sellers shall not apply any of the security deposits under the Tenant Leases except with respect to those Tenant Leases terminated with Buyer's consent pursuant to Section 8.3 hereof.
8.6 Except as is required in connection with such proceedingsan action commenced by one or more of BSRT's shareholders, BSRT and the Sellers shall not amend or otherwise change their respective organizational documents. BSRT and the Sellers shall submit to Buyer on or before the third day after adoption a copy of any plan of liquidation or dissolution that BSRT and/or the Sellers may adopt.
8.7 Sellers shall send notices of prepayment (which may be expressly conditioned upon the occurrence of the Closing) to the holders of any Existing Indebtedness which is not Surviving Existing Indebtedness.
8.8 At or before the Closing, BSRT and Sellers shall (i) satisfy all loans previously made to BSRT and/or Sellers (other than the Surviving Existing Indebtedness) and (ii) satisfy all liens and encumbrances in a liquidated amount against any and all of the Properties.
8.9 Promptly after the date hereof, BSRT Jxxxx Creek L.L.C., the owner of Property # 12 (consisting of a portion of the Jxxxx Creek Office and Industrial Park Property), shall be apportioned between send written notice to Wxxxxxxx Die & Mold, Inc. ("Wxxxxxxx"), together with such information as is required pursuant to the parties Second Amendment to Lease dated as of June 6, 2000 between BSRT Jxxxx Creek L.L.C. and Wxxxxxxx with respect to such Property. If Wxxxxxxx exercises its right of first refusal with respect to such Property, this Agreement shall terminate with respect to such Property and the date real estate taxes are apportioned under this Agreement. All refunds relating Purchase Price shall be reduced by deducting therefrom the portion of the Purchase Price allocated to any tax year such Property in Exhibit "E."
8.10 At least thirty-five (35) days prior to the Closing Closing, Sellers shall be deliver to Buyer evidence reasonably satisfactory to Buyer that the sole property sale of Sellerthe Properties to Buyer hereunder is not subject to, and all refunds relating does not subject Buyer 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 liability under, Section 902(d) of the other.
Illinois Income Tax Act (ithe "Act"). If said evidence is not so delivered to Buyer, then Sellers shall, or Buyer may, notify the Illinois Department of Revenue (the "Department") Seller shall notify Buyer promptly of the occurrence of any of intended sale and request the following:
(i) Receipt of notice from any governmental or quasi-governmental agency or authority or insurance underwriter relating Department to the condition, use or occupancy of the Real Propertymake a determination as to whether Sellers, or any portion thereof;
(ii) Receipt of any notice them, have an assessed, but unpaid, amount of default from any tenant tax, penalties or interest under the Act. Sellers agree that Buyer may, at the Closing, deduct and withhold from the holder proceeds that are due Sellers the amount necessary to comply with the withholding requirements of said Section 902(d). Buyer shall deposit the amount so withheld in escrow with Escrow Agent pursuant to terms and conditions acceptable to Sellers, Buyer and Escrow Agent, but in 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 event complying with a scheduled lease terminationsaid Section 902(d).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Banyan Strategic Realty Trust)
Operations Prior to Closing. Buyer (aon behalf of itself and its Affiliates who are the tenants under the Buyer Leases) Seller hereby covenants and agrees to operate that, from and after the Property between the Execution Effective Date and prior to the earlier to occur of the Closing and the termination of this Agreement pursuant to any termination right set forth herein or the mutual written agreement of the parties, neither Buyer, nor any of Buyer's Affiliates, shall cause or permit any lien or encumbrance to be recorded against the title to any Parcel; PROVIDED THAT, Buyer and its Affiliates shall have no responsibility for any lien or encumbrance arising against or through Seller or its Affiliates (other than Buyer or its Affiliates). Buyer (on behalf of its Affiliates who are the tenants under the Buyer Leases) and Seller each hereby covenants and agrees that, from and after the Effective Date in and until 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 date of Closing, it shall continue at all times to fully keep and maintaining all insurance coverage currently in force.
(b) Seller shall comply with all of the obligations of landlord under the Leases perform each 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 every one of its obligations under and/or made in any of the Leases Buyer Leases, any management agreements relating to any of the Parcels, and/or any other instrument, agreement or document executed by and between Seller (or any Permit or agreement affecting the Real Property, of its Affiliates) and Buyer (or any portion of its Affiliates) in connection with any Parcel. Any material breach or portions thereof.
default by the Buyer (dor any of its Affiliates) No contract under any such Buyer Lease, management agreement or other such agreement, instrument or document which is not cured within the applicable cure period provided by any such Buyer Lease, management agreement or other agreement, instrument or document shall be and constitute a material breach or default by the Buyer hereunder, whereupon Seller may exercise any of its rights or remedies hereunder (including, without limitation, its right to terminate this Agreement and receive the Deposit OP Units as liquidated damages hereunder) without any additional notice and/or cure provided to Buyer (or its Affiliate), notwithstanding anything to the contrary stated or implied in this Agreement. Moreover, any material breach or default by the Buyer hereunder that is not cured within any applicable notice and cure period shall be and constitute a material breach of the Buyer (or its Affiliate who is the tenant) under each of the Buyer Leases for the Non-Core Parcels and Virginia Parcels (but not the Myrtle Beach Parcels, it being expressly acknowledged and agreed that no breach or default hereunder shall constitute a breach or default under the Buyer Leases for such Myrtle Beach Parcels, notwithstanding any cross-default provisions between the Buyer Leases for the Non-Core Parcels and/or Virginia Parcels and the Buyer Leases for the Myrtle Beach Parcels), whereupon Seller shall be permitted to exercise each and every remedy of the "landlord" under such Buyer Leases without any additional notice and/or cure period provided to Buyer or its Affiliate, as the case may be, thereunder. Concurrently with the execution of this Agreement and on the Effective Date, Buyer has caused each of its Affiliates who are tenants under any Buyer Lease(s) for the Non-Core Parcels and/or Virginia Parcels to execute, acknowledge and deliver to Escrow Agent a Termination of Lease in the form attached hereto as EXHIBIT N pertaining to each such Buyer Lease. In the event of the termination of any such Buyer Lease (whether as a result of a breach or default of the "tenant" thereunder or of Buyer under this Agreement), Seller may deliver to Escrow Agent a written notice stating that such Buyer Lease has been terminated. Upon its receipt of any such written notice from Seller, Escrow Agent shall immediately deliver a copy of such notice to Buyer. If Buyer does not deliver to Escrow Agent a written notice objecting to the Seller's notice within seven (7) days after the Escrow Agent's delivery of Seller's written notice to Buyer, then immediately upon the expiration of such seven (7) day period Escrow Agent shall, and Buyer (on behalf of or affecting itself and each of its Affiliates who are "tenants" under such Buyer Leases) hereby authorizes Escrow Agent to, cause each such Termination of Lease to be recorded against the Real Property Parcel(s) that is/are currently encumbered by such Buyer Lease(s) described therein. If Buyer delivers to Escrow Agent a written notice objecting to the Seller's notice within such seven (7) day period, then Escrow Agent shall not record the Termination of Lease but shall retain and hold the same until the dispute between Seller and Buyer regarding the termination of the Buyer Lease(s) at issue has been resolved, and, if such dispute is resolved in Seller's favor, then promptly following the resolution of such dispute each Termination of Lease at issue shall be negotiated or entered into which cannot be terminated recorded against the Parcel(s) encumbered by Seller upon the Closing without the payment Buyer Lease(s) described therein. Escrow Agent may initiate an action in interpleader involving any Termination 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 PropertyLease in dispute. Any new lease material breach or default by the Seller under any Buyer Lease, management agreement or other agreement, instrument or document which is not cured within the applicable cure period provided by any such Buyer Lease, management agreement or other such agreement, instrument or document shall be on Buyer's customary form (which and constitute a material breach or default by the Seller hereunder, whereupon Buyer 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, exercise any of the Leases (except as may be required under such Lease)its rights and remedies hereunder, 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 notwithstanding anything to the Real Property, contrary stated 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 implied 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 Moreover, any material breach or default by the Seller hereunder that is not cured within any applicable notice and cure period shall be and constitute a material breach of the Seller under each of the Buyer Leases for the Non-Core Parcels and Virginia Parcels (but not the Myrtle Beach Parcels, it being expressly acknowledged and agreed that no breach or default hereunder shall constitute a breach or default under the Buyer Leases for such Myrtle Beach Parcels, notwithstanding any cross-default provisions between the Buyer Leases for the Non-Core Parcels and/or Virginia Parcels and the Buyer Leases for the Myrtle Beach Parcels), whereupon Buyer (or its Affiliates who are tenants under such Buyer Leases) shall be permitted to exercise each and every remedy of the "tenant" under such Buyer Leases without any tax year prior additional notice and/or cure period provided to Seller. Each Affiliate of Buyer who is a "tenant" under a Buyer Lease has executed the Acknowledgment, Consent and Agreement Page attached hereto for the purposes of evidencing its acknowledgment of and consent to the Closing shall terms and provisions of this SECTION 4.7 and its agreement to be bound by the sole property terms and provisions 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 otherthis SECTION 4.7.
(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.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Golf Trust of America Inc)
Operations Prior to Closing. Buyer (aon behalf of itself and its Affiliates who are the tenants under the Buyer Leases) Seller hereby covenants and agrees to operate that, from and after the Property between the Execution Effective Date and prior to the earlier to occur of the Closing and the termination of this Agreement pursuant to any termination right set forth herein or the mutual written agreement of the parties, neither Buyer, nor any of Buyer's Affiliates, shall cause or permit any lien or encumbrance to be recorded against the title to any Parcel; PROVIDED THAT, Buyer and its Affiliates shall have no responsibility for any lien or encumbrance arising against or through Seller or its Affiliates (other than Buyer or its Affiliates). Buyer (on behalf of its Affiliates who are the tenants under the Buyer Leases) and Seller each hereby covenants and agrees that, from and after the Effective Date in and until 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 date of Closing, it shall continue at all times to fully keep and maintaining all insurance coverage currently in force.
(b) Seller shall comply with all of the obligations of landlord under the Leases perform each 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 every one of its obligations under and/or made in any of the Leases or Buyer Leases, 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 management agreements relating 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 Parcels, and/or any other instrument, agreement or document executed by and between Seller (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.
its Affiliates) and Buyer (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 its Affiliates) in connection with any Parcel. Any material breach or default by the Buyer (or any of its Affiliates) under any such proceedingsBuyer Lease, management agreement or other such agreement, instrument or document which is not cured within the applicable cure period provided by any such Buyer Lease, management agreement or other agreement, instrument or document shall be apportioned between and constitute a material breach or default by the parties Buyer hereunder, whereupon Seller may exercise any of its rights or remedies hereunder (including, without limitation, its right to terminate this Agreement and receive the Deposit OP Units as of liquidated damages hereunder) without any additional notice and/or cure provided to Buyer (or its Affiliate), notwithstanding anything to the date real estate taxes are apportioned under contrary stated or implied in this Agreement. All refunds relating to Moreover, any tax year prior to material breach or default by the Closing Buyer hereunder that is not cured within any applicable notice and cure period shall be and constitute a material breach of the sole property Buyer (or its Affiliate who is the tenant) under each of Sellerthe Buyer Leases for the Non-Core Parcels and Virginia Parcels (but not the Myrtle Beach Parcels, it being expressly acknowledged and all refunds relating to agreed that no breach or default hereunder shall constitute a breach or default under the Buyer Leases for such Myrtle Beach Parcels, notwithstanding any year subsequent to cross-default provisions between the year in which Closing occurs Buyer Leases for the Non-Core Parcels and/or Virginia Parcels and the Buyer Leases for the Myrtle Beach Parcels), whereupon Seller shall be the sole property of Buyer. Each party agrees permitted to promptly remit to the other any refund received by it which is the property exercise each and every remedy of the other.
(i) Seller shall notify "landlord" under such Buyer promptly of Leases without any additional notice and/or cure period provided to Buyer or its Affiliate, as 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.case
Appears in 1 contract
Samples: Purchase and Sale Agreement (Golf Trust of America Inc)
Operations Prior to Closing. (a) After the date of this Agreement and prior to the Closing, as to any of the Assets operated by Seller, Seller agrees to shall use, operate and maintain the Property between the Execution Date and the Closing Date Assets in substantially the same general manner as in which they have been used, operated and maintained prior to this Agreement. During the period from the Effective Time until Closing, Seller has operated shall have no liability to Buyer for Claims sustained or liabilities incurred with respect to the Property during Assets, REGARDLESS OF THE SOLE, JOINT, CONCURRENT OR COMPARATIVE NEGLIGENCE (BUT NOT SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), STRICT LIABILITY, REGULATORY LIABILITY, STATUTORY LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHER FAULT OR RESPONSIBILITY OF SELLER OR ANY OTHER PERSON OR PARTY. After the immediately preceding six (6) month period, paying all costs date hereof and expenses as they come due, and in any event prior to Closing, and maintaining all insurance coverage currently Seller may (without Buyer’s consent) enter into agreements or transactions in force.
relation to the Assets which (a) individually involve a reasonably anticipated cost of less than $50,000, or involve a reasonably anticipated cost which individually, or, in the aggregate, exceeds such amount, to the extent the same are set forth in the budget attached as Schedule 9.1 or (b) are entered into in the ordinary course of business, consistent with past practices. With Closing, Seller is relieved of and shall not be obligated for any expenditures attributable to periods after the Effective Time, and shall recover any such charges and expenses as part of the Closing Statement and Final Settlement Statement adjustments, as appropriate. Except with respect to those matters described above, if any material expenditure, contract or agreement is proposed or contemplated, Seller shall comply promptly submit such proposal to Buyer for concurrence with all Seller’s recommendation. Buyer will make any required election under its independent evaluation and shall assume the cost and risk of the obligations any consequences which arise as a result of landlord under the Leases Buyer’s election to participate or Xxxxx’s failure to timely elect or election to not participate in or not approve an operation and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or not pay such expenditure, without regard to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Propertywhether Closing occurs. Additionally, after the execution of this Agreement and prior to Closing.
(c) , Seller shall have the right to make any changes, repairs or modifications to the Assets, and incur any related expenditure deemed necessary by Seller, to prevent or respond to an emergency involving serious risk of loss of or damage to life, property, or the environment. With regard to the preceding sentence, 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 as soon as possible of the Leases emergency and Seller’s response thereto and shall have the right to cause or any Permit effect such expenditure or agreement affecting the Real Propertyaction with or without Buyer’s approval, 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 and recover such costs in the Closing without the payment of a specific chargeStatement or Final Settlement Statement adjustments, 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 delayas appropriate. Prior to Closing, Seller shall not enter into any new leases for any portion consult with and advise Buyer regarding all material matters concerning the operation, management, and administration of the Real Property. Any new lease shall be on Buyer's customary form (which may vary to reflect customary negotiated revisions thereto)Assets, and before voting or making any election under any operating, unit, joint venture, or such other form which is reasonably acceptable to Buyersimilar agreement. Further, except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, or as set forth aboveFurthermore, 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 thereofwill not, without the prior written consent of Buyer, except those made by Seller pursuant (x) enter into any agreement or arrangement transferring, selling, or encumbering any of the Assets (other than sale of Sale Hydrocarbons in the ordinary course), (y) grant any preferential or other similar right to purchase any of the express requirements Assets or (z) enter into any new production sales contract not terminable on thirty (30) days’ notice or less. Promptly after execution of this Agreement, those made by tenants pursuant to Seller shall notify the holders of the Consents of the transactions contemplated herein and request their consent. Buyer shall have the right to do so under their Leasesreview and approve the form of such notices, 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 such approval not 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 Xxxxx and Seller each agree to reasonably cooperate with efforts to obtain 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 otherrequired Consents.
(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.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Operations Prior to Closing. (a) Seller Each Contributor agrees to operate the its Property between the Execution Effective Date and the Closing Date with respect to such Property in the same general manner as Seller such Contributor 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 Closingthe Closing with respect to such Property, and maintaining all insurance coverage currently in force.
(b) Seller Each Contributor shall comply with all of the obligations of landlord under the its Leases and all other agreements and contractual arrangements affecting the its Real Property by which Seller such Contributor is bound or to which the such Contributor's Real Property, or any of them, are is subject, and which will be binding upon Buyer the Partnership or a lien upon such Real Property, after the ClosingClosing with respect to such Real Property.
(c) Seller Each Contributor shall notify Buyer the Partnership promptly of Sellersuch Contributor's receipt of any written notice from any party alleging that Seller such Contributor is in default of its obligations under any of the Leases or any Permit or agreement affecting the its Real Property, or any portion or portions thereof.
(d) No contract for or on behalf of or affecting the Real Property of any Contributor shall be negotiated or entered into which cannot be terminated by Seller such Contributor upon the Closing with respect to such Real Property without the payment of a specific charge, cost, penalty or premium for such termination. On or before ten (10) days prior to each Applicable Closing Date, the Partnership shall send written notice to the Applicable Contributor informing the Applicable Contributor of which of the Contracts listed on "Exhibit T" attached hereto the Partnership is willing to accept assignment (the "Accepted Contracts"). At the Closing, the Partnership shall be obligated to accept assignment of, and assume the Applicable Contributor's obligations (arising on or after the date of Closing) under, the Accepted Contracts. The Applicable Contributor and Xxxxx shall remain responsible for all other obligations in, to and under the Contracts (other than the Accepted Contracts) which the Partnership does not accept and assume pursuant to the terms hereof. Anything herein to the contrary notwithstanding, neither the Trust nor the Partnership is assuming the Contracts (or any other obligation arising under the Contracts) identified on Exhibit B with American Transfer Company, Inc. and Unique Sanitation Co., Inc. Xxxxx, on behalf of himself and the Xxxxx affiliate that has entered into these agreements, shall remain responsible for performance under these agreements. However, in recognition of the benefits to be realized by the Partnership from the waste removal services that will be provided under such agreements, from and after the date the Partnership acquired title to the Properties that are subject to these two agreements, the Partnership agrees to make payments on behalf of Xxxxx when such payments are due under these agreements in accordance with the terms thereof as currently in effect. Xxxxx agrees not to renew or modify either of these agreements without the prior written consent of the Partnership.
(e) Except with the prior written consent of Buyerthe Partnership, which Buyer the Partnership agrees it shall not unreasonably withhold, condition or delay, Seller no Contributor shall not enter into any new leases for any portion of its Real Property after the Real PropertyEffective Date. Any new lease entered into after the Effective Date shall be on Buyerthe Partnership's customary form (which may vary to reflect customary negotiated revisions thereto), or such other form which is reasonably acceptable to Buyerthe Partnership. Further, except with the prior written consent of Buyerthe Partnership, which Buyer the Partnership agrees it shall not unreasonably withhold, condition or delay, or as set forth above, Seller shall not no Contributor shall, after the Effective Date, amend, extend (except where required under the terms of the Lease in question), terminate (except by reason of a tenantTenant's default), accept surrender of, or permit any assignments or subleases of, any of the its 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). The Partnership shall respond to the Contributor's written request for a consent in all cases under this subparagraph (e) within three (3) business days of receiving such request. Failure by the Partnership to respond within such three (3) business day period, shall be deemed the consent of the Partnership to the proposed leasing transaction.
(f) Seller No Contributor shall not make or permit to be made any capital improvements or additions to the its Real Property, or any portion thereof, without the prior written consent of Buyerthe Partnership, except those made by Seller a Contributor pursuant to the express requirements of this Agreement, those capital improvements or additions described on "Exhibit V", those made by tenants Tenants pursuant to the right to do so under their Leases, or by Seller a Contributor if required by applicable such law or ordinance, or as required under any Lease.
(g) Seller Each Contributor shall timely xxxx all tenants Tenants for all rent billable under its Leases, and use commercially reasonable efforts to collect any rent in arrears.
(h) Seller Each Contributor shall notify Buyer the Partnership of any tax assessment disputes (pending or threatened) prior to Closingany Closing with respect to the Property at issue, and and, from and after the Due Diligence Expiration Termination Date, Seller not no Contributor shall 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 Buyerthe Partnership'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 with respect to such Contributor's Property 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 such Contributor and the parties Partnership as of the date real estate taxes are apportioned under this Agreement. All refunds relating to any tax year prior to the Closing with respect to its Property shall be the sole property of SellerContributor, and all refunds relating to any year subsequent to the year in which such Closing occurs shall be the sole property of Buyerthe Partnership. Each party Contributor and the Partnership agrees to promptly remit to the other any refund received by it which is the property of the other.
(i) Seller Each Contributor shall notify Buyer the Partnership promptly of the occurrence of any of the following:
(i) Receipt of notice from any governmental or quasi-quasi- governmental agency or authority or insurance underwriter relating to the condition, use or occupancy of the its Real Property, or any portion thereof;
(ii) Receipt of any notice of any default from any tenant Tenant or from the holder of any lien or security interest in or encumbering the its Real Property, or any portion thereof;
(iii) Notice of any actual or threatened litigation against Seller such Contributor or affecting or relating to the its Real Property, or any portion thereof which may materially and adversely affect the such Real Property or Sellersuch Contributor's ability to consummate the transactions contemplated by this Agreement; andor
(iv) Vacancy of any demised Property by a tenantTenant, other than in accordance with a scheduled lease termination.
(j) Subject to the terms of this Agreement, Xxxxx and each Contributor shall use all commercially reasonable efforts to take and cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations, to cause the condition to the Partnership's and the Trust's obligation to close specified in Paragraph 20 below to be satisfied and otherwise to consummate and make effective the transactions contemplated by this Agreement.
Appears in 1 contract
Operations Prior to Closing. (a) Seller PWCCW agrees to operate the Property between the Execution Effective Date and the Closing Date in the same general manner as Seller PWCCW 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 PWCCW 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 PWCCW is bound or to which the Real Property, or any of them, are subject, and which will be binding upon Buyer the Partnership or a lien upon such Real Property, after the Closing.
(c) Seller PWCCW shall notify Buyer the Partnership promptly of SellerPWCCW's receipt of any notice from any party alleging that Seller PWCCW 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 PWCCW 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 Buyerthe Partnership, which Buyer the Partnership agrees it shall not unreasonably withhold, condition or delay, Seller PWCCW shall not enter into any new leases for any portion of the Real Property. Any new lease shall be on Buyerthe Partnership's customary form (which may vary to reflect customary negotiated revisions thereto), or such other form which is reasonably acceptable to Buyerthe Partnership. Further, except with the prior written consent of Buyerthe Partnership, which Buyer the Partnership agrees it shall not unreasonably withhold, condition or delay, or as set forth above, Seller PWCCW 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 PWCCW 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 Buyerthe Partnership, except those made by Seller PWCCW 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 PWCCW if required by applicable law or ordinance, or as required under any Lease.
(g) Seller PWCCW shall timely xxxx all tenants for all rent billable under Leases, and use commercially reasonable efforts to collect any rent in arrears.
(h) Seller PWCCW shall notify Buyer the Partnership of any tax assessment disputes (pending or threatened) prior to Closing, and from and after the Due Diligence Expiration Date, Seller PWCCW 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 Buyerthe Partnership'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 SellerPWCCW, and all refunds relating to any year subsequent to the year in which Closing occurs shall be the sole property of Buyerthe Partnership. Each party agrees to promptly remit to the other any refund received by it which is the property of the other.
(i) Seller PWCCW shall notify Buyer the Partnership 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 PWCCW or affecting or relating to the Real Property, or any portion thereof which may materially and adversely affect the Real Property or SellerPWCCW's ability to consummate the transactions contemplated by this Agreement; andor
(iv) Vacancy of any demised Property by a tenant, other than in accordance with a scheduled lease termination.
Appears in 1 contract
Operations Prior to Closing. (a) Seller English Creek agrees to operate the Property between the Execution Effective Date and the Closing Date in the same general manner as Seller English Creek 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 English Creek 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 English Creek is bound or to which the Real Property, or any of them, are subject, and which will be binding upon Buyer the Partnership or a lien upon such Real Property, after the Closing.
(c) Seller English Creek shall notify Buyer the Partnership promptly of SellerEnglish Creek's receipt of any notice from any party alleging that Seller English Creek 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 English Creek 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 Buyerthe Partnership, which Buyer the Partnership agrees it shall not unreasonably withhold, condition or delay, Seller English Creek shall not enter into any new leases for any portion of the Real Property. Any new lease shall be on Buyerthe Partnership's customary form (which may vary to reflect customary negotiated revisions thereto), or such other form which is reasonably acceptable to Buyerthe Partnership. Further, except with the prior written consent of Buyerthe Partnership, which Buyer the Partnership agrees it shall not unreasonably withhold, condition or delay, or as set forth above, Seller English Creek 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 English Creek 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 Buyerthe Partnership, except those made by Seller English Creek 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 English Creek if required by applicable law or ordinance, or as required under any Lease.
(g) Seller English Creek shall timely xxxx all tenants for all rent billable under Leases, and use commercially reasonable efforts to collect any rent in arrears.
(h) Seller English Creek shall notify Buyer the Partnership of any tax assessment disputes (pending or threatened) prior to Closing, and from and after the Due Diligence Expiration Date, Seller English Creek 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 Buyerthe Partnership'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 SellerEnglish Creek, and all refunds relating to any year subsequent to the year in which Closing occurs shall be the sole property of Buyerthe Partnership. Each party agrees to promptly remit to the other any refund received by it which is the property of the other.
(i) Seller English Creek shall notify Buyer the Partnership 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 English Creek or affecting or relating to the Real Property, or any portion thereof which may materially and adversely affect the Real Property or SellerEnglish Creek's ability to consummate the transactions contemplated by this Agreement; andor
(iv) Vacancy of any demised Property by a tenant, other than in accordance with a scheduled lease termination.
Appears in 1 contract
Operations Prior to Closing. From the date hereof until the Closing or the earlier termination of this Agreement, the Seller shall confer with the Buyer prior to making any material operational decisions involving, related to or affecting the Seller, the Business or the Purchased Assets, and, without limiting the foregoing, the Seller shall:
(a) Seller agrees to operate operate, conduct and carry on the Property between the Execution Date and the Closing Date Business 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.ordinary course of business consistent with past practice;
(b) Seller shall comply with all keep available the services of the obligations current officers, employees and agents of landlord under the Leases Seller and all other agreements maintain the Seller’s relationships with its suppliers, customers, clients, landlords, creditors, employees, agents and contractual arrangements affecting others having business relationships with 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.Seller;
(c) Seller shall notify Buyer promptly maintain the Purchased Assets in their current state of Seller's receipt repair and condition consistent with ordinary course 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.business and past practice;
(d) No contract for comply with all Legal Requirements and contractual obligations applicable to the Seller, the operations of the Business, the Assumed Liabilities and the Purchased Assets in all material respects;
(e) not change any method of accounting, accounting policy, accounting or on behalf Tax practice or policy of or affecting the Real Property shall be negotiated Seller, or entered into which cannot be terminated by Seller upon materially change any collection of payment practice of the Closing without Seller, including the collection of receivables, inventory control and payment of a specific charge, cost, penalty or premium for such termination.payables;
(ef) Except with not make any Tax election, amend any Tax Return, or settle any dispute relating to Taxes involving, relating to or affecting the prior written consent Seller, the Business or any of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, Seller shall the Purchased Assets;
(g) not enter into into, amend, modify or terminate any new leases for Assigned Contract, or waive, release or assign any portion of the Real Property. Any new material rights or claims under any Assigned Contract;
(h) not sell, lease shall be on Buyer's customary form (which may vary to reflect customary negotiated revisions theretoas lessor), transfer, abandon or such other form which is reasonably acceptable to Buyer. Furtherotherwise dispose of, except with the prior written consent of Buyerlicense, which Buyer agrees it shall not unreasonably withhold, condition mortgage or delaypledge, 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, impose or permit suffer any assignments or subleases ofLien on, any of the Leases (except as may be required under such Lease)Purchased Assets, nor accept any rental more in whole or in part, other than one (1) month sales of finished goods in advance (exclusive the ordinary course of any security deposit).business consistent with past practice;
(fi) Seller shall not make incur any liability 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, obligation 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 current liabilities and obligations 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 trade payables in connection with such proceedingsthe purchase of materials, shall be apportioned between supplies, goods or services by the parties Seller in the ordinary course of business consistent with past practice;
(j) not make any material increase in the salary, wages or other compensation of any officer, employee or independent contractor of the Seller outside of the ordinary course of business consistent with past practice;
(k) except as required by law, not adopt, amend or terminate any Employee Benefit Plan (or any plan, program, policy of arrangement that would have been an Employee Benefit Plan had it been in existence 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 thereofhereof;
(iil) Receipt of not make any notice of default from representation or promise, oral or written, to any tenant or from the holder of any lien or security interest in or encumbering the Real Propertyofficer, member, manager, employee, or independent contractor of the Seller concerning any portion thereof;
(iii) Notice of any actual compensation, bonus arrangement 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 AgreementEmployee Benefit Plan; and
(ivm) Vacancy not take any action that would cause any of any demised Property by a tenantthe changes, other than events or conditions described in accordance with a scheduled lease terminationSection 3.18(a) to occur.
Appears in 1 contract
Samples: Asset Purchase Agreement (Power Solutions International, Inc.)
Operations Prior to Closing. (a) After the date of this Agreement and prior to the Closing, as to any of the Assets operated by Seller, Seller agrees to shall use, operate and maintain the Property between the Execution Date and the Closing Date Assets in substantially the same general manner as in which they have been used, operated and maintained prior to this Agreement. During the period from the Effective Time until Closing, Seller has operated shall have no liability to Buyer for Claims sustained or liabilities incurred with respect to the Property during Assets, regardless of the immediately preceding six sole, joint, concurrent or comparative negligence (6) month periodbut not Seller’s gross negligence or willful misconduct), paying all costs strict liability, regulatory liability, statutory liability, breach of contract, breach of warranty, or other fault or responsibility of Seller or any other person or party. After the date hereof and expenses as they come due, and in any event prior to Closing, and maintaining all insurance coverage currently Seller may (without Buyer’s consent) enter into agreements or transactions in force.
relation to the Assets which (a) are set out on Schedule 5.1 (n), (b) individually involve a fair market value of less than twenty five thousand dollars ($25,000.00), or (c) are entered into in the ordinary course of business, consistent with past practices. With Closing, Seller is relieved of and shall not be obligated for any expenditures after the Effective Time, and shall recover any charges and expenses as part of the Closing Statement and Final Settlement Statement adjustments, as appropriate. Except with respect to those matters described above, if any material expenditure for purposes other than day-to-day operations is proposed or contemplated, Seller shall comply submit such proposal to Buyer in writing for concurrence with all Seller’s recommendation. Buyer will make any required election under its independent evaluation and shall assume the cost and risk of the obligations any consequences which arise as a result of landlord under the Leases Buyer’s election to participate or Buyer’s failure to timely elect or election to not participate in or not approve an operation and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or not pay such expenditure, without regard to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Propertywhether Closing occurs. Additionally, 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 signing 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, Agreement 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, Seller shall have the right to make any changes, repairs or modifications to the Assets, and from and after incur any related expenditure deemed necessary by Seller, to prevent or react to an emergency or environmental incident, or to preserve or maintain any Lease, in whole or in part. With regard to the Due Diligence Expiration Datepreceding sentence, Seller not agree shall have the right to any changes cause or effect such expenditure or action with or without Buyer’s approval, and recover such costs in the real estate tax assessmentClosing Statement or Final Settlement Statement adjustments, 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 otherappropriate.
(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.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Comstock Resources Inc)
Operations Prior to Closing. Between the date of this Agreement and Closing:
(a) Seller agrees shall, at its expense: perform all of its obligations under the Tenant Leases and cause the Tenants to operate perform all of their obligations under the Property between Tenant Leases; and cure (or cause the Execution Date and the Closing Date in the same general manner as Seller has operated the Property during the immediately preceding six (6Tenants to cure) month period, paying all costs and expenses as they come due, and in notices of any event Violations and/or Defect Notices issued prior to Closing, and maintaining all insurance coverage currently in force.
(b) Seller shall comply with all not enter into any agreement to modify, amend or otherwise alter any of the obligations terms or provisions of landlord under the Tenant 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, the Service Agreements; 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 an new leases for any portion lease or other agreement with respect to the use or occupancy of the Real Property. Any new lease shall be on Buyer's customary form (which may vary to reflect customary negotiated revisions thereto), Property and/or the maintenance 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 operation thereof, without the prior written consent of Buyer.
(c) Seller shall perform all acts, except those made and shall make all payments, necessary to cause the representations and warranties of Seller in this Agreement to be true and correct.
(i) Buyer, its attorneys, accountants, architects, engineers and other representatives shall be afforded access to the Property and to all books, records and files relating thereto from time to time prior to Closing for the purposes of inspections, preparation of plans, taking of measurements, making of surveys, making of appraisals, and generally for the ascertainment of the condition of the Property, including but not limited to the physical and financial condition of the Property; and there shall be furnished to Buyer all plans and specifications, engineering reports, feasibility studies, operating statements, governmental permits and approvals, contracts, leases, surveys, title information and other documentation concerning the Property in the possession of Seller and/or Seller's management agent for the Property.
(ii) Buyer, its attorneys, accountants and other representatives, shall be permitted to make and are authorized to make any searches of governmental records as they deem necessary with respect to the Property; and Seller agrees fully to cooperate with Buyer and its attorneys and other representatives in this regard and to issue any consents or authorizations required therefor.
(iii) Buyer agrees to indemnify, defend and reimburse Seller for all costs, expenses (including, without limitation, attorney's fees, consultant and expert fees and court costs) loss and liabilities suffered or incurred by Seller as the result of any injuries to persons or properties caused by Buyer's entry upon the Property prior to Closing pursuant to the express requirements provisions of this Section 9(d). The obligations of Buyer pursuant to this Section 9(d)(iii) shall survive Closing and/or any termination of this Agreement.
(e) Promptly after receipt thereof by Seller, those made by tenants pursuant Seller shall deliver to Buyer the following:
(i) a copy of any notice of default given or received under any of the Tenant Leases or the Service Agreements;
(ii) a copy of any tax xxxx, notice or statement of value, or notice of change in a tax rate affecting or relating to the right Property;
(iii) a copy of any notice of an actual or alleged Violation; and
(iv) a copy of any notice of Taking.
(f) Seller shall complete and deliver for execution by each of the Tenants a written certification in the form of Exhibits F-1, F-2 and F-3 to do so under their Leasesthis Agreement, or but modified and supplemented by Buyer's counsel to reflect the terms and provisions of each of the respective Tenant Leases (each, "Tenant Estoppel Certificate"); and shall obtain an executed Tenant Estoppel Certificate (dated no more than 10 days prior to the Closing Date) from each of the Tenants. Seller if required by applicable law or ordinance, or as required under any Leaseshall deliver to Buyer a copy of each of the executed Tenant Estoppel Certificates delivered to Seller promptly after receiving each such certificate.
(g) Seller shall timely xxxx all tenants deliver for all rent billable under Leasesexecution by each of the Tenants a Subordination, Non-Disturbance and use commercially reasonable efforts Attornment agreement in the form required by Buyer's lender ("SNDA"); and Seller shall obtain an executed SNDA from each of the Tenants. Seller shall deliver to collect any rent Buyer a copy of each of the executed SNDAs delivered to Seller promptly after receiving each such SNDA. The SNDAs shall be in arrearsthe forms attached hereto as Exhibits J-1, J-2 and J-3.
(h) Seller shall notify Buyer obtain from the Tenants written amendments to each of any tax assessment disputes the Tenant Leases (pending or threatenedin form satisfactory to Buyer) 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 each of the date real estate taxes are apportioned under this Agreement. All refunds relating Tenants shall waive and delete the options 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 purchase portions of the otherProperty set forth therein ("Lease Amendments").
(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.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (American Real Estate Investment Corp)
Operations Prior to Closing. (a) Seller agrees to operate each of the Property Real Properties between the Execution Date and the Closing Date in the same general manner as Seller has operated each of the Property Real Properties 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 material obligations of landlord under the Leases and all other agreements and contractual arrangements affecting the Real Property Properties by which Seller is bound or to which the Real PropertyProperties, 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 material agreement affecting the Real PropertyProperties, or any portion or portions thereof.
(d) No contract for or on behalf of or affecting the Real Property Properties 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 PropertyProperties, other than leases or amendments of existing Leases which comply with the leasing parameters set forth in Exhibit "R" annexed hereto and made a part hereof, as to which Buyer shall be given prior written notice, but as to which Buyer's consent shall not be required. Any new lease shall be on BuyerSeller'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 PropertyProperties, or any portion thereof, without the prior written consent of BuyerPurchaser, 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 PropertyProperties, 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 PropertyProperties, or any portion thereof;
(iii) Notice of any actual or threatened litigation against Seller or affecting or relating to the Real PropertyProperties, or any portion thereof which may materially and adversely affect the Real Property Properties or Seller's ability to consummate the transactions contemplated by this Agreement; and
(iv) Vacancy of any demised Property premises by a tenant, other than in accordance with a scheduled lease termination.
Appears in 1 contract
Operations Prior to Closing. Between the date of this Agreement and Closing:
(a) Seller agrees to operate shall, at its expense: perform all of its obligations under the Property between the Execution Date Tenant Lease; and the Closing Date in the same general manner as Seller has operated the Property during the immediately preceding six (6) month period, paying cure all costs and expenses as they come due, and in notices of any event Violations and/or Defect Notices issued prior to Closing. Notwithstanding the foregoing provisions of this Section 9(a), if all such notices of Violation or Defect Notices require the expenditure by Seller of more than $50,000 in the aggregate, Seller shall have the right to give to Buyer written notice that Seller has elected not to cure such notices; and maintaining all insurance coverage currently in forcesuch event, Buyer shall have the right, by written notice to Seller, at Buyer's sole option, to terminate this Agreement.
(b) Seller shall comply not enter into any agreement to modify, amend or otherwise alter any of the terms or provisions of the Tenant Lease or any of the Service Agreements; Seller shall not enter into a new lease ("New Lease") or other agreement with respect to the use or occupancy of the Real Property and/or the maintenance thereof, without prior written approval of Buyer. Seller agrees to execute any New Lease designated by Buyer which is approved by Seller. Each of Seller and Buyer agrees not unreasonably to untimely withhold or delay its approval of a New Lease. If Seller shall enter into a New Lease for a portion of the Real Property after the date of this Agreement and prior to the Closing Date pursuant to the request or prior written approval of Buyer, then Buyer shall, at Closing, reimburse to Seller all of hard costs paid by Seller pursuant to a written budget previously approved by Seller and Buyer for capital improvements to the premises demised under the New Lease; and Buyer shall assume the obligations of the Seller, as landlord under the Leases and all other agreements and contractual arrangements affecting New Lease, to perform capital improvements to the Real Property premises demised under the New Lease required by which the terms of the New Lease. Any New Lease entered into by 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 Closingdate of this Agreement and prior to the Closing Date pursuant to the request or prior written approval of Buyer shall be included within the definition of "Tenant Lease."
(c) Seller shall notify Buyer promptly perform all acts, and shall make all payments, necessary to cause the representations and warranties 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 thereofthis Agreement to be true and correct.
(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 Buyer, its attorneys, accountants, architects, engineers and other representatives shall notify Buyer promptly be afforded access to the Property and to all books, records and files relating thereto from time to time prior to Closing for the purposes of inspections, preparation of plans, taking of measurements, making of surveys, making of appraisals, and generally for the ascertainment of the occurrence of any condition of the following:
(i) Receipt of notice from any governmental or quasi-governmental agency or authority or insurance underwriter relating Property, including but not limited to the condition, use or occupancy physical and financial condition of the Real Property; and there shall be furnished to Buyer all plans and specifications, or any portion thereof;engineering reports, feasibility studies, operating statements, governmental permits and approvals, contracts, leases, surveys, title information and other documentation concerning the Property in the possession of Seller and/or Seller's management agent for the Property.
(ii) Receipt Buyer, its attorneys, accountants and other representatives, shall be permitted to make and are authorized to make any searches of governmental records as they deem necessary with respect to the Property; and Seller agrees fully to cooperate with Buyer and its attorneys and other representatives in this regard and to issue any notice of default from any tenant consents or from the holder of any lien or security interest in or encumbering the Real Property, or any portion thereof;authorizations required therefor.
(iii) Notice Buyer agrees to indemnify, defend and reimburse Seller for all costs, expenses (including, without limitation, attorney's fees, consultant and expert fees and court costs) loss and liabilities suffered or incurred by Seller as the result of any actual injuries to persons or threatened litigation against Seller or affecting or relating properties caused by Buyer's entry upon the Property prior to Closing pursuant to the Real Property, or any portion thereof which may materially provisions of this Section 9(d) 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 terminationSection 14.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Keystone Property Trust)
Operations Prior to Closing. (a) After the date of this Agreement and prior to the Closing, as to any of the Assets operated by Seller, Seller agrees shall use, operate and maintain the Assets in substantially the same manner in which they have been used, operated and maintained prior to operate this Agreement and shall cause the Property between Buyer to be listed as a loss payee under Seller’s insurance policies with respect to the Execution Date Assets for the period beginning on and after the Effective Time and through the Closing Date in Date. In the same general manner as Seller has operated event of an insurable loss after the Property during the immediately preceding six (6) month period, paying all costs Effective Time and expenses as they come due, and in any event prior to Closing, upon request of Buyer, Seller shall submit a claim on behalf of Buyer under Seller’s insurance policies with respect to such loss, and maintaining all insurance coverage currently in force.
shall direct Seller’s underwriters to pay any proceeds from such claim directly to Buyer. If prior to the Closing Date (a) a Casualty Loss occurs or the Plant suffers a slow down or shut down of operations and (b) such Casualty Loss, slow down or shut down does not require Seller to take immediate action as a result of an emergency or other exigent circumstance, Seller agrees to consult with Buyer regarding the appropriate remedial action as soon as practicable following such event. Except as otherwise provided herein, during the period from the Effective Time until Closing, Seller shall comply have no liability to Buyer for Claims sustained or liabilities incurred with all respect to the Assets, REGARDLESS OF THE SOLE, JOINT, CONCURRENT OR COMPARATIVE NEGLIGENCE (BUT NOT SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), STRICT LIABILITY, REGULATORY LIABILITY, STATUTORY LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHER FAULT OR RESPONSIBILITY OF SELLER OR ANY OTHER PERSON OR PARTY. After the date hereof and prior to Closing, Seller may (without Buyer’s consent; provided, however, if such consent is required, it will not be unreasonably withheld, delayed or conditioned) enter into agreements or transactions in relation to the Assets which (a) individually involve a reasonably anticipated cost of less than $50,000, individually, and (b) are entered into in the ordinary course of business, consistent with past practices. With Closing, Seller is relieved of and shall not be obligated for any expenditures attributable to periods after the Effective Time, and shall recover any such charges and expenses as part of the obligations Closing Statement and Final Settlement Statement adjustments, as appropriate. Except with respect to those matters described above, if any material expenditure, contract or agreement is proposed or contemplated, Seller shall promptly submit such proposal to Buyer for concurrence with Seller’s recommendation. Buyer will make any required election under its independent evaluation and shall assume the cost and risk of landlord under the Leases any consequences which arise as a result of Buyer’s election to participate or Buyer’s failure to timely elect or election to not participate in or not approve an operation and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or not pay such expenditure, without regard to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Propertywhether Closing occurs. Additionally, after the execution of this Agreement and prior to Closing.
(c) , Seller shall have the right to make any changes, repairs or modifications to the Assets, and incur any related expenditure deemed necessary by Seller or the Plant operator, to prevent or respond to an emergency involving serious risk of loss of or damage to life, property, or the environment. With regard to the preceding sentence, 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 as soon as possible of the Leases emergency and Seller’s or any Permit Plant operator’s response thereto and shall have the right to cause or agreement affecting the Real Propertyeffect such expenditure or action with or without Buyer’s approval, 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 and recover such costs in the Closing without the payment of a specific chargeStatement or Final Settlement Statement adjustments, 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 delayas appropriate. Prior to Closing, Seller shall not enter into any new leases for any portion consult with and advise Buyer regarding all material matters concerning the operation, management, and administration of the Real PropertyAssets. 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 aboveFurthermore, 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 thereofwill not, without the prior written consent of Buyer, except those made by Seller pursuant (w) enter into any agreement or arrangement transferring, selling, or encumbering any of the Assets or directly or indirectly, knowingly solicit, seek, or encourage offers or indications of interest regarding the Assets similar to the express requirements transactions contemplated hereby, (x) grant any preferential or other similar right to purchase any of the Assets, (y) enter into any new processing or sales contract extending beyond the Closing Date and not terminable on thirty (30) days’ notice or less or (z) provide any non-public information regarding the Assets to any other party in connection with any transaction prohibited by clause (w), above. Furthermore, Seller will terminate any existing activities or discussions not required in the normal course of business with respect to the Assets with any party other than Buyer and its representatives. Promptly after execution of this Agreement, those made by tenants pursuant to if applicable, Seller shall notify the holders of the Consents of the transactions contemplated herein and request their consent. Buyer shall have the right to do so under their Leasesreview and approve the form of such notices, 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 such approval not 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 Buyer and Seller each agree to reasonably cooperate with efforts to obtain 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 otherrequired Consents.
(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.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Midstream Partners, LP)
Operations Prior to Closing. (a) After the date of this Agreement and prior to the Closing, as to any of the Assets operated by Seller, Seller agrees to shall use, operate and maintain the Property between the Execution Date and the Closing Date Assets in substantially the same general manner as in which they have been used, operated and maintained prior to this Agreement. During the period from the Effective Time until Closing, Seller has operated shall have no liability to Buyer for Claims sustained or liabilities incurred with respect to the Property during Assets, REGARDLESS OF THE SOLE, JOINT, CONCURRENT OR COMPARATIVE NEGLIGENCE (BUT NOT SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), STRICT LIABILITY, REGULATORY LIABILITY, STATUTORY LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHER FAULT OR RESPONSIBILITY OF SELLER OR ANY OTHER PERSON OR PARTY. After the immediately preceding six (6) month period, paying all costs date hereof and expenses as they come due, and in any event prior to Closing, and maintaining all insurance coverage currently Seller may (without Buyer’s consent) enter into agreements or transactions in force.
relation to the Assets which (a) individually involve a reasonably anticipated cost of less than $50,000, or involve a reasonably anticipated cost which individually, or, in the aggregate, exceeds such amount, to the extent the same are set forth in the budget attached as Schedule 9.1 or (b) are entered into in the ordinary course of business, consistent with past practices. With Closing, Seller is relieved of and shall not be obligated for any expenditures attributable to periods after the Effective Time, and shall recover any such charges and expenses as part of the Closing Statement and Final Settlement Statement adjustments, as appropriate. Except with respect to those matters described above, if any material expenditure, contract or agreement is proposed or contemplated, Seller shall comply promptly submit such proposal to Buyer for concurrence with all Seller’s recommendation. Buyer will make any required election under its independent evaluation and shall assume the cost and risk of the obligations any consequences which arise as a result of landlord under the Leases Buyer’s election to participate or Buyer’s failure to timely elect or election to not participate in or not approve an operation and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or not pay such expenditure, without regard to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Propertywhether Closing occurs. Additionally, after the execution of this Agreement and prior to Closing.
(c) , Seller shall have the right to make any changes, repairs or modifications to the Assets, and incur any related expenditure deemed necessary by Seller, to prevent or respond to an emergency involving serious risk of loss of or damage to life, property, or the environment. With regard to the preceding sentence, 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 as soon as possible of the Leases emergency and Seller’s response thereto and shall have the right to cause or any Permit effect such expenditure or agreement affecting the Real Propertyaction with or without Buyer’s approval, 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 and recover such costs in the Closing without the payment of a specific chargeStatement or Final Settlement Statement adjustments, 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 delayas appropriate. Prior to Closing, Seller shall not enter into any new leases for any portion consult with and advise Buyer regarding all material matters concerning the operation, management, and administration of the Real Property. Any new lease shall be on Buyer's customary form (which may vary to reflect customary negotiated revisions thereto)Assets, and before voting or making any election under any operating, unit, joint venture, or such other form which is reasonably acceptable to Buyersimilar agreement. Further, except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, or as set forth aboveFurthermore, 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 thereofwill not, without the prior written consent of Buyer, except those made by Seller pursuant (x) enter into any agreement or arrangement transferring, selling, or encumbering any of the Assets (other than sale of Sale Hydrocarbons in the ordinary course), (y) grant any preferential or other similar right to purchase any of the express requirements Assets or (z) enter into any new production sales contract not terminable on thirty (30) days’ notice or less. Promptly after execution of this Agreement, those made by tenants pursuant to Seller shall notify the holders of the Consents of the transactions contemplated herein and request their consent. Buyer shall have the right to do so under their Leasesreview and approve the form of such notices, 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 such approval not 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 Buyer and Seller each agree to reasonably cooperate with efforts to obtain 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 otherrequired Consents.
(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.
Appears in 1 contract
Operations Prior to Closing. Between the date of this Agreement of Sale and Closing hereunder;
(a) Seller agrees Buyer shall have the right to operate enter upon the Real Property between to inspect, appraise and perform any tests necessary or desirable to determine the Execution Date suitability and the Closing Date in adaptability of the same general manner Real Property for the Intended Use. After the date of this Agreement of Sale, Seller shall afford Buyer full and complete access to all of Seller's records and files relating to the Real Property which shall remain Seller's property until Closing. Buyer shall give at least verbal notice to Seller before entering the Real Property so Seller can accompany Buyer if it so desires. If Buyer’s inspection activities reveal potential violations of law, Buyer shall promptly notify Seller. The parties agree and acknowledge that Buyer shall not be responsible for any damage caused to any fields or crops as Seller has operated a result of the Property during the immediately preceding six (6) month period, paying all costs and expenses as they come dueBuyer’s exercise of its rights hereunder but Buyer shall be responsible for, and shall indemnify Seller from and against all other injuries to any person or damage toany personal property associated with Buyer’s testing activities at the Real Property. At Seller’s request, Buyer shall provide Seller with copies of all reports, investigations and testing activities performed by Buyer. Buyer shall carry liability insurance in any event an amount of Two Million ($2,000,000) Dollars with respect to such inspection and testing activities, naming Seller as an additional insured and shall deliver a certificate of insurance to Seller prior to Closing, and maintaining all insurance coverage currently in forceundertaking any inspection or testing activities on any part of the Real Property.
(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, Promptly after the Closing.
(c) Seller shall notify Buyer promptly of receipt thereof by 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 deliver 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 copy of any tax assessment disputes (pending xxxx, notice or threatened) prior to Closingstatement of value, and from and after the Due Diligence Expiration Date, Seller not agree to any changes notice of change 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 rate affecting or relating to the Real Property, notice or claim of any portion thereof which may materially and adversely affect violation from any governmental authority or notice of any taking, affecting or relating to 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 terminationProperty.
Appears in 1 contract
Samples: Agreement of Sale (Rottlund Co Inc)
Operations Prior to Closing. After the date of this Agreement and prior to the Closing, Seller shall use and maintain the Assets in substantially the same manner in which they have been used and maintained prior to this Agreement. Unless Seller and Buyer otherwise agree, Seller shall only enter into agreements or transactions in relation to the Assets which (ai) Seller agrees to operate the Property between the Execution Date individually involve a fair market value of less than Ten United States dollars ($10,000.00), and the Closing Date (ii) are entered into in the same general manner ordinary course of business consistent with past practices. In the event that an expenditure for purposes other than day-to-day operations is proposed or contemplated, Seller shall submit such proposal to Buyer for concurrence. Buyer will assume its proportionate share of the risk of any consequences that arise as Seller has operated a result of Buyer's failure or refusal to approve and pay such expenditure. Additionally, after the Property during the immediately preceding six (6) month period, paying all costs signing of this Agreement 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 have the obligations of landlord under the Leases and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound right to make any changes, repairs or to which the Real Propertymodifications, or incur any of themexpenditures necessary relative to the premises to prevent or react to an emergency or environmental incident. With regard to the preceding sentence, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after the Closing.
(c) Seller shall notify attempt to secure Buyer's consent prior to any such expenditure or action, however, Seller shall have the right to effect such expenditure or action with or without such approval, acting as would any prudent operator under similar circumstances. Unless Buyer promptly of Seller's receipt of any notice from any party alleging that and 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 delayotherwise agree, Seller shall not enter into materially alter the Assets (other than the use of supplies and consumables) or remove any new leases for any portion improvements, equipment or property which comprise the Assets (other than the use of the Real Propertysupplies and consumables). Any new lease shall be on Buyer's customary form (If because of legally binding agreements which may vary to reflect customary negotiated revisions thereto), or such other form which is reasonably acceptable to Buyer. Further, except with the existed 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 date of this Agreement, those made by tenants pursuant Seller, after the date of Agreement, but prior to Closing, acquires assets related to the right Assets or otherwise improves the Assets, the Purchase Price shall be increased by an amount equal to do so under their Leases, or the consideration to be paid by Seller if required by applicable law for such acquisition or ordinanceimprovement of the Assets, and the acquired asset or as required under any Lease.
(g) improvement shall be transferred hereunder. 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 promptly notify Buyer of any tax assessment disputes (pending or threatened) prior material matter affecting the Assets known to Closing, and Seller which arises 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 date of this Agreement 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 date 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 otherClosing.
(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.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wyoming Oil & Minerals Inc)
Operations Prior to Closing. (a) After the date of this Agreement and prior to the Closing as to any of the Assets operated by Seller, Seller agrees shall use, operate and maintain the Assets in substantially the same manner in which they have been used, operated and maintained prior to operate this Agreement. During the Property between the Execution Date and period from the Closing Date until Seller is replaced as operator, and subject to Sections 3.3.5 and 3.3.7, Seller as operator shall have no liability to Buyer for losses, Claims or damages sustained or liabilities incurred by Buyer, except such Buyer losses, Claims or damages as may result directly and solely from Seller’s gross negligence or willful misconduct. Unless Seller and Buyer otherwise agree, or as may be disclosed on Exhibit B hereto, during the period from Effective Date until Closing, Seller shall only enter into agreements or transactions in relation to the Assets which (i) individually involve a fair market value of less than Two Hundred Fifty Thousand United States dollars ($250,000.00), net to Seller’s interest, and (ii) are entered into in the same general manner as ordinary course of business consistent with past practices. Unless otherwise provided herein, Seller has operated shall not be obligated for any expenditures after the Property during execution of this Agreement or the immediately preceding six (6) month periodEffective Date, paying all costs whichever is the earlier, and shall recover any charges and expenses as they come duepart of the Final Settlement Statement adjustments as appropriate. Such charges and expenses include, but are not limited to, those incurred pursuant to the authority for expenditures (“AFEs”) listed on Exhibit B hereto. In the event that an expenditure for purposes other than day-to-day operations or those pursuant to the AFEs is proposed or contemplated, Seller shall submit such proposal to Buyer for concurrence. From and after Closing, Buyer will assume the risk of any consequences which arise as a result of Buyer’s failure or refusal to participate in any event or approve and pay such expenditure. Additionally, after the signing of this Agreement and prior to Closing, and maintaining all insurance coverage currently in force.
(b) Seller shall comply with all of have the obligations of landlord under the Leases and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound right to make any changes, repairs or to which the Real Propertymodifications, or incur any of themexpenditure deemed necessary by Seller to prevent or react to an emergency or environmental incident. With regard to the preceding sentence, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after the Closing.
(c) Seller shall notify attempt to secure Buyer’s consent prior to any such expenditure or action, however, Seller shall have the right to cause or effect such expenditure or action with or without such approval, acting as would any prudent operator under similar circumstances. Unless Buyer promptly of Seller's receipt of any notice from any party alleging that and 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 delayotherwise agree, Seller shall not enter into materially alter the Assets (other than the use of supplies and consumables) or remove any new leases for any portion improvements, equipment or property which comprise the Assets (other than the use of the Real Propertysupplies and consumables). 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 promptly notify Buyer of any tax assessment disputes (pending or threatened) prior material matter affecting the Assets known to Closing, and Seller which arises 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 date of this Agreement 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 date 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 otherClosing.
(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.
Appears in 1 contract
Operations Prior to Closing. Between the date of this Agreement and Closing:
(a) Seller agrees shall, at its expense: make all repairs and replacements, structural and non-structural, which are required with respect to operate any portion of the Property between the Execution Date and the Closing Date to maintain it in the same general manner as Seller has operated the Property during the immediately preceding six its present condition, except only damage by Casualty (6) month period, paying all costs and expenses as they come duewhich term is defined in, and in shall be governed by, the provisions of Section 11 below); perform all of its obligations under the Tenant Leases and cause the Tenants to perform all of their obligations under the Tenant Leases; and cure (or cause the Tenants to cure) all notices of any event Violations and/or Defect Notices issued prior to Closing, and maintaining all insurance coverage currently in force.
(b) Seller shall comply with all not enter into any agreement to modify, amend or otherwise alter any of the obligations terms or provisions of landlord under the Tenant 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, the Service Agreements; 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 an new leases for any portion lease or other agreement with respect to the use or occupancy of the Real Property. Any new lease shall be on Buyer's customary form (which may vary to reflect customary negotiated revisions thereto), Property and/or the maintenance 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 operation thereof, without the prior written consent of Buyer.
(c) Seller shall perform all acts, except those made and shall make all payments, necessary to cause the representations and warranties of Seller in this Agreement to be true and correct.
(i) Buyer, its attorneys, accountants, architects, engineers and other representatives shall be afforded access to the Property and to all books, records and files relating thereto from time to time prior to Closing for the purposes of inspections, preparation of plans, taking of measurements, making of surveys, making of appraisals, and generally for the ascertainment of the condition of the Property, including but not limited to the physical and financial condition of the Property; and there shall be furnished to Buyer all plans and specifications, engineering reports, feasibility studies, operating statements, governmental permits and approvals, contracts, leases, surveys, title information and other documentation concerning the Property in the possession of Seller and/or Seller's management agent for the Property.
(ii) Buyer, its attorneys, accountants and other representatives, shall be permitted to make and are authorized to make any searches of governmental records as they deem necessary with respect to the Property; and Seller agrees fully to cooperate with Buyer and its attorneys and other representatives in this regard and to issue any consents or authorizations required therefor.
(iii) Buyer agrees to indemnify, defend and reimburse Seller for all costs, expenses (including, without limitation, attorney's fees, consultant and expert fees and court costs) loss and liabilities suffered or incurred by Seller as the result of any injuries to persons or properties caused by Buyer's entry upon the Property prior to Closing pursuant to the express requirements provisions of this Section 9(d). The obligations of Buyer pursuant to this Section 9(d)(iii) shall survive Closing and/or any termination of this Agreement.
(e) Promptly after receipt thereof by Seller, those made by tenants pursuant Seller shall deliver to Buyer the following:
(i) a copy of any notice of default given or received under any of the Tenant Leases or the Service Agreements;
(ii) a copy of any tax xxxx, notice or statement of value, or notice of change in a tax rate affecting or relating to the right Property;
(iii) a copy of any notice of an actual or alleged Violation; and
(iv) a copy of any notice of Taking.
(f) Seller shall complete and deliver for execution by each of the Tenants a written certification in the form of Exhibit F-1 to do so this Agreement, but modified and supplemented by Buyer's counsel to reflect the terms and provisions of each of the respective Tenant Leases (each, "Tenant Estoppel Certificate"); and shall use its best efforts to obtain an executed Tenant Estoppel Certificate (dated no more than thirty (30) days prior to the Closing Date) from each of the Tenants. Seller shall deliver to Buyer a copy of each of the executed Tenant Estoppel Certificates delivered to Seller promptly after receiving each such certificate. If, notwithstanding the use of its best efforts, Seller has been unable to obtain Tenant Estoppel Certificates from all Tenants under their the Tenant Leases, then, in lieu of each Tenant Estoppel Certificate which Seller has not obtained from a Tenant, Seller, shall, instead, execute and deliver to Buyer a Tenant Estoppel Certificate executed by Seller; provided, however, that if Buyer does not choose to accept any of the Seller's executed Tenant Estoppel Certificates, Buyer shall have the right, at Buyer's sole option to terminate this Agreement by giving written notice of termination to Seller on or by Seller if required by applicable law or ordinanceprior to the scheduled Closing Date, or as required under any Leasein which event the Deposit shall be returned to Buyer.
(g) Seller shall timely xxxx complete and deliver for execution by each of the Tenants a Subordination, Non-Disturbance and Attornment agreement in the form of Exhibit F-2 to this Agreement, but modified and supplemented by Buyer's counsel to reflect the terms and provisions of each of the respective Tenant Leases (each, "SNDA"); and Seller shall use its best efforts to obtain an executed SNDA from each of the Tenants. Seller shall deliver to Buyer a copy of each of the executed SNDAs delivered to Seller promptly after receiving each such SNDA. If, notwithstanding the use of its best efforts, Seller has been unable to obtain SNDAs from all tenants for all rent billable Tenants under the Tenant Leases, and use commercially reasonable efforts then, Buyer shall have the right, at Buyer's sole option to collect any rent terminate this Agreement by giving written notice of termination to Seller on or prior to the scheduled Closing Date, in arrearswhich event the Deposit shall be returned to Buyer.
(h) With respect to each of the Tenant Leases, if any, which grants to the Tenant a right or option to purchase all or any portion of the Property ("Purchase Option Rights"), Seller shall notify prepare and deliver for execution by each of such Tenants a written release and termination of such right or option in form acceptable to 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 Title Company (to induce the tax year in which the Closing occurs, it is agreed that the amount of tax savings or refund for Title Company to remove such tax year, less the reasonable fees and disbursements in connection with such proceedings, shall be apportioned between the parties option to purchase as of the date real estate taxes are apportioned under this Agreement. All refunds relating an exception 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 othertitle) ("Tenant Option Waiver").
(i) Seller shall notify Buyer promptly With respect to each 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 Tenant Leases, if any, which grants to the conditionTenant a right of first offer, use right of first refusal, or occupancy of the Real Property, similar right to purchase all or any portion thereof;
of the Property (ii"Right of First Refusal Rights"), Seller shall complete and deliver for execution by each of such Tenants, in form acceptable to Buyer and to the Title Company, a waiver and release of such right or option with respect to the conveyance of the Property by Seller pursuant to this Agreement (to induce the Title Company affirmatively to insure Buyer that such Tenants' rights of first offer, rights of first refusal or similar rights are not applicable to the conveyance of the Property by Seller pursuant to this Agreement) Receipt and that such rights of first offer, rights of first refusal or similar rights shall not be applicable to (and shall not be activated by) any foreclosure of any notice of default from Mortgage lien on the Property or any tenant or from Deed granted by the Mortgagor to the holder of any lien Mortgage in lieu of foreclosure of such Mortgage; and that any such foreclosure sale or security interest transaction in or encumbering connection with the Real Property, or delivery of the Deed in lieu of foreclosure may be consummated without first offering to such Tenant any portion thereof;right to purchase the Property pursuant to the terms and provisions of its respective Tenant Lease ("Tenant Right of First Refusal Waiver").
(iiij) Notice With respect to each of any actual or threatened litigation against Seller or affecting or relating the brokers entitled to an Assumed Commission Obligation, a written confirmation of the Real Property, or any portion amount 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"Broker Confirmation Letter").
Appears in 1 contract
Samples: Agreement of Sale and Purchase (American Real Estate Investment Corp)
Operations Prior to Closing. (a) Seller Laurel Oak agrees to operate the Property between the Execution Effective Date and the Closing Date in the same general manner as Seller Laurel Oak 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 Laurel Oak 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 Laurel Oak is bound or to which the Real Property, or any of them, are subject, and which will be binding upon Buyer the Partnership or a lien upon such Real Property, after the Closing.
(c) Seller Laurel Oak shall notify Buyer the Partnership promptly of SellerLaurel Oak's receipt of any notice from any party alleging that Seller Laurel Oak 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 Laurel Oak 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 Buyerthe Partnership, which Buyer the Partnership agrees it shall not unreasonably withhold, condition or delayxxxxx, Seller Xxxxxx Oak shall not enter into any new leases for any portion of the Real Property. Any new lease shall be on Buyerthe Partnership's customary form (which may vary to reflect customary negotiated revisions thereto), or such other form which is reasonably acceptable to Buyerthe Partnership. Further, except with the prior written consent of Buyerthe Partnership, which Buyer the Partnership agrees it shall not unreasonably withhold, condition or delay, or as set forth above, Seller Laurel Oak 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 Laurel Oak 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 Buyerthe Partnership, except those made by Seller Laurel Oak 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 Laurel Oak if required by applicable law or ordinance, or as required under any Lease.
(g) Seller Laurel Oak shall timely xxxx all tenants for all rent billable under Leases, and use commercially reasonable efforts to collect any rent in arrears.
(h) Seller Laurel Oak shall notify Buyer the Partnership of any tax assessment disputes (pending or threatened) prior to Closing, and from and after the Due Diligence Expiration Date, Seller Laurel Oak 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 Buyerthe Partnership'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 SellerLaurel Oak, and all refunds relating to any year subsequent to the year in which Closing occurs shall be the sole property of Buyerthe Partnership. Each party agrees to promptly remit to the other any refund received by it which is the property of the other.
(i) Seller Laurel Oak shall notify Buyer the Partnership 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 Laurel Oak or affecting or relating to the Real Property, or any portion thereof which may materially and adversely affect the Real Property or SellerLaurel Oak's ability to consummate the transactions contemplated by this Agreement; andor
(iv) Vacancy of any demised Property by a tenant, other than in accordance with a scheduled lease termination.
Appears in 1 contract
Samples: Agreement (Brandywine Realty Trust)
Operations Prior to Closing. (a) After the date of this Agreement and prior to the Closing, as to any of the Assets operated by Seller, Seller agrees to shall use, operate and maintain the Property between the Execution Date and the Closing Date Assets in substantially the same general manner as in which they have been used, operated and maintained prior to this Agreement. During the period from the Effective Time until Closing, Seller has operated shall have no liability to Buyer for Claims sustained or liabilities incurred with respect to the Property during Assets, REGARDLESS OF THE SOLE, JOINT, CONCURRENT OR COMPARATIVE NEGLIGENCE (BUT NOT SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), STRICT LIABILITY, REGULATORY LIABILITY, STATUTORY LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHER FAULT OR RESPONSIBILITY OF SELLER OR ANY OTHER PERSON OR PARTY. After the immediately preceding six (6) month period, paying all costs date hereof and expenses as they come due, and in any event prior to Closing, Seller may (without Buyer’s consent) enter into agreements or transactions in relation to the Assets which (a) individually involve a fair market value of less than $25,000, and maintaining all insurance coverage currently in force.
which are consistent with past practices of Seller during the preceding calendar year, and (b) are entered into in the ordinary course of business, consistent with past practices. With Closing, Seller is relieved of and shall not be obligated for any expenditures attributable to periods after the Effective Time, and shall recover any such charges and expenses as part of the Closing Statement and Final Settlement Statement adjustments, as appropriate. Except with respect to those matters described above, if any material expenditure, contract or agreement is proposed or contemplated, Seller shall comply submit such proposal to Buyer for concurrence with all Seller’s recommendation. Buyer will make any required election under its independent evaluation and shall assume the cost and risk of the obligations any consequences which arise as a result of landlord under the Leases Buyer’s election to participate or Buyer’s failure to timely elect or election to not participate in or not approve an operation and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or not pay such expenditure, without regard to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Propertywhether Closing occurs. Additionally, after the execution of this Agreement and prior to Closing.
(c) , Seller shall have the right to make any changes, repairs or modifications to the Assets, and incur any related expenditure deemed necessary by Seller, to prevent or react to an emergency involving serious risk of loss of or damage to life, property, or the environment. With regard to the preceding sentence, 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 as soon as possible of the Leases emergency and Seller’s response thereto and shall have the right to cause or any Permit effect such expenditure or agreement affecting the Real Propertyaction with or without Buyer’s approval, 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 and recover such costs in the Closing without the payment of a specific chargeStatement or Final Settlement Statement adjustments, 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 delayas appropriate. Prior to Closing, Seller shall not enter into any new leases for any portion (i) consult with and advise Buyer regarding all material matters concerning the operation, management, and administration of the Real Property. Any new lease shall be on Assets; and (ii) obtain Buyer's customary form (which may vary to reflect customary negotiated revisions thereto)’s written approval before voting under any operating, unit, joint venture, or such other form which is reasonably acceptable to Buyersimilar agreement. Further, except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, or as set forth aboveFurthermore, 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 thereofwill not, without the prior written consent of Buyer, except those made by Seller pursuant (x) enter into any agreement or arrangement transferring, selling, or encumbering any of the Assets; (y) grant any preferential or other similar right to purchase any of the express requirements Assets; or (z) enter into any new production sales contract extending beyond the Closing Date and not terminable on thirty (30) days’ notice or less. Promptly after execution of this Agreement, those made by tenants pursuant to Seller shall notify the holders of the Consents of the transactions contemplated herein and request their consent. Buyer shall have the right to do so under their Leasesreview and approve the form of such notices, 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 such approval not 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 Buyer and Seller each agree to reasonably cooperate with efforts to obtain 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 otherrequired consents.
(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.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Constellation Energy Partners LLC)
Operations Prior to Closing. (a) Seller covenants and agrees that between the date hereof and the Closing, Seller will:
4.01 Continue to operate the Property between the Execution Date and the Closing Date Resort as heretofore operated in the same general manner as Seller has operated normal course of business and in accordance with its customary business practices.
4.02 Perform required maintenance and replacements in accordance with its customary practices.
4.03 Afford Buyer and its representatives full access to the Property during the immediately preceding six (6) month period, paying all costs Resort and expenses as they come dueto Seller's books, and files relating to the Resort and make same available to Buyer whether they are located on or off the Property, at reasonable times, and without undue delay, up to and including the date of the Closing.
4.04 Pay, in the normal course of business, and, in any event prior to Closing, sums due for work, materials or services furnished or a incurred in the ownership and maintaining all insurance coverage currently in force.
(b) Seller shall comply with all operation of the obligations Resort up to and including the date of landlord under Closing, except as otherwise specifically treated in 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 provisions of this Agreement. Not prepay any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Property, material item after the Closing.
(c) Seller shall notify Buyer promptly date 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 this Agreement without the payment of a specific charge, cost, penalty or premium for such termination.
(e) Except with the prior written consent of Buyer.
4.05 Except for daily room rental agreements in the ordinary course of business which are not discounted more than twenty-five percent (25%) from the full "rack" rate, which Buyer agrees it shall not unreasonably withhold, condition or delay, Seller shall not enter into any new leases for material agreement nor renew, amend, modify or terminate any portion of existing material agreement relating to 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 Resort without having obtained the prior written consent of BuyerBuyer in each such instance, which Buyer agrees it shall will not be unreasonably withholdwithheld or delayed. Material agreements will include, condition or delaywithout limitation, airline and travel agent commitments, automobile leases, or as set forth aboveroom or other facility commitments which are discounted more than twenty-five (25%) from their full rates.
4.06 Not grant or transfer or permit the grant or transfer of any interest in the Resort or any item being sold pursuant to this Agreement or grant any execution rights in connection therewith, Seller shall not amendexcept for any items being replaced with comparable items of equal or greater value in the ordinary course of business.
4.07 Not discontinue compliance with governmental requirements applicable to the Resort.
4.08 Promptly advise Buyer of any threatened or actual litigation or governmental investigation or proceeding affecting the Resort, extend (except where required under the terms of the Lease in question)its licenses, terminate (except by reason of a tenant's default), accept surrender ofits operation, or those persons materially involved in its operation. It shall be a condition precedent to Buyer's obligation to close that there shall be no such matters threatened or pending at Closing having a potential significant and material adverse effect on the Resort or upon Seller's ability to convey the Resort to Buyer.
4.09 Not permit any assignments or subleases ofmaterial alteration, 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 structural modification or additions to the Real PropertyResort except in the nature of ordinary maintenance.
4.10 Except for daily room rental agreements in the ordinary course of business, not create (or agree to create) any portion thereofcontract grant option, lease, covenant restriction, easement encumbrance or lien on or affecting the Resort nor do anything negatively affecting title thereto, 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 Leasebuyer.
(g) 4.11 As a condition precedent to Buyer's obligation to close, Seller shall timely xxxx have duly performed all tenants for all rent billable under Leases, covenants and use commercially reasonable efforts other obligations 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, performed by 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 otherSection 4.
(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.
Appears in 1 contract
Samples: Memorandum of Understanding (Reynolds Debbie Hotel & Casino Inc)
Operations Prior to Closing. (a) After the date of this Agreement and prior to the Closing, as to any of the Assets operated by Seller, Seller agrees to shall use, operate and maintain the Property between the Execution Date and the Closing Date Assets in substantially the same general manner as in which they have been used, operated and maintained prior to this Agreement. During the period from the Effective Time until Closing, Seller has operated shall have no liability to Buyer for Claims sustained or liabilities incurred with respect to the Property during Assets, REGARDLESS OF THE SOLE, JOINT, CONCURRENT OR COMPARATIVE NEGLIGENCE (BUT NOT SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), STRICT LIABILITY, REGULATORY LIABILITY, STATUTORY LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHER FAULT OR RESPONSIBILITY OF SELLER OR ANY OTHER PERSON OR PARTY. After the immediately preceding six (6) month period, paying all costs date hereof and expenses as they come due, and in any event prior to Closing, Seller may (without Buyer’s consent) enter into agreements or transactions in relation to the Assets which (a) individually involve a fair market value of less than $25,000, individually, or, in the aggregate exceed the amounts set out in the budget attached as Schedule 9.1 and maintaining all insurance coverage currently in force.
(b) are entered into in the ordinary course of business, consistent with past practices. With Closing, Seller is relieved of and shall not be obligated for any expenditures attributable to periods after the Effective Time, and shall recover any such charges and expenses as part of the Closing Statement and Final Settlement Statement adjustments, as appropriate. Except with respect to those matters described above, if any material expenditure, contract or agreement is proposed or contemplated, Seller shall comply submit such proposal to Buyer for concurrence with all Seller’s recommendation. Buyer will make any required election under its independent evaluation and shall assume the cost and risk of the obligations any consequences which arise as a result of landlord under the Leases Buyer’s election to participate or Buyer’s failure to timely elect or election to not participate in or not approve an operation and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or not pay such expenditure, without regard to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Propertywhether Closing occurs. Additionally, after the execution of this Agreement and prior to Closing.
(c) , Seller shall have the right to make any changes, repairs or modifications to the Assets, and incur any related expenditure deemed necessary by Seller, to prevent or react to an emergency involving serious risk of loss of or damage to life, property, or the environment. With regard to the preceding sentence, 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 as soon as possible of the Leases emergency and Seller’s response thereto and shall have the right to cause or any Permit effect such expenditure or agreement affecting the Real Propertyaction with or without Buyer’s approval, 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 and recover such costs in the Closing without the payment of a specific chargeStatement or Final Settlement Statement adjustments, 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 delayas appropriate. Prior to Closing, Seller shall not enter into any new leases for any portion (i) consult with and advise Buyer regarding all material matters concerning the operation, management, and administration of the Real Property. Any new lease shall be on Assets; and (ii) obtain Buyer's customary form (which may vary to reflect customary negotiated revisions thereto)’s written approval before voting under any operating, unit, joint venture, or such other form which is reasonably acceptable to Buyersimilar agreement. Further, except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, or as set forth aboveFurthermore, 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 thereofwill not, without the prior written consent of Buyer, except those made by Seller pursuant (x) enter into any agreement or arrangement transferring, selling, or encumbering any of the Assets; (y) grant any preferential or other similar right to purchase any of the express requirements Assets; or (z) enter into any new production sales contract extending beyond the Closing Date and not terminable on thirty (30) days’ notice or less. Promptly after execution of this Agreement, those made by tenants pursuant to Seller shall notify the holders of the Consents of the transactions contemplated herein and request their consent. Buyer shall have the right to do so under their Leasesreview and approve the form of such notices, 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 such approval not 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 Buyer and Seller each agree to reasonably cooperate with efforts to obtain 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 otherrequired consents.
(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.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Constellation Energy Partners LLC)
Operations Prior to Closing. Except as otherwise expressly provided in this Agreement, until the Closing or earlier termination of this Agreement:
(a) Seller agrees to will operate the Property between (including its actions with respect to the Execution Date and the Closing Date Leases) in the same general a manner as Seller has operated the Property during the immediately preceding six (6) month period, paying all costs and expenses as they come dueconsistent with its Past practices, and maintain it in any event prior its condition existing at the time of this Agreement, ordinary wear and tear and casualty damage excepted, subject to Closing, and maintaining all insurance coverage currently in forceParagraph 7.
(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 will not sell, assign, or convey any right, title, or interest whatsoever in or to which the Real PropertyProperty or create or permit to exist any lien, encumbrance, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after charge thereon without promptly discharging the Closing.same;
(c) Except as otherwise approved by Buyer in writing, Seller will not modify, extend, cancel, amend, renew or enter into any Lease, Contract or other obligation pertaining to the Property or the operation thereof (except as any Tenant shall be entitled under the present terms of its Lease), or take any action to dispossess any Tenant. Seller shall notify Buyer promptly of Seller's receipt not, without first obtaining the prior written approval by Buyer: (i) accept the surrender of any notice from Contract or Lease or grant any party alleging that Seller is in default rent concession or other material concession, any promise of its obligations under any of the Leases or any Permit or agreement affecting the Real Propertywork, or any portion rebate, allowance or portions thereof.
free rent for any period from and after the Closing Date not provided for in any Contract or Lease as of the Execution Date; (dii) No contract for remove any Personal Property located in 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 chargeProperty, 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)for repair and replacement; (iii) enter into or establish any material obligation on behalf of or which would be binding upon Buyer; or (iv) make any material changes to the Property. All replacements shall be free and clear of liens and encumbrances and shall be of quality at least equal to the replaced items and shall be deemed included in this sale, nor accept without cost or expense to Buyer; provided that nothing contained herein shall require Seller to make any rental more than one (1) month replacements except in advance (exclusive the case of Seller's removal of now-existing Personal Property. Seller shall keep Buyer reasonably informed of any security deposit).
(f) Seller transactions pertaining to new Leases and the terms thereof, and shall not make or permit send Buyer execution copies of all such Leases and Contracts to be made any capital improvements or additions accompany Seller's request for Buyer's consent thereto. With respect 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 foregoing provisions 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.
subparagraph (gc): (i) 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 approval 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.
Appears in 1 contract
Samples: Agreement of Sale (Pennsylvania Real Estate Investment Trust)
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 Without the prior written consent of BuyerBuyer to act otherwise, 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 and subject to the Real Propertyconstraints of applicable operating and other agreements, or any portion thereof, without during the prior written consent period from the date of Buyer, except those made by Seller pursuant execution of this Agreement 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 Closing 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 followingwill not:
(i) Receipt of notice from sell, transfer or abandon any governmental or quasi-governmental agency or authority or insurance underwriter relating to the condition, use or occupancy part of the Real PropertyAssets, or voluntarily permit any portion thereofof the Assets or any material rights with respect thereto to expire, or waive or release any material rights in respect of the Properties (except, in the ordinary course of business, for the abandonment of Leases upon the expiration of their respective primary terms or if not capable of production in paying quantities);
(ii) Receipt except for activities in connection with the drilling of the Well Locations described in Schedule 8.1(a)(ii), which has been approved by Buyer, approve or cause any notice operation, or series of default from related operations, with respect to any tenant of the Properties anticipated in any instance to cost more than $200,000 per activity net to direct or indirect interest of Seller (except for emergency operations, operations required under presently existing contractual obligations and ongoing commitments under existing AFE’s as described in Schedule 8.1(a)(ii)). All expenditures (from the holder first dollar) incurred by Seller for operations consented to by Buyer pursuant to this Section 8.1(a)(ii) which are anticipated to exceed such $200,000 limit are herein called “Approved Expenditures” and the Purchase Price shall be increased by an amount equal to the aggregate amount of all Approved Expenditures. Notwithstanding the foregoing, any lien or security interest in or encumbering the Real Propertyexpenditures incurred for what Seller reasonably deems to be an emergency operation, or any portion thereofyet conducted without Buyer’s consent, shall be Approved Expenditures;
(iii) Notice enter into any new marketing contracts or agreements providing for the sale or disposition of any actual or threatened litigation against Seller or affecting or relating to Hydrocarbons produced from 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; andProperties for a term in excess of 30 days;
(iv) Vacancy modify, amend or terminate any of the Material Contracts or Leases;
(v) encumber any of the Properties, or acquire any additional interests in any of the Properties other than non-consent interests; or
(vi) convey or dispose of any demised Property by a tenant, material part of the Assets (other than replacement of equipment or sale of Hydrocarbons produced from the Assets in accordance with a scheduled lease terminationthe regular course of business) or enter into any farmout, or enter into any farmin or other similar contract affecting the Properties.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Plains Exploration & Production Co)
Operations Prior to Closing. Between the date of the execution of this Agreement and Closing:
(a) Seller agrees to operate shall, at its expense: perform all of its obligations under the Property between the Execution Date Existing Lease and the Closing Date in the same general manner as Seller has operated the Property during the immediately preceding six (6) month period, paying New Lease and cure all costs and expenses as they come due, and in notices of any event Violations and/or Defect Notices issued prior to Closing, and maintaining all insurance coverage currently in force.
(b) Seller shall comply with all not enter into any agreement to modify, amend or otherwise alter any of the obligations terms or provisions of landlord under the Leases Existing Lease (except as expressly provided above) or the New Lease; and all (except for the New Lease) Seller shall not enter into a new lease or other agreements and contractual arrangements affecting agreement with respect to the Real Property by which Seller is bound use or to which occupancy of the Real Property, or any without prior written approval of them, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after the ClosingBuyer.
(c) Seller shall notify Buyer promptly perform all acts, and shall make all payments, necessary to cause the representations and warranties 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 thereofthis Agreement to be true and correct.
(di) No contract for or on behalf of or affecting the Real Property Buyer, its attorneys, accountants, architects, engineers and other representatives shall be negotiated afforded access to the Property and to all books, records and files relating thereto from time to time prior to Closing for the purposes of inspections, preparation of plans, taking of measurements, making of surveys, making of appraisals, and generally for the ascertainment of the condition of the Property, including but not limited to the physical and financial condition of the Property; and there shall be furnished to Buyer all plans and specifications, engineering reports, feasibility studies, operating statements, governmental permits and approvals, contracts, leases, surveys, title information and other documentation concerning the Property in the possession of Seller and/or Seller's management agent for the Property.
(ii) Buyer agrees to indemnify, defend and reimburse Seller for all costs, expenses (including, without limitation, attorney?s fees, consultant and expert fees and court costs) loss and liabilities suffered or entered into which cannot be terminated incurred by Seller as the result of any bodily injuries to persons or properties caused by Buyer?s entry upon the Property prior to Closing without pursuant to the payment provisions of this Section 10(d). Buyer?s obligations pursuant to this subparagraph 10(d)(ii) shall survive any termination of this Agreement as a specific charge, cost, penalty or premium for such terminationseparately enforceable covenant.
(e) Except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delayPromptly after receipt thereof by Seller, Seller shall not enter into deliver to Buyer the following:
(i) a copy of any new leases for notice of default given or received under the Existing Lease; or the New Lease
(ii) a copy of any portion tax xxxx, notice or statement of the Real Property. Any new lease shall be on Buyer's customary form (which may vary to reflect customary negotiated revisions thereto)value, or such other form which is reasonably acceptable notice of change in a tax rate affecting or relating 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 Property;
(except where required under the terms of the Lease in question), terminate (except by reason of iii) 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 copy of any security deposit)notice of an actual or alleged Violation; and
(iv) a copy of any notice of Taking.
(f) Seller shall not make permit Buyer to negotiate with the Tenant any changes or permit to be made any capital improvements or additions modifications to the Real PropertyNew Lease; provided, however, that Buyer shall have no obligation to agree or consent to any portion thereof, without such changes. Seller agrees to use its best efforts to assist Buyer in obtaining the prior written consent agreement of Buyer, except those made by Seller pursuant the Tenant to the express requirements terms and provisions of this Agreementthe New Lease and to cause the Tenant to execute the New Lease as of January 1, 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 Lease1998.
(g) Seller shall timely xxxx all tenants deliver for all rent billable under Leasesexecution by the Tenant a Subordination, Nondisturbance and Attornment Agreement (?SNDA?) in the form attached to the New Lease for the benefit of any proposed mortgagee to provide financing to Buyer in connection with Buyer?s acquisition of the Property; and Seller agrees to use commercially reasonable its best efforts to collect any rent assist Buyer in arrearsobtaining the executed SNDA from the Tenant.
(h) Seller shall notify Buyer deliver for execution by the Tenant a written certification which shall be prepared by Buyer?s counsel (utilizing the form attached to this Agreement as Exhibit E, (but modified and supplemented by Buyer?s counsel to reflect the terms and provisions of any tax assessment disputes the New Lease) (pending or threatened) prior to Closingsuch certification being herein called the ?Tenant Estoppel Certificate?), and Seller shall obtain the executed Tenant Estoppel Certificate from and after the Due Diligence Expiration Date, Tenant. Seller not agree shall deliver 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 Buyer a copy 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 executed Tenant Estoppel Certificate obtained by 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 otherafter Seller?s receipt thereof.
(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.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (American Real Estate Investment Corp)
Operations Prior to Closing. (a1) Seller agrees to operate maintain Seller’s insurance now in effect with respect to the Property between Assets through the Execution Date and date of Closing. From the date of execution of this Agreement to the Closing Date Date, Seller shall pay or cause to be paid all Property Expenses incurred in connection with the same general manner ownership or operation of the Assets. Except for Capital Projects listed on Exhibit F as of the date of this Agreement, Seller has operated will timely notify Buyer of proposed activities and major capital expenditures that could reasonably be expected to cost in excess of $50,000 per activity (net to Seller’s interest) conducted on the Property during Assets. Seller will keep Buyer timely informed of all material developments affecting any of 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 forceAssets.
(b2) As of the date hereof, Seller has received the New Well Proposals attached as Exhibit N. Exhibit N sets forth the deadline date for Seller to make an election with respect to each New Well Proposal therein (each, an “Identified Well Deadline Date”). For example, the Identified Well Deadline Date for the Coronet 24-13-163-99H Well is April 25, 2012. Following the date hereof and until the Closing, it is contemplated that Seller shall receive proposals from an operator with associated costs or estimates thereof which exceed $50,000 per well net to Seller’s interest (the “Post-Signing Well Proposals”, and together with the New Well Proposals, the “Well Proposals”), with each such Post-Signing Well Proposal containing a deadline date for Seller to make an election to participate in the proposed operation set forth therein (each, a “Post-Signing Well Deadline Date”, and together with each Identified Well Deadline Date, a “Well Deadline Date”). At least two business days prior to the Well Deadline Date, Buyer shall notify Seller of whether Buyer would like Seller to consent to participate in the applicable Well Proposal; provided, that (A) Seller shall comply with be obligated to make an election to participate in the Well Proposal if requested by Buyer and (B) to the extent the Well Deadline Date for a Well Proposal occurs three days or more following Closing and if Buyer does not inform Seller of whether Buyer would like Seller participate in such Well Proposal, then upon Closing, Buyer shall acquire all of Seller’s right to make such an election. Upon an election by Seller to participate in a Well Proposal which Buyer caused Seller to make, the obligations applicable new well shall be considered a Capital Project and included among the Assets as a Well hereunder. If Buyer notifies Seller that it desires for Seller to elect to not participate in a Well Proposal, Seller may make such election (and provide notice of landlord such election to Buyer) for its own account and the wellbore of the well associated with such proposal shall be excluded from the Assets at Closing; provided, further that if the operation to drill such well is a “Required Well” or a “Required Operation” as defined in Article XV.D of the Samson Operating Agreement, then the leases and only the leases that would be relinquished and assigned under Article XV.D of the Samson Operating Agreement shall also be excluded from the Assets at Closing; provided, further, that such well and leases shall only be excluded from the Assets if such well is actually drilled and Seller actually participates in such well and pays for its proportionate share of the drilling and completion operations for such well. If Closing does not occur because Buyer wrongfully fails to tender performance at Closing or otherwise breaches this Agreement prior to Closing and Seller is ready to close, Buyer shall assume and indemnify Seller from all liabilities for such operations for such new xxxxx associated with the Well Proposals in which Buyer notified Seller that Buyer would like for Seller to participate in such proposals under the Leases Samson Operating Agreement; and all other agreements the interest of Seller in such xxxxx, at Seller’s option, may be deemed to be farmed out to Buyer under and contractual arrangements affecting pursuant to the Real Property by terms provided for in the Farmout Agreement dated, September 28, 2011, as set forth on Exhibit D.
(3) As of the date hereof, Seller has received the proposals for elections under the AMI Clause attached as Exhibit O (each, an “Identified AMI Lease Acquisition Proposal”). Exhibit O sets forth the deadline date for Seller to make an election with respect to whether or not Seller shall participate in the costs of acquiring the oil and gas leases described therein (each, an “Identified AMI Lease Deadline Date”). For example, the Identified AMI Lease Deadline Date for the oil and gas lease dated January 31, 2012 from the City of Xxxxxx is April 24, 2012. Following the date hereof and until the Closing, it is contemplated that Seller shall receive proposals from parties to the Samson Operating Agreement pursuant to an acquisition under the AMI Clause in which Seller is bound must elect whether or not to which participate in the Real Propertycosts of acquiring the oil, gas and/or mineral lease, leasehold estate or any of them, are subjectother interest described therein (the “Post-Signing AMI Lease Acquisition Proposals”, and together with the Identified AMI Lease Proposals, the “AMI Lease Acquisition Proposals”), with each such Post-Signing AMI Lease Proposal containing a deadline date for Seller to make an election to participate in the proposed acquisition set forth therein (each, a “Post-Signing AMI Lease Deadline Date”, and together with each Identified AMI Lease Deadline Date, an “AMI Lease Deadline Date”). At least two business days prior to the AMI Lease Deadline Date, Buyer shall notify Seller of whether Buyer would like Seller to consent to participate in the applicable AMI Lease Acquisition Proposal; provided, that (A) Seller shall be obligated to make an election to participate if requested by Buyer and (B) to the extent the AMI Lease Deadline Date for an AMI Lease Acquisition Proposal occurs three days or more following Closing and if Buyer does not inform Seller of whether Buyer would like Seller to participate in such AMI Lease Acquisition Proposal, then upon Closing, Buyer shall acquire all of Seller’s right to make such an election. Upon an election by Seller to participate in an AMI Lease Acquisition Proposal which will Buyer caused Seller to make, the applicable new lease shall be binding upon considered a Lease and included among the Assets hereunder. If Buyer or a lien upon informs Seller that it desires for Seller to elect to not participate in an AMI Lease Acquisition Proposal, Seller may make such Real Property, after election for its own account and the new lease associated with such proposal shall be excluded from the Assets at Closing.
(c4) Notwithstanding anything herein to the contrary, Buyer herewith grants its consent to Seller shall notify Buyer promptly of Seller's receipt of any notice from any party alleging that Seller is to elect to participate in default of its obligations under any of the Leases or any Permit or agreement affecting the Real PropertyBiscayne, or any portion or portions thereof.Charger, and Stingray xxxxx identified on Exhibit F.
(d5) 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 delayPrior to Closing, Seller shall not enter into update any new leases for any portion Exhibits that are affected by this Section 9.1(a) concurrently with the receipt by Seller of the Real Property. Any new lease Xxxxx Proposals and the AMI Lease Acquisition Proposals and 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 furnish 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 otherupdated Exhibits at such time.
(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.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Magnum Hunter Resources Corp)
Operations Prior to Closing. (a) Seller agrees Except as consented to operate the Property between in writing by Buyer or provided for in this Agreement, from the Execution Date and to the Closing Date in the same general manner as Date, Seller has operated the Property during the immediately preceding six will:
(61) month period, paying pay or cause to be paid its proportionate share of all costs and expenses as they come dueincurred in connection with operation of the Assets and Seller will notify Buyer of ongoing activities and major capital expenditures in excess of $100,000 per activity (net to Seller’s interest), exclusive of the AFEs, conducted on the Assets and in any event prior to Closing, shall consult with Buyer regarding all such matters and maintaining all insurance coverage currently in force.operations involving such expenditures;
(b2) give prompt written notice to Buyer of any written notice of asserted default or violation received or given by Seller shall comply under any Leases, any Material Agreements, or applicable Laws;
(3) cooperate reasonably with all Buyer’s due diligence investigation 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.Assets;
(c4) 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 operate (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 cause the operators thereof to operate) and maintain the Assets in arrears.the usual, regular and ordinary manner consistent with past practice, and use its commercially reasonable efforts to preserve its present business operations relating to the Assets;
(h5) Seller shall notify Buyer of any tax assessment disputes (pending or threatened) prior election Seller is required to Closingmake under any Applicable Contract, specifying the nature and time period associated with such election, and from and after make its election in accordance with Buyer’s written instructions but in no event shall Seller be required to make such election until the Due Diligence Expiration Datedue date for such election; provided, Seller not agree to any changes however, that in the real estate tax assessmentevent that Buyer delivers such written instructions to Seller directing that Seller elect to participate in such operations and the Closing does not occur, nor settleBuyer shall have the obligation to purchase that limited portion of the Assets directly affected by such operations (i.e., withdraw or otherwise compromise any pending claims with respect to tax assessments relating the relevant wellbores of such Xxxxx and, to the current or any subsequent yearextent attributable thereto, 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 contractual and leasehold rights to produce Hydrocarbons from such Xxxxx) 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 a purchase price equal to the Closing shall be the sole property cost of such operations that has been paid by Seller, and in such event Seller shall assign such Xxxxx and such other limited interests in applicable portions of the Assets to Buyer using the form attached as Exhibit C (as modified to reflect the interests to be assigned) and Buyer shall bear all refunds relating to any year subsequent cost and risk of such portion of the Assets attributable to the year in which Closing occurs shall be period after 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 AgreementEffective Time; and
(iv6) Vacancy notify Buyer, in a timely manner, of any demised Property Lease expirations or continuous drilling or operations obligations that would result in any termination or expiration of any interest in the Assets on or before sixty (60) days after the Closing Date and, if requested by a tenantBuyer, other than in accordance provide reasonable assistance with a scheduled lease terminationrespect to efforts to extend any such Leases or request the operator of the Assets to undertake operations requested by Buyer, at Buyer’s sole expense, intended to satisfy any continuous drilling or operations requirement.
Appears in 1 contract
Operations Prior to Closing. Prior to Closing:
(a) Seller agrees to operate Contributor shall operate, manage and maintain the Property between the Execution Date and the Closing Date in the same general manner as Seller has operated ordinary course of business and in accordance with its past practice, subject to this Agreement. Without expense to Acquirer, Contributor shall make all repairs and replacements (structural and non-structural, ordinary and extraordinary) so that the Property during the immediately preceding six (6) month periodis maintained in its present condition, paying all costs reasonable wear and expenses as they come due, and in any event prior to Closing, and maintaining all insurance coverage currently in forcetear excepted.
(b) Seller Upon reasonable notice, Acquirer, its accountants, architects, attorneys, engineers, contractors and other representatives shall be afforded access to: (i) the Property to inspect, measure, appraise, test and make surveys of the Property, including, but not limited to, all activities necessary to satisfy the contingencies set forth in this Section 8 and elsewhere in this Agreement; and (ii) all books, records and files relating to the Property. Acquirer shall have the right, at Acquirer’s expense, to make copies of all such books and records, including, without limitation, all books and records relating to increases in real estate taxes, building and operations maintenance costs; provided, however, that Acquirer shall return all copies of such books and records if Closing does not occur under this Agreement as specified in Section 7.6 hereof. Acquirer shall not interfere unreasonably with the operation of the Property and shall restore any area on the Property disturbed in the course of Acquirer’s testing to the conditions existing prior to any tests conducted by Acquirer.
(c) Contributor 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 Contributor 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 Closingbound.
(cd) Seller Contributor shall promptly notify Buyer promptly Acquirer of Seller's Contributor’s receipt of any notice from any party person alleging that Seller Contributor is in default of its obligations under any of the Leases or any Permit permit or agreement affecting the Real Property, or any portion or portions thereof.
(de) No contract for or on behalf of or affecting the Real Property shall be negotiated or entered into by Contributor which cannot be terminated by Seller upon the Contributor prior to Closing without the payment of a specific charge, cost, penalty or premium for such terminationpremium.
(ef) Except with the prior written consent of BuyerAcquirer, which Buyer agrees it shall not unreasonably withholdand as specified in Section 18.2 below, condition or delay, Seller Contributor shall not enter into any new leases for any portion of the Real Property. Any new lease shall be on Buyer's customary a form (which may vary of lease supplied to reflect customary negotiated revisions thereto)Contributor by Acquirer. In the event Acquirer approves any new leases, or Contributor shall deliver to Acquirer an Estoppel Certificate from the tenant(s) and guarantor(s) thereunder as required hereunder for the Leases and otherwise shall comply, as to such other form which is reasonably acceptable new leases and new guarantees, with the terms of this Agreement relating to Buyerthe Leases and the Guarantees. Further, except with the prior written consent of BuyerAcquirer, which Buyer agrees it shall not unreasonably withholdand as specified in Section 18.2 below, condition or delay, or as set forth above, Seller Contributor shall not amend, extend (except where required under the terms of the Lease in question)extend, terminate (except by reason of a tenant's default)terminate, 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 or accelerate the rent due to 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 tenant default under any Leaseof the Leases.
(g) Seller From the Effective Date until Closing, Contributor shall timely xxxx take all tenants for all rent billable under Leasesaction on its part to maintain the Contract Rights, Records and Plans, Warranties, and use commercially reasonable efforts Licenses and Permits in full force and effect as applicable and shall not terminate, modify or waive any provision thereof. Contributor shall not enter into any new contracts or agreements relating to collect any rent in arrearsthe Property without Acquirer’s prior written consent.
(h) Seller shall notify Buyer Any material defect in the structural condition or building systems of any tax assessment disputes (pending or threatened) prior to Closing, and from and which Contributor gains knowledge 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, Effective Date shall be apportioned between the parties as of the date real estate taxes are apportioned under this Agreement. All refunds relating disclosed 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 otherAcquirer promptly.
(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.
Appears in 1 contract
