Provisions With Respect to Closing. 8.1 At Closing, Seller shall deliver to Holdings the following documents, duly executed and acknowledged: 8.1.1 a limited warranty deed to the Farm Parcel in a form reasonably acceptable to Seller and Holdings, duly executed by Seller and acknowledged and in proper form for recording with state transfer taxes paid by Holdings (the “Deed”); 8.1.2 a bxxx of sale in a form reasonably acceptable to Seller and Holdings, duly executed by Seller, transferring to Holdings, without warranty or representation, any right, title and interest in the personal property and all crops included within the Farm Parcel; 8.1.3 reasonably appropriate documents, duly executed by Seller, in order to transfer title to any vehicles (including without limitation that truck located at the Farm Parcel) and/or equipment titled in Seller’s name that is otherwise included within the Farm Parcel to Holdings; provided, however, Seller and Holdings acknowledge and agree that, to the extent the parties are unable to consummate the transfer of title to such vehicles with the applicable governing authority as of the Closing Date, the parties will, instead, fully cooperate post-Closing to effectuate such transfer of title. 8.1.4 all keys in Seller’s actual possession to all locks on the Farm Parcel; 8.1.5 such evidence or affidavits as may be reasonably required by Holdings or the Title Company regarding the status of title and the authority of the persons executing the various documents on behalf of Seller in connection with the transactions contemplated hereby, provided such evidence and affidavits, and the terms and conditions thereof, are consistent with the terms and conditions of this Agreement and do not impose a greater liability upon Seller; 8.1.6 all other documents Seller is required to deliver pursuant to the provisions of this Agreement and any additional documents reasonably required in connection with this Agreement, provided such documents, and the terms and conditions thereof, are consistent with the terms and conditions of this Agreement and do not impose a greater liability upon Seller.
Appears in 2 contracts
Samples: Promissory Note Exchange Agreement (Panacea Life Sciences Holdings, Inc.), Promissory Note Exchange Agreement (Exactus, Inc.)
Provisions With Respect to Closing. 8.1 (a) At Closing, Seller shall deliver possession of the Property to Holdings Buyer subject to possession by the following documentsTenants under the Leases, duly and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”):
(i) A Special Warranty Deed (“Deed”), in recordable form, executed and acknowledged:
8.1.1 a limited warranty deed acknowledged by Seller in favor of Buyer with respect to the Farm Parcel Real Property owned by Seller, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (subject only to the Permitted Exceptions) and the Deed Restrictions, in the form attached hereto as Exhibit “O”.
(ii) An updated schedule of the Leases then in effect and an updated schedule of security deposits held by Seller under the Leases, provided, however, that a default by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and HoldingsBuyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and Trademarks, Permits and Licenses (“License Assignment”), in the form of Exhibit “R” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and Trademarks, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “T” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Parking License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking License Agreement
(xi) A duly executed and acknowledged Equipment Area One License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two License Agreement.
(xiii) A duly executed and acknowledged Office Lease.
(xiv) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “X” attached hereto and made a part hereof.;
(xv) An affidavit executed by Seller and acknowledged confirming that Seller is a “U.S. person” and in proper form for recording with state transfer taxes paid by Holdings not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (the “DeedCode”);.
8.1.2 (xvi) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xvii) A xxxx of sale, in the form of Exhibit “Z” attached hereto and made a bxxx part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that title to the Personal Property so transferred by Seller is good and marketable and free and clear of sale all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions.
(xviii) A title affidavit in a form reasonably acceptable to customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and Holdingscustomary affidavits and other instruments, duly executed by organizational documents of Seller, transferring and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to Holdings, without warranty or representation, any right, title and interest in the personal property and all crops included within the Farm Parcel;
8.1.3 reasonably appropriate documents, duly executed by Seller, in order to transfer convey title to any vehicles the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(including without limitation xix) A certificate or restatement indicating that truck located at the Farm Parcel) and/or equipment titled representations and warranties of Seller made in Seller’s name that is otherwise included within the Farm Parcel to Holdings; provided, however, Seller Paragraph 5 of this Agreement are true and Holdings acknowledge and agree that, to the extent the parties are unable to consummate the transfer of title to such vehicles with the applicable governing authority correct in all material respects as of the Closing Date, the parties willor if there have been any changes, instead, fully cooperate post-Closing to effectuate such transfer of titlea description thereof.
8.1.4 (xx) A settlement statement setting forth the Purchase Price and all keys credits and adjustments.
(xxi) In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxii) Release of Property from any Seller mortgage(s).
(b) At Closing, Buyer shall (i) deliver to Seller the balance of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;
(B) Intentionally Omitted;
(C) Intentionally Omitted;
(D) Intentionally Omitted;
(E) Intentionally Omitted;
(F) Intentionally Omitted;
(G) Release of Leasehold Mortgage;
(H) The Office Lease;
(I) The Lease Termination Agreement;
(J) The License Assignment;
(K) The Easement Agreement;
(L) The Overlook Area Parking License Agreement;
(M) The Overlook Area/ Lodge Area Ski License Agreement;
(N) Tubing Area Parking License Agreement (O) Equipment Area One License Agreement (P) Equipment Area Two License Agreement
(Q) The Memorandum of Right of First Refusal;
(R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this Agreement.
(S) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding the date of the Closing. To the extent that the amounts of the items to be adjusted are not reasonably ascertainable as of the date of Closing, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained:
(i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years).
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s actual possession name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility xxxxxxxx to Tenants under Leases shall be adjusted as of the date of Closing.
(d) All real estate transfer taxes that result from the payment of the Purchase Price under this Agreement shall be borne by the parties equally, provided, however, that Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment Tax”), and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all locks on recording fees for the Farm Parcel;
8.1.5 such evidence or affidavits as may recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be reasonably obtained by the Seller in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Holdings or Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer and Seller shall share equally the cost of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searches, the Title Company regarding the status of title Commitment and the authority Title Policy and any title endorsement. Each party shall bear the expense of the persons executing the various documents on behalf of Seller its own counsel.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transactions contemplated herebytransfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided such evidence and affidavitsexcept that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the terms expansion of any leased premises under any Lease listed on Exhibit __ hereto, following the date of Closing, and conditions thereof(ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, are consistent or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the terms Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and conditions of this Agreement other commissions and do not impose a greater liability upon Seller;
8.1.6 all other documents fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required to deliver pursuant to under any Lease, except (A) any Lease made with Buyer’s approval after the provisions of this Agreement Execution Date, and (B) any additional documents reasonably required work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Agreement, provided such documents, and the terms and conditions thereof, are consistent with the terms and conditions of this Agreement and do not impose a greater liability upon SellerParagraph 13 shall survive Closing hereunder.
Appears in 1 contract
Provisions With Respect to Closing. 8.1 (a) At Closing, Seller shall deliver possession of the Property to Holdings Buyer subject to possession by the following documentsTenants under the Leases, duly and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”):
(i) A Special Warranty Deed (“Deed”), in recordable form, executed and acknowledged:
8.1.1 a limited warranty deed acknowledged by Seller in favor of Buyer with respect to the Farm Parcel Real Property owned by Seller, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (subject only to the Permitted Exceptions) and the Deed Restrictions, in the form attached hereto as Exhibit “O”.
(ii) An updated schedule of the Leases then in effect and an updated schedule of security deposits held by Seller under the Leases, provided, however, that a default by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and HoldingsBuyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and Trademarks, Permits and Licenses (“License Assignment”), in the form of Exhibit “R” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and Trademarks, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “T” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Parking License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking License Agreement.
(xi) A duly executed and acknowledged Equipment Area One License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two License Agreement.
(xiii) A duly executed and acknowledged Office Lease.
(xiv) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “X” attached hereto and made a part hereof.;
(xv) An affidavit executed by Seller and acknowledged confirming that Seller is a “U.S. person” and in proper form for recording with state transfer taxes paid by Holdings not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (the “DeedCode”);.
8.1.2 (xvi) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xvii) A xxxx of sale, in the form of Exhibit “Z” attached hereto and made a bxxx part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that title to the Personal Property so transferred by Seller is good and marketable and free and clear of sale all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions.
(xviii) A title affidavit in a form reasonably acceptable to customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and Holdingscustomary affidavits and other instruments, duly executed by organizational documents of Seller, transferring and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to Holdings, without warranty or representation, any right, title and interest in the personal property and all crops included within the Farm Parcel;
8.1.3 reasonably appropriate documents, duly executed by Seller, in order to transfer convey title to any vehicles the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(including without limitation xix) A certificate or restatement indicating that truck located at the Farm Parcel) and/or equipment titled representations and warranties of Seller made in Seller’s name that is otherwise included within the Farm Parcel to Holdings; provided, however, Seller Paragraph 5 of this Agreement are true and Holdings acknowledge and agree that, to the extent the parties are unable to consummate the transfer of title to such vehicles with the applicable governing authority correct in all material respects as of the Closing Date, the parties willor if there have been any changes, instead, fully cooperate post-Closing to effectuate such transfer of titlea description thereof.
8.1.4 (xx) A settlement statement setting forth the Purchase Price and all keys credits and adjustments.
(xxi) In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxii) Release of Property from any Seller mortgage(s).
(b) At Closing, Buyer shall (i) deliver to Seller the balance of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;
(B) Intentionally Omitted;
(C) Intentionally Omitted;
(D) Intentionally Omitted;
(E) Intentionally Omitted;
(F) Intentionally Omitted;
(G) Release of Leasehold Mortgage;
(H) The Office Lease;
(I) The Lease Termination Agreement;
(J) The License Assignment;
(K) The Easement Agreement;
(L) The Overlook Area Parking License Agreement;
(M) The Overlook Area/ Lodge Area Ski License Agreement;
(N) Tubing Area Parking License Agreement (O) Equipment Area One License Agreement (P) Equipment Area Two License Agreement (Q) The Memorandum of Right of First Refusal;
(R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this Agreement.
(S) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding the date of the Closing. To the extent that the amounts of the items to be adjusted are not reasonably ascertainable as of the date of Closing, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained:
(i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years).
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s actual possession name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility xxxxxxxx to Tenants under Leases shall be adjusted as of the date of Closing.
(d) All real estate transfer taxes that result from the payment of the Purchase Price under this Agreement shall be borne by the parties equally, provided, however, that Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment .Tax”), and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all locks on recording fees for the Farm Parcel;
8.1.5 such evidence or affidavits as may recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be reasonably obtained by .the Seller in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Holdings or Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer and Seller shall share equally the cost of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searches, the Title Company regarding the status of title Commitment and the authority Title Policy and any title endorsement. Each party shall bear the expense of the persons executing the various documents on behalf of Seller its own counsel.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transactions contemplated herebytransfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided such evidence and affidavitsexcept that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the terms expansion of any leased premises under any Lease listed on Exhibit _____ hereto, following the date of Closing, and conditions thereof(ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, are consistent or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the terms Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and conditions of this Agreement other commissions and do not impose a greater liability upon Seller;
8.1.6 all other documents fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required to deliver pursuant to under any Lease, except (A) any Lease made with Buyer’s approval after the provisions of this Agreement Execution Date, and (B) any additional documents reasonably required work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Agreement, provided such documents, and the terms and conditions thereof, are consistent with the terms and conditions of this Agreement and do not impose a greater liability upon SellerParagraph 13 shall survive Closing hereunder.
Appears in 1 contract
Samples: Agreement of Sale (Peak Resorts Inc)
Provisions With Respect to Closing. 8.1 (a) At Closing, Seller shall deliver possession of the Property to Holdings Buyer subject to possession by the following documentsTenants under the Leases, duly and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”):
(i) A Special Warranty Deed (“Deed”), in recordable form, executed and acknowledged:
8.1.1 a limited warranty deed acknowledged by Seller in favor of Buyer with respect to the Farm Parcel Real Property owned by Seller, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (subject only to the Permitted Exceptions) and the Deed Restrictions, in the form attached hereto as Exhibit “O”.
(ii) An updated schedule of the Leases then in effect and an updated schedule of security deposits held by Seller under the Leases, provided, however, that a default by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and HoldingsBuyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and Trademarks, Permits and Licenses (“License Assignment”), in the form of Exhibit “R” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and Trademarks, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “T” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Parking License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking License Agreement.
(xi) A duly executed and acknowledged Equipment Area One License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two License Agreement.
(xiii) A duly executed and acknowledged Office Lease.
(xiv) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “X” attached hereto and made a part hereof.;
(xv) An affidavit executed by Seller and acknowledged confirming that Seller is a “U.S. person” and in proper form for recording with state transfer taxes paid by Holdings not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (the “DeedCode”);.
8.1.2 (xvi) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xvii) A xxxx of sale, in the form of Exhibit “Z” attached hereto and made a bxxx part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that title to the Personal Property so transferred by Seller is good and marketable and free and clear of sale all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions.
(xviii) A title affidavit in a form reasonably acceptable to customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and Holdingscustomary affidavits and other instruments, duly executed by organizational documents of Seller, transferring and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to Holdings, without warranty or representation, any right, title and interest in the personal property and all crops included within the Farm Parcel;
8.1.3 reasonably appropriate documents, duly executed by Seller, in order to transfer convey title to any vehicles the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(including without limitation xix) A certificate or restatement indicating that truck located at the Farm Parcel) and/or equipment titled representations and warranties of Seller made in Seller’s name that is otherwise included within the Farm Parcel to Holdings; provided, however, Seller Paragraph 5 of this Agreement are true and Holdings acknowledge and agree that, to the extent the parties are unable to consummate the transfer of title to such vehicles with the applicable governing authority correct in all material respects as of the Closing Date, the parties willor if there have been any changes, instead, fully cooperate post-Closing to effectuate such transfer of titlea description thereof.
8.1.4 (xx) A settlement statement setting forth the Purchase Price and all keys in Seller’s actual possession credits and adjustments.
(xxi) In the event Buyer shall be entitled to all locks on receive any proceeds of insurance, or the Farm Parcel;
8.1.5 proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such evidence award or affidavits proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as may shall be reasonably required by Holdings or for the Title Company regarding the status transfer to Buyer of all right, title and the authority of the persons executing the various documents on behalf interest, if any, of Seller in connection with the transactions contemplated herebyand to any such award, provided such evidence and affidavits, and the terms and conditions thereof, are consistent with the terms and conditions of this Agreement and do not impose a greater liability upon Seller;
8.1.6 all other documents Seller is required to deliver pursuant proceeds or claim to the provisions full extent of this Agreement and Buyer’s entitlement thereto.
(xxii) Release of Property from any additional documents reasonably required in connection with this Agreement, provided such documents, and the terms and conditions thereof, are consistent with the terms and conditions of this Agreement and do not impose a greater liability upon SellerSeller mortgage(s).
Appears in 1 contract
Samples: Agreement of Sale (Peak Resorts Inc)
Provisions With Respect to Closing. 8.1 (a) At Closing, Seller shall deliver possession of the Property to Holdings Buyer in the following documentssame condition as exists on the Execution Date, subject to reasonable wear and tear, and Seller shall deliver, or cause to be delivered, to Buyer the following:
(i) A Special Warranty Deed or Deeds (collectively, "the Deed"), in the form attached hereto as EXHIBIT "J", duly executed and acknowledged:acknowledged by Seller.
8.1.1 a limited warranty deed (ii) Rent rolls in the form attached hereto as EXHIBITS "D-1" and "D-2" (which shall be delivered by Seller to Buyer for review within three (3) business days prior to the Farm Parcel Closing Date, and shall be certified by Seller to Buyer on and as of the Closing Date), subject to updating to reflect then-current conditions, together with a list setting forth the names of any Tenant then in a arrears in the payment of rent under such Tenant's Lease and the amount of such arrearage, such rent roll and list to certified by Seller to be true and correct as of the Closing Date.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof), together with all correspondence with Tenants, and other materials in the Tenant lease files that are in Seller's possession or within its reasonable control. All Security Deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer the keys to all locks on the Real Property and original counterparts of the Contracts, Licenses and Permits and Books and Records, or certified copies of same if Seller, using its good faith reasonable efforts, is unable in any instance to deliver originals.
(iv) A letter to the Tenants (in form reasonably acceptable to Buyer) signed by Seller and HoldingsBuyer and stating that the Property, duly the Leases and the Security Deposits have been conveyed to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer's designee.
(v) A letter to the vendors under the Contracts (in form reasonably acceptable to Buyer) executed by Seller and acknowledged Buyer stating that future invoices are to be sent to Buyer.
(vi) An Assignment and in proper form for recording with state transfer taxes paid by Holdings Assumption of Leases (the “Deed”);
8.1.2 a bxxx of sale in a form reasonably acceptable to Seller and Holdings, duly executed by Seller, transferring to Holdings, without warranty or representation, any right, title and interest in the personal property and all crops included within the Farm Parcel;
8.1.3 reasonably appropriate documents, "Lease Assignment") duly executed by Seller, in order the form of EXHIBIT "K", attached hereto and made a part hereof.
(vii) An Assignment and Assumption (the "Contract Assignment") duly executed by Seller, in the form of EXHIBIT "L-1", attached hereto and made a part hereof, sufficient to transfer title and convey the landlord's interest in, to any vehicles and under the Contracts to Buyer, and in certain other property to be conveyed pursuant to this Agreement.
(including without limitation viii) An affidavit duly executed by Seller and confirming that truck located at the Farm Parcel) and/or equipment titled in Seller’s name that Seller is otherwise included a "U.S. person" and not a "foreign person" within the Farm Parcel meaning of Section 1445 of the Code, in such form as is required under the Code.
(ix) A duly executed and acknowledged Assignment and Assumption of the REA (the "REA Assignment"), including the Merchandising Fund and Marketing Fund, in the form of EXHIBIT "L-2", attached hereto and made a part hereof, sufficient to Holdings; providedtransfer and convey Seller's interest in, howeverto and under the REA and such funds.
(x) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xi) Seller shall promptly request a tenant estoppel certificate (each, a "Tenant Estoppel" and collectively, the "Tenant Estoppels") in substantially the form of EXHIBIT "M-1", attached hereto and made a part hereof (or in the form the Tenant is required to provide pursuant to the terms of its Lease, so long as the Tenant actually provides such form), from each Tenant under the Leases, with the blanks filled in consistent with the terms of the Leases. In addition, Seller shall promptly request estoppel certificates (each, an "REA Estoppel" and Holdings acknowledge collectively, the "REA Estoppels", which may be in combined form for both the REA and agree thatthe Springpenn Agreement, or may be by separate estoppel forms for each thereof) in substantially the forms of EXHIBITS "M-2" and EXHIBIT "M-3", attached hereto and made a part hereof (or in the form the party to the extent REA is required to provide pursuant to the parties are unable to consummate terms of the transfer of title to such vehicles REA or Springpenn Agreement), from each party under the REA and under the Springpenn Agreement, with the applicable governing authority blanks filled in consistent with the terms of the REA and the Springpenn Agreement. The Tenant Estoppels and the REA Estoppels are sometimes collectively referred to as the "Estoppels". Notwithstanding anything to the contrary contained in this Agreement, Buyer's obligation to complete Closing is contingent upon (A) receipt by Buyer, at or before Closing, of Estoppels meeting the requirements of this subparagraph 13(a)(xi) executed by each of the Required Estoppel Parties (as hereinafter defined), (B) all Estoppels obtained from the Required Estoppel Parties being dated no earlier than forty-five (45) days prior to the Closing Date, and (C) no Estoppel containing any material adverse deviation from any of the parties willstatements contained in EXHIBIT "M-1" or EXHIBIT "M-2" or EXHIBIT "M-3", insteadas applicable, fully cooperate post-Closing to effectuate such transfer of title.
8.1.4 all keys the representations and warranties contained in Seller’s actual possession to all locks on this Agreement and/or the Farm Parcel;
8.1.5 such evidence or affidavits as may be reasonably required by Holdings Leases or the Title Company regarding REA or the status Springpenn Agreement, as applicable, failing any of title and which Buyer shall have the authority of right to terminate this Agreement by written notice to Seller, in which event the persons executing Deposit shall be returned to Buyer by the various documents on behalf of Seller in connection with the transactions contemplated hereby, provided such evidence and affidavitsEscrow Agent, and the terms and conditions thereofneither Seller nor Buyer shall have any further rights, are consistent with the terms and conditions claims or obligations against one another arising out of this Agreement and do not impose a greater liability upon Seller;
8.1.6 all other documents Seller is required to deliver pursuant to the provisions of this Agreement and any additional documents reasonably required in connection with this Agreement, provided such documents, excepting the Continuing Obligations. "Required Estoppel Parties" means (i) Tenants occupying an aggregate of at least seventy percent (70%) of the rentable space in the Improvements located on The Shopping Center Land; and (ii) each of the parties to the REA and the terms Springpenn Agreement other than Seller. Seller's obligation under this Paragraph 13(a)(xi) to request Estoppels shall be limited to the making of two (2) requests of a Tenant Estoppel from each Tenant and conditions the making of two (2) requests of an REA Estoppel from each REA party and each party under the Springpenn Agreement. If a party requested to execute an Estoppel fails to execute and deliver the Estoppel within a reasonable period after one (1) such request by Seller, Seller shall promptly inform Buyer and Buyer shall have the right to contact the corporate office of the Tenant or REA party or party under the Springpenn Agreement that has not delivered such estoppel. Seller shall deliver to Buyer original signed Estoppels promptly after its receipt thereof, are consistent . If Seller has been unable to obtain all of the Estoppels necessary to comply with the terms requirements of subparagraph 13(a)(xi) as of the date on which Closing is otherwise required to occur under this Agreement, Buyer shall have the right, by written notice to Seller, at Buyer's sole option, to (i) proceed to Closing and waive the condition set forth in subparagraph 13(a)(xi) (to the extent unsatisfied), or (ii) postpone Closing until the date that is the tenth (10th) business day following Seller's delivery to Buyer of all of the Estoppels necessary to comply with the requirements of subparagraph 13(a)(xi), but not later than November 16, 2005; provided, that by extending the date of Closing, Buyer shall have waived irrevocably all conditions of this Agreement to Closing other than the conditions set forth in subparagraphs 11(a) and do not impose a greater liability upon Seller.13(a)
Appears in 1 contract
Samples: Agreement of Sale (Pennsylvania Real Estate Investment Trust)
