SELLER’S OBLIGATIONS PRIOR TO CLOSING. Without in any way limiting any other obligations of Seller under this Agreement, during the period from the date of this Agreement to the Closing: (a) Seller (x) shall conduct the Business only in the ordinary and normal course and shall use commercially reasonable efforts to preserve the Business and the Purchased Assets and the goodwill of suppliers, customers and others having business relations with the Business consistent with past practice and (y) shall not, without the prior written consent of Buyer, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, would constitute a breach of any representation and warranty of Seller contained in this Agreement (provided that the failure of Seller to comply with this clause (y) shall in no event cause the failure of the condition set forth in Section 6.01(b)). Without limiting the foregoing Seller will not, without the prior written consent of Buyer (not to be unreasonably withheld, conditioned or delayed): (i) increase any compensation payable to any Employees or make any other change in the terms of employment of any of the Employees not consistent with past practices; (ii) except for cause, dismiss or transfer any key senior management Employee and Seller shall promptly notify Buyer of any such dismissal or transfer; (iii) create any further Encumbrances on any of the Purchased Assets; (iv) amend or agree to amend in a manner adverse to the Business any of the Assigned Contracts; (v) enter into or amend any other Contracts for the Business other than ordinary course purchases from suppliers and sales to customers of the Business; (vi) amend or agree to amend any of the Assigned Permits; or (vii) assign, transfer, license, or abandon any Assigned Intellectual Property or Assigned Technology other than in the ordinary course of business. (b) Seller shall use all commercially reasonable efforts to obtain, at or before the time of the Closing, at its expense, all of the consents to assign the Assigned Contracts and Assigned Permits provided that Seller shall not be required to pay or commit to pay any amount to any Person to obtain any such consents; (c) Seller shall pay and discharge its liabilities relating to the Business and the Purchased Assets as they come due in the ordinary course in accordance and consistent with its previous practice, except those contested in good faith by Seller; (d) until the earlier of the completion of the Closing or any termination of this Agreement, Seller will deal exclusively with Buyer with respect to the sale of the Business and the Purchased Assets, and Seller and its directors, officers, employees, representatives and agents shall not, directly or indirectly, solicit, encourage, or initiate any offer or proposal from, or engage in any discussions or negotiations or enter into any agreement, commitment or understanding or otherwise act jointly or in concert with, or provide any information to, any Person or entity, other than Buyer and its affiliates, employees, representatives and agents, concerning any transaction involving the Business or the Purchased Assets; (e) Seller shall use all commercially reasonable efforts to obtain by the time of the Closing, at its expense, discharges of all Encumbrances against the Purchased Assets that are not Permitted Encumbrances; and (f) between the date of this Agreement and the Closing, Seller shall use reasonable efforts to consult in good faith on a regular and frequent basis with the representatives of Buyer to report material operational developments and the general status of ongoing operations pursuant to procedures reasonably requested by Buyer or such representatives that do not unduly interfere with Seller's operation of the Business.
Appears in 1 contract
SELLER’S OBLIGATIONS PRIOR TO CLOSING. Without in any way limiting any other As a material inducement to Englewood entering into this Agreement and as a condition to Englewood’s obligations of Seller under this Agreement, during the period from hereunder:
10.1 Between the date of this Agreement to the hereof and Closing, Seller shall:
(a) Seller (x) shall conduct the Business only 10.1.1 inform Englewood promptly in the ordinary and normal course and shall use commercially reasonable efforts to preserve the Business and the Purchased Assets and the goodwill of suppliers, customers and others having business relations with the Business consistent with past practice and (y) shall not, without the prior written consent of Buyer, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, would constitute a breach writing upon learning of any representation matter which would cause any of the representations and warranty warranties of Seller contained in this Agreement (provided that to be untrue, incorrect or incomplete;
10.1.2 not enter into any leases or grant any other rights in the failure of Seller to comply with this clause (y) shall in no event cause the failure of the condition set forth in Section 6.01(b)). Without limiting the foregoing Seller will not, Property without the prior first obtaining Englewood’s written consent of Buyer (thereto.
10.1.3 not to be unreasonably withheld, conditioned or delayed):engage in any vertical development on the Property.
(i) increase any compensation payable to any Employees or make any other change in 10.2 Seller shall not market the terms of employment of any of the Employees not consistent with past practices;
(ii) except Property for cause, dismiss sale or transfer any key senior management Employee and Seller shall promptly notify Buyer of any such dismissal or transfer;
(iii) create any further Encumbrances on any of the Purchased Assets;
(iv) amend convey or agree to amend transfer or convey any interest in a manner adverse the Property, other than to Englewood (or its assign), and at Closing, title to the Business Property shall be owned by Seller in fee simple free and clear of all mortgages, liens, encumbrances, easements and other matters except for any items shown on the Title Commitment.
10.3 Seller will insure that the Property conforms to the following requirements prior to Closing:
10.3.1 The Property shall have a sign, at Seller’s expense, that states “Future Englewood Utilities Pump Station Expansion.”
10.3.2 The closing documents/disclosures/lease documents between the owner of the Assigned Contracts;residential property adjacent to the pump station shall include information that informs nearby residents about construction in the area, truck traffic (both during construction and periodically during normal operations).
(v) enter into or amend any other Contracts 10.3.3 A general access easement for the Business other than ordinary course purchases from suppliers and sales to customers of pump house will be aligned with the Business;
(vi) amend or agree to amend any of concrete drive isle within the Assigned Permits; or
(vii) assign, transfer, license, or abandon any Assigned Intellectual Property or Assigned Technology other than in the ordinary course of businessapartment development by separate instrument.
(b) 10.3.4 Prior to vertical construction on Planning Area F, Seller shall use all commercially reasonable efforts to obtain, at or before the time of the Closingwill install, at its expensecost, all a temporary fence for security around the Property to be replaced by a fence installed by Englewood when the pump station is expanded after Closing.
10.3.5 A 15’ access and maintenance easement adjacent to the existing easement containing a piped portion of City Ditch will be provided east of the consents apartment garages, separated by a barrier from the apartments. Such easement will be provided by separate instrument.
10.3.6 The grade around the future pump station will be raised to assign be level with the Assigned Contracts and Assigned Permits provided that Seller shall not be required to pay or commit to pay any amount to any Person to obtain any such consents;
(c) Seller shall pay and discharge its liabilities relating rest of Parcel F with a 2% slope to the Business and west.
10.3.7 Englewood shall have the Purchased Assets as they come due in the ordinary course in accordance and consistent with its previous practice, except those contested in good faith by Seller;
(d) until the earlier right to use an area immediately west of the completion of expanded pump location for temporary construction access and staging during the Closing or any termination of this Agreement, Seller will deal exclusively with Buyer with respect to the sale of the Business and the Purchased Assets, and Seller and its directors, officers, employees, representatives and agents shall not, directly or indirectly, solicit, encourage, or initiate any offer or proposal from, or engage in any discussions or negotiations or enter into any agreement, commitment or understanding or otherwise act jointly or in concert with, or provide any information to, any Person or entity, other than Buyer and its affiliates, employees, representatives and agents, concerning any transaction involving the Business or the Purchased Assets;
(e) Seller shall use all commercially reasonable efforts to obtain by the time of the Closing, at its expense, discharges of all Encumbrances against the Purchased Assets that are not Permitted Encumbrances; and
(f) between the date of this Agreement and the Closing, Seller shall use reasonable efforts to consult in good faith on a regular and frequent basis with the representatives of Buyer to report material operational developments and the general status of ongoing operations pursuant to procedures reasonably requested by Buyer or such representatives that do not unduly interfere with Seller's operation of the Businesspump station build-out.
Appears in 1 contract
Samples: Purchase and Sale Agreement
SELLER’S OBLIGATIONS PRIOR TO CLOSING. Without in any way limiting any other obligations Seller agrees that, until the Time of Closing, Seller under this Agreement, during the period from the date of this Agreement to the Closingshall:
(a) Seller maintain in full force and effect the insurance policies relating to the Premises in effect on the date hereof and comply with any requirements, arising prior to the Time of Closing, under such insurance policies;
(xb) shall conduct not grant any encumbrance on the Business only in Premises nor enter into any management, service or maintenance contract which might become the ordinary and normal course and shall use commercially reasonable efforts to preserve obligation of Buyer after the Business and the Purchased Assets and the goodwill of suppliers, customers and others having business relations with the Business consistent with past practice and (y) shall notClosing, without the prior written consent of Buyer, ;
(c) not enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, would constitute a breach new lease of any representation and warranty of Seller contained in this Agreement (provided that the failure of Seller to comply with this clause (y) shall in no event cause the failure portion of the condition set forth in Section 6.01(b)). Without limiting the foregoing Seller will not, Premises without the prior written consent of Buyer (not to be unreasonably withheld, conditioned or delayed):
(i) increase any compensation payable to any Employees or make any other change in the terms except leases of employment of any of the Employees not consistent with past practices;
(ii) except for cause, dismiss or transfer any key senior management Employee and Seller shall promptly notify Buyer of any such dismissal or transfer;
(iii) create any further Encumbrances on any of the Purchased Assets;
(iv) amend or agree to amend in a manner adverse to the Business any of the Assigned Contracts;
(v) enter into or amend any other Contracts for the Business other than ordinary course purchases from suppliers and sales to customers of the Business;
(vi) amend or agree to amend any of the Assigned Permits; or
(vii) assign, transfer, license, or abandon any Assigned Intellectual Property or Assigned Technology other than residential apartment units in the ordinary course of business.
(b) business using the standard form lease currently in use by Seller shall use all commercially reasonable efforts and at rates at least equal to obtain, at or before the time of the Closing, at its expense, all of the consents to assign the Assigned Contracts those currently charged by Seller for similarly sized and Assigned Permits provided that Seller shall not be required to pay or commit to pay any amount to any Person to obtain any such consents;
(c) Seller shall pay and discharge its liabilities relating to the Business and the Purchased Assets as they come due in the ordinary course in accordance and consistent with its previous practice, except those contested in good faith by Sellerlocated units;
(d) until the earlier of the completion of the Closing or any termination of this Agreementallow Buyer, Seller will deal exclusively with Buyer with respect to the sale of the Business and the Purchased Assets, and Seller and its directors, officersagents, employees, representatives contractors, consultants and agents shall notother representatives, directly or indirectlyreasonable access to the Premises in accordance with the provisions of Paragraph 4, solicit, encourage, or initiate any offer or proposal from, or engage in any discussions or negotiations or enter into any agreement, commitment or understanding or otherwise act jointly or in concert with, or provide any information to, any Person or entity, other than Buyer and its affiliates, employees, representatives and agents, concerning any transaction involving the Business or the Purchased Assetsabove;
(e) make available to Buyer for Buyer's review at the Premises all Existing Leases, Existing Contracts, and, to the extent in Seller's possession, plans and drawings of the Land and Buildings;
(f) prior to or at the Time of Closing, give notice to terminate all Existing Contracts which Buyer indicates that Buyer wishes to have terminated by notice given to Seller shall use all commercially reasonable efforts within 30 days prior to obtain by the time of the Closing, at its expense, discharges such termination to be effective on or before the Time of all Encumbrances against Closing or as soon thereafter as may be permitted under the Purchased Assets that Existing Contracts which are not Permitted Encumbrancesto be terminated; and
(fg) between Seller shall (i) perform any and all obligations of Seller under the date Existing Leases, (ii) upon receipt of this Agreement and proper notice from (A) any board of fire underwriters or other body exercising similar functions, or (B) any mortgagee having a security interest in the Premises, comply with any requirements, arising prior to the Time of Closing, Seller shall use reasonable efforts to consult stated in good faith such notice, and (iii) carry on a regular and frequent basis with the representatives of Buyer to report material operational developments and the general status of ongoing operations pursuant to procedures reasonably requested by Buyer or such representatives that do not unduly interfere with Seller's operation of the BusinessPremises in the ordinary course.
Appears in 1 contract
Samples: Purchase and Sale Agreement (New England Realty Associates Limited Partnership)
SELLER’S OBLIGATIONS PRIOR TO CLOSING. Without in any way limiting any other obligations of Seller under this Agreement, during the period from the date of this Agreement to the Closing:
(a) Seller (x) shall conduct the Business only in the ordinary and normal course and shall use commercially reasonable efforts to preserve the Business and the Purchased Assets and the goodwill of suppliers, customers and others having business relations with the Business consistent with past practice and (y) shall not, without the prior written consent of Buyer, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, would constitute a breach of any representation and warranty of Seller contained in this Agreement (provided that the failure of Seller to comply with this clause (y) shall in no event cause the failure of the condition set forth in Section 6.01(b)). Without limiting the foregoing Seller will not, without the prior written consent of Buyer (not to be unreasonably withheld, conditioned or delayed):
(i) increase any compensation payable to any Employees or make any other change in the terms of employment of any of the Employees not consistent with past practices;
(ii) except for cause, dismiss or transfer any key senior management Employee and Seller shall promptly notify Buyer of any such dismissal or transfer;
(iii) create any further Encumbrances on any of the Purchased Assets;
(iv) amend or agree to amend in a manner adverse to the Business any of the Assigned Contracts;
(v) enter into or amend any other Contracts for the Business other than ordinary course purchases from suppliers and sales to customers of the Business;
(vi) amend or agree to amend any of the Assigned Permits; or
(vii) assign, transfer, license, or abandon any Assigned Intellectual Property or Assigned Technology other than in the ordinary course of business.
(b) Seller shall use all commercially reasonable efforts to obtain, at or before the time of the Closing, at its expense, all of the consents to assign the Assigned Contracts and Assigned Permits provided that Seller shall not be required to pay or commit to pay any amount to any Person to obtain any such consents;
(c) Seller shall pay and discharge its liabilities relating to the Business and the Purchased Assets as they come due in the ordinary course in accordance and consistent with its previous practice, except those contested in good faith by Seller;
(d) until the earlier of the completion of the Closing or any termination of this Agreement, Seller will deal exclusively with Buyer with respect to the sale of the Business and the Purchased Assets, and Seller and its directors, officers, employees, representatives and agents shall not, directly or indirectly, solicit, encourage, or initiate any offer or proposal from, or engage in any discussions or negotiations or enter into any agreement, commitment or understanding or otherwise act jointly or in concert with, or provide any information to, any Person or entity, other than Buyer and its affiliates, employees, representatives and agents, concerning any transaction involving the Business or the Purchased Assets;
(e) Seller shall use all commercially reasonable efforts to obtain by the time of the Closing, at its expense, discharges of all Encumbrances against the Purchased Assets that are not Permitted Encumbrances; and
(f) between the date of this Agreement and the Closing, Seller shall use reasonable efforts to consult in good faith on a regular and frequent basis with the representatives of Buyer to report material operational developments and the general status of ongoing operations pursuant to procedures reasonably requested by Buyer or such representatives that do not unduly interfere with Seller's ’s operation of the Business.
Appears in 1 contract
SELLER’S OBLIGATIONS PRIOR TO CLOSING. Without a. Sellers agree that, until the Time of Closing, Sellers shall:
i. Operate, maintain, and rent the Premises substantially in accordance with past practice.
ii. Promptly pay all amounts due and owing under the Loan Documents and comply with all other obligations thereunder in all material respects. In addition, Sellers shall not hereafter execute, enter into or consent to any modification, amendment or termination of any Loan Documents, or make any material elections or waivers thereunder, unless Sellers have obtained Buyers’ prior written consent thereto (which may be exercised in Buyers’ sole discretion).
iii. maintain in full force and effect the insurance policies relating to the Premises in effect on the date hereof (provided that Buyers acknowledge that no insurance policies of Sellers are to be transferred to Buyers, no apportionment of the premiums therefor shall be made, and Buyers are responsible for securing their own insurance for the Premises);
iv. not grant any lien or encumbrance on the Premises without the prior consent of Buyers (it being agreed that any lien or encumbrance granted by Seller or its affiliates in violation of this covenant shall constitute a “Must-Cure Item” for all purposes herein);
v. From and after the Effective Date, Sellers (a) shall perform their respective obligations under all of the Leases, (b) shall not enter into any new, or amend in any way limiting material respects, any other obligations of Seller under this Agreementleasing agreements or management agreements, or (c) enter into any new Service Contracts, or amend, modify or terminate any existing Service Contracts, in each case without Buyer’s prior written consent, which consent shall not be unreasonably withheld, except that, during the period from Due Diligence Period, Seller may enter into new Service Contracts (other than Radon Mitigation Contracts), and amend, modify or terminate existing Service Contracts, in each case without Buyers’ prior approval, so long as the date Service Contract at issue is (and continues to be), by its terms, terminable or cancelable as of Closing without penalty, cost or liability, and terminable or cancelable at any time on not more than thirty (30) days’ prior notice, without penalty, cost or liability.
vi. allow Buyers, its agents, employees, contractors, consultants and other representatives, reasonable access to the Premises in accordance with the provisions of this Agreement to Agreement;
vii. After the Closing:
(a) Seller (x) shall conduct the Business only in the ordinary and normal course and shall use commercially reasonable efforts to preserve the Business and the Purchased Assets and the goodwill of suppliers, customers and others having business relations with the Business consistent with past practice and (y) shall not, without the prior written consent of Buyer, enter into any transaction or refrain from doing any action that, if effected before the date Date of this Agreement, would constitute a breach of any representation make available for inspection by Buyers at the Premises and/or electronically all Existing Leases and warranty of Seller contained in this Agreement (provided that the failure of Seller to comply with this clause (y) shall in no event cause the failure of the condition set forth in Section 6.01(b)). Without limiting the foregoing Seller will not, without the prior written consent of Buyer (not to be unreasonably withheld, conditioned or delayed):
(i) increase any compensation payable to any Employees or make any other change in the terms of employment of any of the Employees not consistent with past practices;
(ii) except for cause, dismiss or transfer any key senior management Employee and Seller shall promptly notify Buyer of any such dismissal or transfer;
(iii) create any further Encumbrances on any of the Purchased Assets;
(iv) amend or agree to amend in a manner adverse to the Business any of the Assigned Contracts;
(v) enter into or amend any other Contracts for the Business other than ordinary course purchases from suppliers and sales to customers of the Business;
(vi) amend or agree to amend any of the Assigned Permits; or
(vii) assign, transfer, license, or abandon any Assigned Intellectual Property or Assigned Technology other than in the ordinary course of business.
(b) Seller shall use all commercially reasonable efforts to obtain, at or before the time of the Closing, at its expense, all of the consents to assign the Assigned Contracts and Assigned Permits provided that Seller shall not be required to pay or commit to pay any amount to any Person to obtain any such consents;
(c) Seller shall pay and discharge its liabilities relating to the Business and the Purchased Assets as they come due in the ordinary course in accordance and consistent with its previous practice, except those contested in good faith by Seller;
(d) until the earlier of the completion of the Closing or any termination of this Agreement, Seller will deal exclusively with Buyer with respect to the sale of the Business and the Purchased Assets, and Seller and its directors, officers, employees, representatives and agents shall not, directly or indirectly, solicit, encourage, or initiate any offer or proposal from, or engage in any discussions or negotiations or enter into any agreement, commitment or understanding or otherwise act jointly or in concert with, or provide any information to, any Person or entity, other than Buyer and its affiliates, employees, representatives and agents, concerning any transaction involving the Business or the Purchased Assets;
(e) Seller shall use all commercially reasonable efforts to obtain by the time of the Closing, at its expense, discharges of all Encumbrances against the Purchased Assets that are not Permitted Encumbrancesrelated documentation; and
(f) between the date of this Agreement and the Closing, Seller shall use reasonable efforts to consult in good faith on a regular and frequent basis with the representatives of Buyer to report material operational developments and the general status of ongoing operations pursuant to procedures reasonably requested by Buyer or such representatives that do not unduly interfere with Seller's operation of the Business.
Appears in 1 contract
SELLER’S OBLIGATIONS PRIOR TO CLOSING. Without in any way limiting any other obligations of Seller under this Agreement, covenants that during the period from the date of this Agreement to the ClosingApplicable Period (as defined below), Seller shall:
(a) Operate the Premises in substantially the same manner as Seller (x) shall conduct has previously been operating the Business only Premises, including payment of all utility, tax, service, payroll and other bills received that are due and payable prior to the Closing Date in the ordinary and normal course and shall use commercially reasonable efforts to preserve the Business and the Purchased Assets and the goodwill of suppliers, customers and others having business relations connection with the Business consistent operation of the Premises and maintain and keep the Premises in good repair and working condition, ordinary wear and tear and casualty excepted subject to the provisions of Section 10.1;
(b) Maintain until the Closing Date the property and general liability insurance policy or policies presently in force with past practice respect to the Premises, including workmen’s compensation insurance, or the insurance equivalent in amount and coverage;
(yc) shall notNot enter into or renew any contract which would become the obligation of Buyer after the Closing, or grant any title encumbrance on the Land, without the prior written consent of Buyer, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, would constitute a breach of any representation and warranty of Seller contained in this Agreement (provided that the failure of Seller to comply with this clause (y) shall in no event cause the failure of the condition set forth in Section 6.01(b)). Without limiting the foregoing Seller will not, without the prior written consent of Buyer (not to be unreasonably withheld, conditioned or delayed):
(i) increase any compensation payable to any Employees or make any other change in the terms of employment of any of the Employees not consistent with past practices;
(ii) except for cause, dismiss or transfer any key senior management Employee and Seller shall promptly notify Buyer of any such dismissal or transfer;
(iii) create any further Encumbrances on any of the Purchased Assets;
(iv) amend or agree to amend in a manner adverse to the Business any of the Assigned Contracts;
(v) enter into or amend any other Contracts for the Business other than ordinary course purchases from suppliers and sales to customers of the Business;
(vi) amend or agree to amend any of the Assigned Permits; or
(vii) assign, transfer, license, or abandon any Assigned Intellectual Property or Assigned Technology other than in the ordinary course of business.
(b) Seller shall use all commercially reasonable efforts to obtain, at or before the time of the Closing, at its expense, all of the consents to assign the Assigned Contracts and Assigned Permits provided that Seller shall not be required to pay or commit to pay any amount to any Person to obtain any such consents;
(c) Seller shall pay and discharge its liabilities relating to the Business and the Purchased Assets as they come due in the ordinary course in accordance and consistent with its previous practice, except those contested in good faith by Seller;
(d) until Not remove any Equipment from the earlier of the completion of the Closing or any termination of this Agreement, Seller will deal exclusively with Buyer with respect to the sale of the Business and the Purchased Assets, and Seller and its directors, officers, employees, representatives and agents shall not, directly or indirectly, solicit, encourage, or initiate any offer or proposal from, or engage Premises except as provided in any discussions or negotiations or enter into any agreement, commitment or understanding or otherwise act jointly or in concert with, or provide any information to, any Person or entity, other than Buyer and its affiliates, employees, representatives and agents, concerning any transaction involving the Business or the Purchased AssetsSection 10.2 hereof;
(e) Not terminate any material Operating Agreement unless Buyer has either (i) consented to such termination, or (ii) failed to give written notice of Buyer’s refusal so to consent within five (5) days after Seller shall use all commercially reasonable efforts gives Buyer written notice of Seller’s intention to obtain by the time terminate such agreement. Buyer agrees not to unreasonably withhold, condition or delay such consent;
(1) Not enter any new lease or (2) occupancy agreement of any kind relating to any portion of the ClosingBuilding which is vacant on the Effective Date or which may hereafter become vacant, at its expenseunless in each case Buyer has either (i) approved such lease in writing, discharges or (ii) failed to give written notice of all Encumbrances against Buyer’s election not to approve such lease within five (5) days after Seller gives Buyer (x) written notice of the Purchased Assets that are not Permitted Encumbrancesidentity of the proposed tenant, together with such financial and other information about the proposed tenant as Buyer may reasonably require, and (y) written notice of the general terms of the proposed lease; and
(fg) between the date of this Agreement and the Closing, Seller shall use reasonable efforts to consult in good faith on a regular and frequent basis with the representatives of Promptly notify Buyer to report material operational developments and the general status of ongoing operations pursuant to procedures reasonably requested by Buyer or such representatives that do not unduly interfere with Seller's operation of the Businessreceipt by Seller of, and deliver to Buyer a copy of, any written (i) notice from any federal, state or local government, agency, authority, board, commission, department or instrumentality relating to the compliance of the Premises with any applicable law, code, ordinance, rule or regulation or (ii) alleged violation of any law or regulation relating to, or claim asserted by, any employee of the Seller.
Appears in 1 contract
