SELLER’S OBLIGATIONS PRIOR TO CLOSING. 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 material respects, any leasing 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 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 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; vii. After the Date of this Agreement, make available for inspection by Buyers at the Premises and/or electronically all Existing Leases and related documentation; and
Appears in 1 contract
SELLER’S OBLIGATIONS PRIOR TO CLOSING. a. Sellers agree thatWithout in any way limiting any other obligations of Seller under this Agreement, until during the Time period from the date of this Agreement to the Closing, Sellers shall:
i. Operate(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, maintain, customers and rent others having business relations with the Premises substantially in accordance Business consistent with past practice.
ii. Promptly pay all amounts due practice and owing under (y) shall not, without the Loan Documents and comply with all other obligations thereunder in all material respects. In addition, Sellers shall not hereafter executeprior written consent of Buyer, enter into any transaction or consent to refrain from doing any modificationaction that, amendment or termination if effected before the date of this Agreement, would constitute a breach of any Loan Documentsrepresentation 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, or make any material elections or waivers thereunder, unless Sellers have obtained Buyers’ without the prior written consent thereto of Buyer (which may be exercised in Buyers’ sole discretion).
iii. maintain in full force and effect the insurance policies relating not 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 material respects, any leasing 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, 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 thatfor cause, during 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 Due Diligence Period, Seller may Purchased Assets;
(iv) amend or agree to amend in a manner adverse to the Business any of the Assigned Contracts;
(v) enter into new Service or amend any other Contracts (for the Business other than Radon Mitigation Contracts)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, and amendtransfer, modify license, or terminate existing Service Contracts, abandon any Assigned Intellectual Property or Assigned Technology other than in each case without Buyers’ prior approval, so long as the Service Contract at issue is (and continues to be), by its terms, terminable or cancelable as ordinary course 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 liabilitybusiness.
vi. allow Buyers(b) Seller shall use all commercially reasonable efforts to obtain, at or before the time of the Closing, at its agentsexpense, employees, contractors, consultants all of the consents to assign the Assigned Contracts and other representatives, reasonable access 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 Premises Business and the Purchased Assets as they come due in the ordinary course in accordance and consistent with the provisions of this Agreementits previous practice, except those contested in good faith by Seller;
vii. After (d) until the Date earlier of the completion of the Closing or any termination of this Agreement, make available for inspection 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 Buyers the time of the Closing, at its expense, discharges of all Encumbrances against the Premises and/or electronically all Existing Leases and related documentationPurchased 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. a. Sellers agree that, until As a material inducement to Englewood entering into this Agreement and as a condition to Englewood’s obligations hereunder:
10.1 Between the Time of date hereof and Closing, Sellers Seller shall:
i. Operate, maintain, and rent the Premises substantially 10.1.1 inform Englewood promptly 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 writing upon learning of any Loan Documents, or make matter which would cause any material elections or waivers thereunder, unless Sellers have obtained Buyers’ prior written consent thereto (which may be exercised of the representations and warranties of Seller contained 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 this Agreement to be transferred to Buyersuntrue, no apportionment of the premiums therefor shall be made, and Buyers are responsible for securing their own insurance for the Premises)incorrect or incomplete;
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 10.1.2 not enter into any new, leases or amend grant any other rights in the Property without first obtaining Englewood’s written consent thereto.
10.1.3 not engage in any material respects, any leasing 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 vertical development on the Property.
10.2 Seller shall not be unreasonably withheldmarket the Property for sale or transfer or convey or agree to transfer or convey any interest in the Property, except that, during the Due Diligence Period, Seller may enter into new Service Contracts (other than Radon Mitigation Contractsto Englewood (or its assign), and amendat Closing, modify or terminate existing Service Contractstitle to the Property shall be owned by Seller in fee simple free and clear of all mortgages, in each case without Buyers’ prior approvalliens, so long as encumbrances, easements and other matters except for any items shown on the 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 liabilityTitle Commitment.
vi. allow Buyers, its agents, employees, contractors, consultants and other representatives, reasonable access 10.3 Seller will insure that the Property conforms to the Premises 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 residential property adjacent to the pump station shall include information that informs nearby residents about construction in accordance the area, truck traffic (both during construction and periodically during normal operations).
10.3.3 A general access easement for the pump house will be aligned with the provisions concrete drive isle within the apartment development by separate instrument.
10.3.4 Prior to vertical construction on Planning Area F, Seller will install, at its cost, 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 this Agreement;City Ditch will be provided east of the apartment garages, separated by a barrier from the apartments. Such easement will be provided by separate instrument.
vii. After 10.3.6 The grade around the Date future pump station will be raised to be level with the rest of this Agreement, make available Parcel F with a 2% slope to the west.
10.3.7 Englewood shall have the right to use an area immediately west of the expanded pump location for inspection by Buyers at temporary construction access and staging during the Premises and/or electronically all Existing Leases and related documentation; andpump station build-out.
Appears in 1 contract
Samples: Purchase and Sale Agreement
SELLER’S OBLIGATIONS PRIOR TO CLOSING. a. Sellers agree thatSeller covenants that during the Applicable Period (as defined below), until the Time of Closing, Sellers Seller shall:
i. Operate, maintain, and rent (a) Operate the Premises in substantially in accordance with past practice.
ii. Promptly pay the same manner as Seller has previously been operating the Premises, including payment of all amounts utility, tax, service, payroll and other bills received that are due and owing under payable prior to the Loan Documents Closing Date in connection with the operation of the Premises and comply 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 all other obligations thereunder respect to the Premises, including workmen’s compensation insurance, or the insurance equivalent in all material respects. In addition, Sellers shall not hereafter execute, amount and coverage;
(c) Not enter into or consent to renew any modification, amendment or termination contract which would become the obligation of any Loan DocumentsBuyer after the Closing, or make grant any material elections or waivers thereundertitle encumbrance on the Land, unless Sellers have obtained Buyers’ without the prior written consent thereto of Buyer;
(d) Not remove any Equipment from the Premises except as provided in Section 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 gives Buyer written notice of Seller’s intention to 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 Building which is vacant on the Effective Date or which may be exercised hereafter become vacant, unless in Buyers’ sole discretion).each case Buyer has either (i) approved such lease in writing, or (ii) failed to give written notice of Buyer’s election not to approve such lease within five (5) days after Seller gives Buyer (x) written notice of the identity 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
iii. maintain in full force (g) Promptly notify Buyer of the receipt by Seller of, and effect the insurance policies 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 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 compliance of the premiums therefor shall be madePremises with any applicable law, and Buyers are responsible for securing their own insurance for the Premises);
iv. not grant any lien code, ordinance, rule or encumbrance on the Premises without the prior consent of Buyers regulation or (it being agreed that any lien or encumbrance granted by Seller or its affiliates in ii) alleged violation of this covenant shall constitute a “Must-Cure Item” for all purposes herein);
v. From and after the Effective Dateany law or regulation relating to, Sellers (a) shall perform their respective obligations under all or claim asserted by, any employee of the Leases, (b) shall not enter into any new, or amend in any material respects, any leasing 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 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 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 liabilitySeller.
vi. allow Buyers, its agents, employees, contractors, consultants and other representatives, reasonable access to the Premises in accordance with the provisions of this Agreement;
vii. After the Date of this Agreement, make available for inspection by Buyers at the Premises and/or electronically all Existing Leases and related documentation; and
Appears in 1 contract
SELLER’S OBLIGATIONS PRIOR TO CLOSING. a. Sellers agree Seller agrees that, until the Time of Closing, Sellers Seller 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. a) 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 and comply with any requirements, arising prior to the Time of Closing, under such 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)policies;
iv. (b) not grant any lien or encumbrance on the Premises nor enter into any management, service or maintenance contract which might become the obligation of Buyer after the Closing, without the prior written consent of Buyer;
(c) not enter into any new lease of any portion of the Premises without the prior written consent of Buyers (it being agreed that any lien or encumbrance granted Buyer except leases of residential apartment units in the ordinary course of business using the standard form lease currently in use by Seller or its affiliates in violation of this covenant shall constitute a “Must-Cure Item” and at rates at least equal to those currently charged by Seller for all purposes herein)similarly sized and located units;
v. From and after the Effective Date, Sellers (ad) shall perform their respective obligations under all of the Leases, (b) shall not enter into any new, or amend in any material respects, any leasing 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 allow Buyer’s prior written consent, which consent shall not be unreasonably withheld, except that, during the 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 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 AgreementParagraph 4, above;
vii. After the Date of this Agreement, (e) make available to Buyer for inspection by Buyers Buyer's review at the Premises and/or electronically all Existing Leases Leases, Existing Contracts, and, to the extent in Seller's possession, plans and related documentationdrawings 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 within 30 days prior to the Closing, such termination to be effective on or before the Time of Closing or as soon thereafter as may be permitted under the Existing Contracts which are to be terminated; and
(g) Seller shall (i) perform any and all obligations of Seller under the Existing Leases, (ii) upon receipt of 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, stated in such notice, and (iii) carry on the operation of the Premises 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. a. Sellers agree thatWithout in any way limiting any other obligations of Seller under this Agreement, until during the Time period from the date of this Agreement to the Closing, Sellers shall:
i. Operate(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, maintain, customers and rent others having business relations with the Premises substantially in accordance Business consistent with past practice.
ii. Promptly pay all amounts due practice and owing under (y) shall not, without the Loan Documents and comply with all other obligations thereunder in all material respects. In addition, Sellers shall not hereafter executeprior written consent of Buyer, enter into any transaction or consent to refrain from doing any modificationaction that, amendment or termination if effected before the date of this Agreement, would constitute a breach of any Loan Documentsrepresentation 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, or make any material elections or waivers thereunder, unless Sellers have obtained Buyers’ without the prior written consent thereto of Buyer (which may be exercised in Buyers’ sole discretion).
iii. maintain in full force and effect the insurance policies relating not 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 material respects, any leasing 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, 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 thatfor cause, during 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 Due Diligence Period, Seller may Purchased Assets;
(iv) amend or agree to amend in a manner adverse to the Business any of the Assigned Contracts;
(v) enter into new Service or amend any other Contracts (for the Business other than Radon Mitigation Contracts)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, and amendtransfer, modify license, or terminate existing Service Contracts, abandon any Assigned Intellectual Property or Assigned Technology other than in each case without Buyers’ prior approval, so long as the Service Contract at issue is (and continues to be), by its terms, terminable or cancelable as ordinary course 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 liabilitybusiness.
vi. allow Buyers(b) Seller shall use all commercially reasonable efforts to obtain, at or before the time of the Closing, at its agentsexpense, employees, contractors, consultants all of the consents to assign the Assigned Contracts and other representatives, reasonable access 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 Premises Business and the Purchased Assets as they come due in the ordinary course in accordance and consistent with the provisions of this Agreementits previous practice, except those contested in good faith by Seller;
vii. After (d) until the Date earlier of the completion of the Closing or any termination of this Agreement, make available for inspection 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 Buyers the time of the Closing, at its expense, discharges of all Encumbrances against the Premises and/or electronically all Existing Leases and related documentationPurchased 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
