Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate. (b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 6 contracts
Samples: Purchase and Sale Agreement (Midlantic Office Trust, Inc.), Purchase and Sale Agreement (Midlantic Office Trust, Inc.), Purchase and Sale Agreement (Midlantic Office Trust, Inc.)
Tenant Estoppel Certificates. Subject to the terms of this Paragraph 3(d)(i), receipt by Buyer prior to Closing of tenant estoppel certificates addressed to Buyer and its successors, assigns and lenders, executed by Tenants (awhich must include the “Required Tenants”, as hereinafter defined) Seller agrees from with respect to such Tenants’ Leases, and after receipt dated no earlier than February 20, 2019, representing at least seventy percent (70%) of the Assumption Approval occupied area of the Improvements (the “Required Estoppel Percentage”), substantially in the form attached hereto as Exhibit E, in the form required pursuant to such Tenant’s Lease or in a form that contains the information required to be estopped to by the Tenant pursuant to its Lease (the “Tenant Estoppel Certificates”). Seller shall use reasonable efforts (but without obligation to incur any cost or expense or institute any legal action) to obtain and deliver such Tenant Estoppel Certificates from all Tenants. Seller shall provide copies to Buyer of all Tenant Estoppel Certificates executed by Tenants, and all responses or responsive drafts submitted by all Tenants following the request from such Tenant for the Tenant Estoppel Certificate. If any Tenant Estoppel Certificate (whether executed by a Tenant or submitted in revised draft form from any tenant), or any response from a Tenant following a request for a Tenant Estoppel Certificate, includes material adverse disclosures that were not previously disclosed in the applicable Lease, this Agreement or any other document delivered or made available to Buyer prior to the expiration of the Due Diligence Period (each, a “Noncomplying Tenant Estoppel Certificate”), then Buyer shall have the right to object to such Noncomplying Tenant Estoppel Certificate, in which case such Noncomplying Tenant Estoppel Certificate shall not count toward satisfaction of the condition precedent to Buyer’s obligation to proceed to Closing set forth in Section 9.1 and provided this Agreement is in full force and effect, Paragraph 3(d)(i). If Buyer fails to deliver written notice to Seller setting forth Buyer’s objections to any Noncomplying Tenant Estoppel Certificate within five two (52) business days after being requested by Purchaser Buyer’s receipt thereof (which may be submitted to do so, to deliver to all tenants of the Property a request for an estoppel certificate Buyer in either the form of EXHIBIT D attached heretoproposed to be executed by such Tenant or as executed by such Tenant, which form and which, notwithstanding Paragraph 20, may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"Buyer via electronic mail), Seller agrees then Buyer shall be conclusively deemed to use good faith efforts to obtain have approved such Noncomplying Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 4 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement
Tenant Estoppel Certificates. Seller shall have delivered to Purchaser Tenant Estoppel Certificates from (aA) Seller agrees from and after receipt each of the Assumption Approval as set forth following tenants: The Goodyear Tire & Rubber Company, Sybase, Inc., WellPoint, Inc. (which WellPoint, Inc. Tenant Estoppel Certificate shall include an acknowledgement by WellPoint, Inc., in Section 9.1 a form approved by Purchaser, that WellPoint, Inc.’s right of first refusal and/or right of first offer to purchase the Property leased by WellPoint, Inc. has terminated by its terms) and provided this Agreement is Northrop Grumman Information Technology, Inc. (collectively, the “Prime Tenants”), and (B) the tenants of single tenant buildings and tenants of more than 25,000 square feet in full force and effectmulti-tenanted buildings, within five in all cases not leased to the Prime Tenants, for those Properties which represent not less than seventy percent (570%) business days after being requested by Purchaser to do so, to deliver of the Purchase Price allocated to all tenants portions of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject not leased to the provisions of subparagraph Prime Tenants (bcollectively, the “Non-Prime Tenants”) below(this item 7.2.2(4)(B) is referred to herein as, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"“Estoppel Requirement”), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give extent the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall Requirement has not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work been satisfied on or prior to the Closing DateDate (the “Estoppel Shortfall”), by paying the money on or prior iStar shall execute and deliver, and Purchaser agrees to accept, estoppel certificates (“Seller Estoppels”) with respect to the Closing DateEstoppel Shortfall, or by granting Purchaser a credit against subject to the Purchase Price Seller Estoppel Cap, in an amount reasonably necessary to perform such work, the form attached hereto as reasonably determined by Seller and PurchaserExhibit I, in which event such Seller shallEstoppels together with the Tenant Estoppel Certificates shall satisfy the Estoppel Requirement; provided, at however, that (i) the Seller Estoppels shall not be subject to the “basket” or before the Closing, cure, perform, pay or grant Purchaser a credit “cap” provisions with respect to Seller’s liability set forth in Section 9.3, (ii) the same.Seller Estoppels shall not represent more than twenty (20%) percent of the Estoppel Requirement (the “Seller Estoppel Cap”) and (iii) a Seller Estoppel shall in no event eliminate the need for Seller to deliver a ROFO Acknowledgment from all tenant from which a ROFO Acknowledgment otherwise is required. A response from a tenant which materially contradicts the information set forth in such tenant’s Lease or in the Exhibits attached hereto or in the representations of Seller set forth herein shall not constitute a Tenant Estoppel Certificate for purposes of this Section 7.2.2(4);
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Dividend Capital Total Realty Trust Inc.), Purchase and Sale Agreement (Istar Financial Inc)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, to submit or cause Property Manager to submit within five (5) business days after being requested by Purchaser the Effective Date hereof to do so, to deliver to all tenants of the Property each and every tenant or lessee under a Lease a request for an such tenant or lessee to execute and deliver to Purchaser a tenant estoppel certificate with respect to its Lease in the form of EXHIBIT D attached hereto, which hereto as Exhibit G or on the form may be revised if so requested promulgated by the Existing Lendertenant and reasonably acceptable to Purchaser, or required by the applicable Lease. The parties agree that, subject to the provisions of subparagraph (b) below, it It shall be a condition precedent to Purchaser's ’s obligation to close under this Agreement purchase the Property that an Purchaser receive and reasonably approve tenant estoppel certificate either substantially certificates from all tenants or lessees leasing in excess of 5,000 gross square feet (“Major Tenants”) and from a sufficient number of non-Major Tenants so that Purchaser shall have received estoppel certificates from such number of tenants or lessees which collectively occupy at least eighty percent (80%) of the leased square footage of the Property (collectively, the “Required Estoppels”) on the form of EXHIBIT D the estoppel certificates attached as Exhibit G or in on the form promulgated by the tenant and reasonably acceptable to Purchaser, or required by a tenant's the applicable Lease, dated not earlier than ten (10) business days prior . Seller shall deliver or cause to the Closing Date, be delivered to Purchaser no later than five the Required Estoppels within the earlier to occur of (5i) two (2) business days before Closing from tenants under of Seller’s receipt of same, or (ii) thirty (30) days after the Leases occupying, in Effective Date. Purchaser shall have until the aggregate, not less than 75% expiration of the rentable area Approval Period to disapprove of any such Required Estoppel, it being understood that if Purchaser does not disapprove of any Required Estoppel before the expiration of the PropertyApproval Period, including all tenants occupying at least then Purchaser shall be deemed to have approved such Required Estoppel. Seller shall make a full floor or more commercially reasonable number of space oral and a minimum of one (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant 1) written request for the Required Estoppels, provided however, Seller but shall not be obligated to pay tenants expend any funds in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% connection with obtaining any of the rentable area estoppel certificates, including the Required Estoppels described in this Section 4.6, and the failure of Seller to obtain any such estoppel certificates, including the Required Estoppels shall not be a breach or default hereunder. If Purchaser does not receive and reasonably approve the Required Estoppels on or before the end of the PropertyApproval Period, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying extend the Approval Period up to an additional 15% fourteen (14) days for the limited purpose of allowing Seller to obtain the Required Estoppels. If Purchaser does not receive and reasonably approve the Required Estoppels on or before the expiration of such fourteen (14) day extension of the rentable area of the Property Approval Period, if applicable, Purchaser may either (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE"i) and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing delivered to SellerSeller on or before the expiration of such extended Approval Period, on in which event the earlier of five (5) business days after the date of delivery Xxxxxxx Money shall be returned to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation further obligations hereunder other than as may be expressly provided for in this Agreementthe Surviving Obligations, or (ii) waive the foregoing condition precedent and proceed to Closing. Notwithstanding the foregoing, If Purchaser shall not have terminated this Agreement under this Section 4.6 prior to the expiration of the Approval Period or the extension thereof as provided for herein, Purchaser shall be deemed for all purposes to be satisfied with the responses to Seller’s requests for tenant estoppel certificates, including the Required Estoppels and the form and substance of each tenant estoppel certificate and shall have no further right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by based on the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) response or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit lack thereof with respect to the sametenant estoppel certificates, including the Required Estoppels.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Global Growth Trust, Inc.)
Tenant Estoppel Certificates. (a) On or before the Estoppel Delivery Deadline, Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, shall use commercially reasonable efforts to deliver to all tenants Buyer a fully completed and executed estoppel certificate from each of the Property Tenants (each, a request for an estoppel certificate “Tenant Estoppel Certificate”), each of which shall be dated effective no earlier than thirty (30) Calendar Days prior to the date of delivery. To be accepted by Buyer, each Tenant Estoppel Certificate must be duly executed by the applicable Tenant of the applicable Lease, and, except as provided below, must contain substantially the same terms and be in substantially the same form and substance as the form of EXHIBIT D certificate attached heretohereto as Exhibit I and incorporated by reference herein; provided, which however, that if (i) a form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially is attached to or otherwise prescribed in the form of EXHIBIT D or in the form required by a tenant's an applicable Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (bii) the date Purchaser obtains an applicable Lease provides that a particular form of estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
be used, then such form (bbut not the content) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable to Buyer; provided, however, that Buyer shall have the right to review and approve or disapprove of all matters relating to the Leases and the forms of estoppel certificate prescribed therein during the Investigation Period in accordance with the procedures set forth in Section 4.1 hereof. Seller shall also use commercially reasonable efforts to deliver to Buyer Tenant Estoppel Certificates duly executed by the guarantors of the Leases, as applicable. Buyer acknowledges that Tenant Estoppel Certificates may be appropriately modified for purposes Tenants that are not yet open, ground leases and other relevant facts regarding each Lease, provided such modified Tenant Estoppel Certificates shall be subject to Buyer’s review and approval in accordance with the provisions of this Section 7.4.55.1(h). In the event a Seller is unable to obtain Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller Certificates from: (collectively, a "MATERIAL DEFAULT"), subject to 1) all of the following provisions of this Section 7.4.5), Purchaser's sole Major Tenants; and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller(2) Shop Tenants representing the Minimum Tenant Square Footage Requirement, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give before the Estoppel Termination NoticeDelivery Deadline, then subject to Seller's option set forth belowBuyer, this Agreement as its sole remedy, shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if and the Escrow in accordance with the provisions of Section 8.5(a) hereof. In the event Seller is able to obtain Tenant Estoppel(sEstoppel Certificates from: (I) allege Material Default(sall of the Major Tenants; and (II) if (x) such Material Default(s) can be remedied by Shop Tenants representing the performance Minimum Tenant Square Footage Requirement, on or before the Estoppel Delivery Deadline, but Seller is not able to obtain Tenant Estoppel Certificates from all of work costing not more than $50,000 the other Shop Tenants, then Seller shall deliver to Buyer, prior to the Estoppel Delivery Deadline, a landlord estoppel certificate in the aggregate for all such Tenant Estoppel(s) or the payment form of money not exceeding $50,000 in the aggregate Exhibit “J,” attached hereto and incorporated herein by reference (each, a “Landlord Estoppel Certificate”), with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such each Shop Tenant Lease for which a Tenant Estoppel to Purchaser), at Seller's option (but Certificate has not been obtained in lieu of the Tenant Estoppel Certificate for such Lease. If Seller shall have no obligation), to cure has not timely delivered a Tenant Estoppel Certificate from those Shop Tenants representing the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing DateMinimum Tenant Square Footage Requirement, or by granting Purchaser alternatively, if Seller has timely delivered a credit against Tenant Estoppel Certificate from those Shop Tenants representing the Purchase Price in an amount reasonably necessary Minimum Tenant Square Footage Requirement, but has not provided a Tenant Estoppel Certificate nor provided a Landlord Estoppel Certificate to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit Buyer with respect to any remaining Lease before the sameEstoppel Delivery Deadline, then the provisions of Section 8.5(a) shall govern.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Excel Trust, Inc.), Purchase and Sale Agreement (Excel Trust, Inc.)
Tenant Estoppel Certificates. The Owners shall request, or shall cause the Partnership to request, and Cedar shall have received estoppel certificates certified to the Partnership and dated not more than thirty (a30) Seller agrees days prior to the Closing Date ("Tenant Estoppel Certificates") duly executed by (i) each Major Tenant and (ii) such other Tenants so that Tenant Estoppel Certificates shall have been received from and after receipt Tenants occupying, in the aggregate (including the space demised to Major Tenants), at least 80% of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants rentable square footage of the Property a request for an estoppel certificate in (the form of foregoing condition, the "Estoppel Condition"). "Major Tenants" mean those Tenants set forth on EXHIBIT D attached L annexed hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it Tenant Estoppel Certificates shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of and substantially upon the terms set forth on EXHIBIT D or M annexed hereto. The Owners shall deliver the original executed Tenant Estoppel Certificates to Cedar as and when the same shall be delivered to the Owners, but in the form required by a tenant's Lease, dated not earlier no event later than ten (10) business days Business Days prior to the Closing Date. If any Tenant Estoppel Certificate shall have been modified or qualified in any fashion that, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupyingindividually or in connection with other Tenant Estoppel Certificates, reveals facts, conditions or circumstances which result or may result in a material adverse change in the aggregate, not less than 75% of the rentable area financial condition of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants are inconsistent in order to do so. Notwithstanding any material respect with the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% representations of the rentable area of Owners set forth in Section 4.1 above, then Cedar may disapprove the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property same (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinaftersuch disapproved Tenant Estoppel Certificates, the "SELLER'S ESTOPPEL CERTIFICATEUnacceptable Certificates") and by notice delivered to the statements Owners promptly following Cedar's receipt of Seller contained therein shall survive such Unacceptable Certificate, and, for purposes of establishing whether the Closing until the earlier of (a) one hundred and eighty (180) days after ClosingEstoppel Condition has been satisfied, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications any Unacceptable Certificates shall be deemed not to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samebeen received.
Appears in 2 contracts
Samples: Recapitalization Agreement (Cedar Shopping Centers Inc), Recapitalization Agreement (Cedar Shopping Centers Inc)
Tenant Estoppel Certificates. On or before the Estoppel Delivery Deadline, Seller shall deliver to Buyer a fully completed and executed estoppel certificate from each of the Tenants (aeach, a “Tenant Estoppel Certificate”), each of which shall be dated effective no earlier than thirty (30) Calendar Days prior to the Closing Date. Seller agrees from that each Tenant Estoppel Certificate shall contain the same terms and after receipt be in the same form and substance as the form of certificate attached hereto as Exhibit “H” and incorporated herein by reference, and shall otherwise be in form and substance satisfactory to Buyer. Each Tenant Estoppel Certificate shall be duly executed by the applicable Tenant thereof and each guarantor of the Assumption Approval as set forth in Section 9.1 and provided this Agreement applicable Lease, if any. In the event Seller is in full force and effectable to obtain Tenant Estoppel Certificates from those Tenants representing the Minimum Tenant Square Footage Requirement on or before the Estoppel Delivery Deadline, within five (5) business days after being requested by Purchaser but Seller is not able to do soobtain Tenant Estoppel Certificates from all of the Tenants, to then Seller shall deliver to all tenants of Buyer, prior to the Property Estoppel Delivery Deadline, a request for an landlord estoppel certificate in the form of EXHIBIT D Exhibit “I,” attached heretohereto and incorporated herein by reference (each, a “Landlord Estoppel Certificate”), with respect to each Lease for which form a Tenant Estoppel Certificate has not been obtained in lieu of the Tenant Estoppel Certificate for such Lease. If Seller has not timely delivered a Tenant Estoppel Certificate from those Tenants representing the Minimum Tenant Square Footage Requirement, or alternatively, if Seller has timely delivered a Tenant Estoppel Certificate from those representing the Minimum Tenant Square Footage Requirement, but has not provided a Tenant Estoppel Certificate nor provided a Landlord Estoppel Certificate to Buyer with respect to any remaining Leases before the Estoppel Delivery Deadline, then, in such a case, Buyer may exercise one of the following options on or before the Closing Date: (1) waive the requirement to receive the Estoppel Certificates which Seller failed to deliver, continue this Agreement in effect without modification and purchase and acquire the Property in accordance with the terms and conditions of this Agreement; provided the Scheduled Closing Date shall automatically be revised if so requested by extended to the Existing Lender. The parties agree that, subject Extended Closing Date; or (2) terminate this Agreement and the Escrow pursuant to the provisions of subparagraph (bSection 8.5(a) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% hereof. Upon Buyer’s receipt of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafterEstoppel Certificates, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller Sections 5.1(g)(i) and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same(ii) shall apply.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Pacific Office Properties Trust, Inc.), Purchase and Contribution Agreement (Pacific Office Properties Trust, Inc.)
Tenant Estoppel Certificates. 23.1 Upon request, and within ten (a10) Seller agrees from Business Days after written notice given by or on behalf of Landlord, Tenant shall furnish Landlord with a tenant estoppel certificate signed by Tenant certifying as to such matters relating to the then current status of this Lease as may be reasonably requested by Landlord (or any Superior Lessor (as hereinafter defined), Superior Mortgagee (as hereinafter defined), prospective lessor, prospective mortgagee, prospective purchaser or other party), including:
(1) The Commencement Date and after receipt Expiration Date of this Lease;
(2) That this Lease is unmodified and in full force and effect or, if there has been a modification, that the Assumption Approval as set forth in Section 9.1 and provided this Agreement same is in full force and effect, within five as modified, and stating such modification;
(3) Whether to the Tenant’s actual knowledge there are any defaults by Landlord or Tenant hereunder (without any duty of investigation);
(4) Whether to Tenant’s actual knowledge there are any existing setoffs or defenses against the enforcement of any of the terms, covenants and conditions of this Lease and whether there are any obligations of Landlord or Tenant to be performed or complied with and, if so, specifying the same;
(5) business days after being requested The date to which Base Rent, Additional Rent and all other charges have been paid;
(6) The amount of any security deposit or letter of credit hereunder; and
(7) Any other matters reasonably requested.
23.2 Any statement furnished pursuant to this Section may be relied upon by Purchaser Landlord (or any Superior Lessor, Superior Mortgagee, prospective lessor, prospective mortgagee, prospective purchaser or other party). If Tenant fails to do so, to deliver to all tenants of the Property a request for an execute any tenant estoppel certificate in within the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form time-frame required by a tenant's Leasethis Section, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later and such failure continue for more than five (5) business days before Closing after Tenant’s receipt of a second notice from tenants under Landlord requesting such tenant estoppel certificate, then (1) such failure shall, at Landlord’s option, be deemed an Event of Default, without the Leases occupying, requirement that Landlord give any additional notice and cure period and (2) Tenant shall pay to Landlord a fee in the aggregate, not less than 75% amount of $200.00 per day for each day beyond the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees applicable time period that Tenant fails to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications such certificate. Such fee shall be deemed in addition to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder Landlord’s other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameremedies hereunder.
Appears in 2 contracts
Samples: Sublease (Larimar Therapeutics, Inc.), Office Lease Agreement (Zafgen, Inc.)
Tenant Estoppel Certificates. (a) On or before the Estoppel Delivery Deadline, Seller agrees shall deliver to Buyer a fully completed and executed estoppel certificate from and after receipt each of the Assumption Approval Tenants (each, a “Tenant Estoppel Certificate”), each of which shall be dated effective no earlier than thirty (30) Calendar Days prior to the Closing Date. Each Tenant Estoppel Certificate shall be duly executed by the applicable Tenant thereof and each guarantor of the applicable Lease, if any. Each Tenant Estoppel Certificate shall contain substantially the same terms and be in substantially the same form and substance as set forth the form of certificate attached hereto as Exhibit “I,” and incorporated by reference herein; provided, however, that if (i) a form of estoppel certificate is attached to or otherwise prescribed in Section 9.1 an applicable Lease, (ii) if the applicable Lease provides that a particular form of estoppel certificate be used; or (iii) the Tenant is a national tenant that customarily issues its own form of estoppel certificate, such form shall be deemed to be acceptable to Buyer (so long as, in the case of clause (i) only, it is accompanied by a Landlord Estoppel Certificate and, in the case of clause (ii) only, such form contains, at a minimum, the amount of rental payments, the square footage covered by the Lease, a statement as to such Tenant’s knowledge of any existing defaults, a statement that the Tenant has unconditionally accepted the leased premises and provided this Agreement commenced paying rent as of a specified date, a statement concerning the formula or methodology for calculating Tenant’s proportionate share of CAM, insurance, taxes and other reimbursements, the expiration date of the Lease, the existence of any renewal, expansion, or first refusal rights, the amount of any security deposit, a definitive list of any remaining obligations to be performed by the Landlord and commercially reasonable subordination, non-disturbance and attornment provisions). Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s right to review and approve or disapprove of all matters relating to the Leases (including the form of estoppels prescribed therein) during the Due Diligence Period. In the event Seller is in full force able to obtain Tenant Estoppel Certificates from: (I) all of the Major Tenants; and effect(II) Tenants representing the Minimum Tenant Square Footage Requirement, within five (5) business days after being requested by Purchaser on or before the Estoppel Delivery Deadline, but Seller is not able to do soobtain Tenant Estoppel Certificates from all of the Tenants, to then Seller shall deliver to all tenants of Buyer, prior to the Property Estoppel Delivery Deadline, a request for an landlord estoppel certificate in the form of EXHIBIT D Exhibit “J,” attached heretohereto and incorporated herein by reference (each, a “Landlord Estoppel Certificate”), with respect to each Lease for which form may be revised a Tenant Estoppel Certificate has not been obtained in lieu of the Tenant Estoppel Certificate for such Lease. If Seller has not timely delivered a Tenant Estoppel Certificate from those Tenants representing the Minimum Tenant Square Footage Requirement, or alternatively, if so requested by Seller has timely delivered a Tenant Estoppel Certificate from those Tenants representing the Existing Lender. The parties agree thatMinimum Tenant Square Footage Requirement, subject but has not provided a Tenant Estoppel Certificate nor provided a Landlord Estoppel Certificate to Buyer with respect to any remaining Lease before the Estoppel Delivery Deadline, then the provisions of subparagraph (bSection 8.5(a) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificategovern.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Excel Trust, Inc.), Purchase and Sale Agreement (Excel Trust, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser 1. Sellers shall use commercially reasonable efforts to do so, to deliver to all tenants of the Property obtain a request for an tenant estoppel certificate from each Tenant (each, a "Tenant Estoppel Certificate", and collectively, the "Tenant Estoppel Certificates").
2. Sellers shall, promptly following the date hereof, deliver a Tenant Estoppel Certificate in the form (but with all relevant information filled in by Sellers) attached hereto and made a part hereof as EXHIBIT GG (the "Tenant Estoppel Certificate Form") to each Tenant of EXHIBIT D attached heretoa Stabilized Premises for execution by such Tenant. Sellers shall deliver to CSCP each executed Tenant Estoppel Certificate promptly following Sellers' receipt thereof (but, which form may be revised if so requested by the Existing Lender. The parties agree that, subject with respect to the provisions of subparagraph (b) belowStabilized Premises, it in all events prior to the Designated Date, with respect to all executed Tenant Estoppel Certificates received prior to the Designated Date). It shall be a condition precedent to PurchaserCSCP's obligation to close under consummate the transactions contemplated by this Agreement with respect to the Stabilized Property that an estoppel certificate either substantially in CSCP shall receive Tenant Estoppel Certificates from all of the form of Tenants set forth on EXHIBIT D or in the form required by HH-1 attached hereto and made a tenant's Leasepart hereof, each (i) dated not no earlier than ten thirty (1030) business days prior to the Closing Date, be delivered (ii) consistent with the terms of the Leases and the representations and warranties of Sellers contained in this Agreement, and (iii) in form substantially similar to Purchaser no later the Tenant Estoppel Certificate Form or in such other form as CSCP shall approve in the exercise of its reasonable judgment (the "Required Stabilized Tenant Estoppels"). If, on or before the Scheduled Stabilized Closing Date, such condition is not satisfied (or waived in writing by CSCP), then CSCP shall have the right, exercisable by delivery of written notice to Seller, to remove the concerned Premises from the Premises being conveyed pursuant to this Agreement and receive a corresponding reduction in the Consideration (unless CSCP shall elect that more than five (5) business days before Closing from tenants under Stabilized Premises in the Leases occupyingaggregate be so removed, regardless of the reason for removal, pursuant to the terms of this Agreement, including, without limitation, pursuant to Article XII hereof, in the aggregatewhich case, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller CSCP shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement by written notice delivered to Sellers (in which event the Title Company shall return the Required Deposit to CSCP and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive a termination of this Agreement)). Either Sellers or CSCP shall have a one (1) time right to extend the Scheduled Stabilized Closing Date for up to thirty (30) additional days if the conditions precedent to CSCP's obligation to close set forth in this Section 2 have not been satisfied prior to the Scheduled Stabilized Closing Date (exercisable by delivery of written notice to the other parties hereto on or prior to the Scheduled Stabilized Closing Date).
3. Sellers shall, following the Completion of a Development Property, deliver a Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 Estoppel Certificate in the aggregate form (but with all relevant information filled in by Sellers) of the Tenant Estoppel Certificate Form to each Tenant of such Development Property for all execution by such Tenant. Sellers shall deliver to CSCP each executed Tenant Estoppel(s) or Estoppel Certificate promptly following Sellers' receipt thereof. It shall be a condition precedent to CSCP's obligation to consummate the payment of money not exceeding $50,000 in the aggregate transactions contemplated by this Agreement with respect to such tenants a Development Property that CSCP shall receive Tenant Estoppel Certificates from (a) the anchor Tenants of each Development Property, including without limitation the Tenants set forth on EXHIBIT HH-2 attached hereto and made a part hereof and (yb) Seller elects Tenants under Leases covering more than four thousand (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser)4,000) square feet, at Seller's option each (but Seller shall have i) dated no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or earlier than thirty (30) days prior to the Closing Date, (ii) consistent with the terms of the Leases and the 39 representations and warranties of Sellers contained in this Agreement, and (iii) in form substantially similar to the Tenant Estoppel Certificate Form or in such other form as CSCP shall approve in the exercise of its reasonable judgment (the "Required Development Tenant Estoppels"). If, on or before the Scheduled Development Closing Date, such condition is not satisfied (or waived in writing by paying CSCP), then CSCP shall have the money right, exercisable by delivery of written notice to Seller, to remove the concerned Premises from the Premises being conveyed pursuant to this Agreement and receive a corresponding reduction in the Consideration. Either Sellers or CSCP shall have a one (1) time right to extend the Scheduled Development Closing Date for up to thirty (30) additional days if the conditions precedent to CSCP's obligation to close set forth in this Section 3 have not been satisfied prior to the Scheduled Development Closing Date (exercisable by delivery of written notice to the other parties hereto on or prior to the Scheduled Development Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same).
Appears in 1 contract
Samples: Contribution and Sale Agreement (Cedar Shopping Centers Inc)
Tenant Estoppel Certificates. (a) Seller agrees from shall make commercially reasonable efforts to obtain and deliver to Purchaser promptly after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effectby Seller, within five but not later than three (53) business days after being requested by Purchaser prior to do sothe Closing Date (the "ESTOPPEL RETURN DATE"), to deliver to tenant estoppel certificates from all tenants of under the Property a request for an estoppel certificate Leases substantially in the form of EXHIBIT D attached hereto, which hereto or such other form may be revised if so requested as is required or permitted by the Existing Lenderapplicable Lease; provided, Purchaser agrees to accept estoppel certificates from tenants which are governmental or quasi-governmental entities in the forms required by such tenants. The parties agree that, subject An executed tenant estoppel certificate in the form required or permitted by the preceding sentence is herein referred to as a "TENANT ESTOPPEL". Notwithstanding anything contained herein to the provisions of subparagraph (b) belowcontrary, it shall be a condition precedent to Purchaser's the obligation of Purchaser to close under consummate the transaction that is the subject of this Agreement that an estoppel certificate either substantially Seller deliver to Purchaser, on or before the Estoppel Return Date (i) Tenant Estoppels executed by each of the tenants denoted on EXHIBIT F as being "REQUIRED MAJOR TENANTS"; and (ii) Tenant Estoppels executed by each of the tenants denoted on EXHIBIT F as being "OTHER MAJOR TENANTS", provided, however, that in the form lieu of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered furnishing to Purchaser no later than five (5) business days before Closing a Tenant Estoppel from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor one or more of space (a "TENANT ESTOPPEL")the Other Major Tenants, Seller agrees to use good faith efforts to obtain such Tenant Estoppelsmay, provided howeverat Seller's sole option, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to PurchaserPurchaser a certificate as to the matters set forth in EXHIBIT D hereto (the foregoing condition being herein referred to as the "TENANT ESTOPPEL CONDITION"). If Seller is unable to satisfy the Tenant Estoppel Condition on or before the Estoppel Return Date, at then Purchaser may, not later than the Closing, its own certificate with respect elect (in a written notice directed to tenants occupying up to an additional 15% Seller) one of the rentable area of following: (1) to waive the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after ClosingTenant Estoppel Condition, or (b2) to extend the date Purchaser obtains an estoppel certificate from a tenant Closing Date for whom up to twenty-one (21) days to allow Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each more time to satisfy the Tenant Estoppel containing nonCondition. If Purchaser elects to extend the Closing Date pursuant to clause (2) of the preceding sentence and the Tenant Estoppel Condition is still not fulfilled on or before the expiration of the twenty-material exceptionsone (21) day extension period, qualifications then Purchaser may elect the option set forth in clause (1) of the preceding sentence or modifications Purchaser may elect to terminate this Agreement, in which event all of the Deposit shall be returned to Purchaser. The failure of Seller to obtain any Tenant Estoppel (or the refusal of Seller to correct any claimed default by landlord under a Lease) shall not be and shall not be deemed to be an acceptable estoppel certificate for purposes a breach of or default under this Section 7.4.5Agreement. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of Within five (5) business days after the date of delivery Effective Date, the parties shall agree on the information to Purchaser of be inserted into the form tenant estoppel certificate for each tenant under a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE")Lease, time being of the essence as to the giving of so that such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as certificates may be expressly provided for in this Agreementto said tenants. Notwithstanding the foregoing, Purchaser Seller shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such deliver each Tenant Estoppel to Purchaser), at Purchaser promptly following Seller's option (but receipt thereof. Seller shall have no obligation)obligation to amend any Lease or to provide any concession, service or payment, reimbursement or other consideration to cure the nonconforming matter set forth any tenant in such estoppel by either performing or causing connection with Seller's efforts to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameobtain Tenant Estoppels.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Tenant Estoppel Certificates. The Seller shall use its best efforts to obtain a Tenant Estoppel Certificate from each Tenant (aother than the Purchaser and GSA). If , notwithstanding Seller's best efforts, Seller is unable to obtain a Tenant Estoppel Certificate from each Tenant (other than the Purchaser and GSA), then Seller shall provide a Landlord Estoppel Certificate to Purchaser and Seller shall indemnify Purchaser with respect to such Landlord Estoppel Certificates in accordance with the provisions of SECTION 16.1(a). Each Tenant Estoppel Certificate shall be addressed to the Purchaser, shall be dated not more than thirty (30) days before the Closing Date, and shall conform in all material respects to the Seller's representation and warranty in SECTION 6.3(A) with respect to such Tenant and if any such Tenant Estoppel Certificate fails to so conform to the Seller's representation and warranty in SECTION 6.3(A), then Seller agrees from and after receipt shall use its best efforts to cure the cause of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree thatdiscrepancy, subject to the provisions Pre-Closing Failure Cap. No Tenant Estoppel Certificate for any Tenant shall disclose the existence of subparagraph (b) belowany material amendment, it shall be a condition to Purchasermodification or other document affecting the Tenant's obligation to close under this Agreement Lease that an estoppel certificate either substantially was not identified in the form of EXHIBIT D Lease Schedule or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior otherwise disclosed to the Closing Purchaser in writing on or before the Effective Date. For this purpose, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupyingan amendment, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least modification or other document affecting a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenantTenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications Lease shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In material if it (i) reduces the event a Tenant Estoppel contains a material exception Tenant's rent, grants rent or qualification other concessions or alleges a material default by Seller obliges the landlord to pay money or make improvements, (collectively, a "MATERIAL DEFAULT"), subject to ii) shortens or extends the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being term of the essence as to Lease, (iii) gives the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the Tenant a right to terminate this Agreement if Tenant Estoppel(sor extend the Lease, or (iv) allege Material Default(s) if (x) such Material Default(s) can limits the landlord's rights to occupy or lease other space in the Real Property. The Purchaser shall have received from GSA a Lease Status Report for the GSA Lease described in the Lease Schedule. The Lease Status Report shall be remedied by addressed to the performance of work costing Purchaser, shall be dated not more than $50,000 in the aggregate for all such Tenant Estoppel(sforty-five (45) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to days before the Closing Date, by paying and shall confirm the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price Seller's representations and warranties in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit SECTION 6.3(a) with respect to the sameGSA Lease.
Appears in 1 contract
Tenant Estoppel Certificates. (a) It is a condition precedent to Purchaser’s obligation to proceed to close hereunder that, not later than three Business Days before the Closing Date, Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 shall have received and provided this Agreement is to Purchaser tenant estoppels certificates executed by tenants satisfying the Required Estoppel Percentage, dated not more than 30 days prior to the originally scheduled Closing Date, in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate material respects in the form of EXHIBIT D attached heretoExhibit G (or, if a tenant’s Lease specifies or contemplates another form of tenant estoppel certificate, then such other specified or contemplated form) and which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially do not in the form of EXHIBIT D or in aggregate disclose any matter that would have a material adverse impact on the form required by a tenant's Lease, dated not earlier than ten (10) business days Property from and after Closing which Purchaser had no knowledge prior to the expiration of the Inspection Period and, if the matter can be cured with the payment of money, for which Seller is unwilling or unable to give Purchaser a credit in cash at Closing Date, be delivered in an amount reasonably acceptable to Purchaser no later than five (5) business days before Closing each, a “Tenant Estoppel”). Seller shall include in the estoppel certificate distributed to tenants the last sentence in Section 5 of Exhibit G and Section 13 of Exhibit G, but the deletion of either such provision shall not be a basis for Purchaser’s rejection of such estoppel certificate. As used herein, “Required Estoppel Percentage” means a Tenant Estoppel from tenants under (including the Leases occupying, in the aggregate, Major Tenants) occupying not less than 75% [***] of the rentable area of square feet in the PropertyImprovements leased to and occupied by tenants. As used herein, including all “Major Tenants” means [***], [***], [***] and any other tenants occupying leasing at least a full floor or more of space (a "TENANT ESTOPPEL"), [***] rentable square feet in the Improvements. Seller agrees to use good faith commercially reasonable efforts to obtain such a Tenant EstoppelsEstoppel from each tenant to which space in the Improvements is leased, provided however, but Seller shall not be obligated to pay tenants expend any funds in order connection with obtaining any such Tenant Estoppels, and the failure of Seller to do so. Notwithstanding the foregoing, if at Closing Seller delivers obtain any such Tenant Estoppels from shall not be a breach or default hereunder. Seller shall provide copies of all proposed tenant estoppel certificates to Purchaser, for Purchaser's review and reasonable approval pursuant to this Section 6.5, prior to delivery of any such proposed tenant estoppel certificate to any tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver Purchaser shall provide its consent or any objections to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an proposed tenant estoppel certificate from a within [***] after Purchaser’s receipt thereof, failing which such completed tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications estoppel certificates shall be deemed in an approved form. Seller shall deliver to be an acceptable Purchaser any and all tenant estoppel certificates received from tenants (including, without limitation, tenant marked drafts), whether or not such tenant estoppel certificates meet the requirements of this Section 6.5 and whether or not Seller intends to seek a revised or updated tenant estoppel certificate for purposes such tenant. Upon delivery of this Section 7.4.5. In any Tenant Estoppel, Seller shall be released from liability under Seller’s representations and warranties (including, without limitation, any updates of the event a same) related to the Lease addressed in such Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following extent that the information contained in such Tenant Estoppel confirms the accuracy of such representations and warranties. Notwithstanding anything herein to the contrary, if Seller is unable to provide Purchaser with Tenant Estoppels for the Required Estoppel Percentage of Tenant Estoppels in compliance with the provisions of this Section 7.4.5)6.5, Purchaser's sole and exclusive remedy either Purchaser or Seller shall be entitled (but shall not be obligated) to terminate adjourn the Closing for a period not to exceed [***]. If either Purchaser or Seller does not elect to adjourn the Closing, or if either does so elect but Seller is nevertheless unable to provide Purchaser with Tenant Estoppels for the Required Estoppel Percentage of Tenant Estoppels in compliance with the provisions of this Section 6.5, then Purchaser’s sole remedies and recourses shall be limited to either (A) waiving the requirement for the tenant estoppel certificate(s) in question and proceeding to Closing without reduction of the Purchase Price or (B) terminating this Agreement by delivering notice thereof immediate notification to Seller and Escrow Agent, in writing to Seller, on which event the earlier of five (5) business days after the date of delivery Xxxxxxx Money shall be immediately returned to Purchaser of a Tenant Estoppel alleging a Material Default or and the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party parties hereto shall have any obligation hereunder no further rights or obligations hereunder, other than as may be expressly provided for in those that by their terms survive the termination of this Agreement. Notwithstanding Purchaser may not object to any Tenant Estoppels unless the foregoingtenants disclose facts or circumstances that would have, in the aggregate, any material adverse impact on the Property from and after Closing which Purchaser shall not have had no knowledge prior to the right to terminate this Agreement expiration of the Inspection Period and, if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) the matter can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or cured with the payment of money not exceeding $50,000 in the aggregate with respect money, for which Seller is unwilling or unable to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting give Purchaser a credit against the Purchase Price in cash at Closing in an amount reasonably necessary acceptable to perform Purchaser. If Purchaser does not object to an executed Tenant Estoppel within [***] after its receipt thereof, then Purchaser will be deemed to have approved such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameTenant Estoppel.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Piedmont Office Realty Trust, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith commercially reasonable efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect on or before the date which is five (5) days prior to tenants occupying up to an additional 15% the expiration of the rentable area of Inspection Period, the Property (substantially written Major Tenant Estoppel Certificate in the form of attached hereto as EXHIBIT D or “H-1” executed by the Major Tenant and written Tenant Estoppel Certificates in the form required attached hereto as EXHIBIT “H-2” executed by a tenant's Lease, appropriately modified to reflect that they are certificates each tenant under the Leases other than the Major Tenant. The delivery of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and executed Major Tenant Estoppel Certificate in the statements of Seller contained therein shall survive form attached hereto as EXHIBIT “H-1” from the Closing until Major Tenant on or before the earlier of date which is five (a) one hundred and eighty (1805) days after Closingprior to the expiration of the Inspection Period, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed an express condition precedent to be an acceptable estoppel certificate for purposes of Purchaser’s obligation to Close the purchase and sale transaction under this Section 7.4.5Agreement. In the event a that Seller is unable to obtain and deliver to Purchaser the written Major Tenant Estoppel contains a material exception Certificate on or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to before the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of date which is five (5) business days after prior to the date expiration of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Inspection Period, the Closing Date (shall be extended by the "ESTOPPEL TERMINATION NOTICE"), time being number of days that delivery of the essence as Major Tenant Estoppel Certificate is delayed; provided, however, in the event that that Seller is unable to deliver the Major Tenant Estoppel Certificate prior to the giving expiration of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such terminationInspection Period, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (elect by written notice to Purchaser given simultaneously with Seller's , prior to the expiration of the Inspection Period, to (i) terminate this Agreement pursuant to Section 3.6 hereof, or (ii) extend the Inspection Period for the sole purpose of Seller’s delivery of such the Major Tenant Estoppel Certificate and such extended Inspection Period shall be extended until the date which is five (5) days after Seller’s delivery of the Major Tenant Estoppel Certificate. Subject to Purchaser)the condition that Seller deliver the Major Tenant Estoppel, at Seller's option delivery of executed Tenant Estoppel Certificates from the other tenants (but Seller other than the Major Tenant) shall have no obligation), be a condition of Closing only to cure the nonconforming matter extent set forth in such estoppel by either performing Section 6.1(c) hereof; and in no event shall the inability or causing failure of Seller to obtain and deliver said Tenant Estoppel Certificates (Seller having used commercially reasonable efforts as set forth above) be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by default of Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samehereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Mid-Horizon Value-Added Fund I LLC)
Tenant Estoppel Certificates. Purchaser’s obligations under this Agreement are further conditioned upon Purchaser receiving Conforming Tenant Estoppel Certificates, as hereinafter defined, not less than two (a2) Seller agrees business days prior to the Closing from: (i) Kanbay Incorporated; (ii) AHI International Corporation; and (iii) International Housewares Association (collectively defined as the “Major Tenants”); together with Conforming Tenant Estoppels from and after receipt such additional Tenants to cause the total of Conforming Tenant Estoppels to comprise at least seventy-five percent (75%) of the Assumption Approval space in the Improvements that is subject to Leases as set forth of the Closing Date (the “Leased Space”) (hereinafter collectively referred to as the “Minimum Required Estoppels”) addressed to Purchaser. In the event Seller is unable to obtain the Minimum Required Estoppels from a sufficient number of Tenants, other than the Major Tenants, then Seller may, but shall not be so obligated, substitute Conforming Landlord Estoppel Certificates, as hereinafter defined, for any Tenants leasing under the Leases for up to ten percent (10%) of the Leased Space. Such substituted Conforming Landlord Estoppel Certificates shall be counted for all purposes in Section 9.1 determining whether Seller has achieved the Minimum Required Estoppels. As used in this Agreement, the term “Conforming Tenant Estoppel Certificate” means: (i) any Tenant Estoppel Certificate that is dated within sixty (60) days of the Closing Date and provided this Agreement delivered to Purchaser in the form of said Exhibit L, which does not contain any modification or addition that is materially adverse to Purchaser, which does not reveal any default under the affected Lease or condition which with notice and the passage of time would constitute a default or which does not contain any matters that are inconsistent with such Tenant’s Lease; or (ii) any Tenant Estoppel Certificate that is dated within sixty (60) days of the Closing Date in full force a form containing the information which a tenant is required to address in an estoppel certificate as required by such tenant’s Lease, which does not contain any information or assertion that is materially adverse to Purchaser, which does not reveal any default under the affected Lease or condition which with notice and effectthe passage of time would constitute a default, or which does not contain any matters that are inconsistent with such Tenant’s Lease. A “Conforming Landlord Estoppel Certificate” means a certificate executed and delivered by Seller at the Closing which contains the same information with respect to any affected Leases as would the applicable Conforming Tenant Estoppel Certificate, and which does not contain any modification or addition that is materially adverse to Purchaser, which does not reveal any default under the affected Lease or condition which with notice and the passage of time would constitute a default, or which does not contain any matters that are inconsistent with such Tenant’s Lease. Any Tenant Estoppel Certificate which is not a Conforming Tenant Estoppel Certificate or a Conforming Landlord Estoppel Certificate, but which is not expressly disapproved by Purchaser in writing within five two (52) business days after being requested by Purchaser to do soreceipt thereof, will also constitute a Conforming Tenant Estoppel Certificate. If Seller fails to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject Minimum Required Estoppels at or prior to the provisions of subparagraph date that is two (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (102) business days prior to the Closing Date, be delivered then Purchaser shall have the right to Purchaser no later than five extend the Closing Date for an additional two (52) business days before Closing from tenants under for each day the Leases occupying, in the aggregate, not less than 75% delivery of the rentable area of Minimum Required Estoppels are delayed. If Seller fails to deliver the PropertyMinimum Required Estoppels by March 31, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL")2007, Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute Purchaser’s sole and deliver to Purchaser, at Closing, its own certificate exclusive remedy with respect to tenants occupying up such failure will be to an additional 15% terminate this Agreement, in which case the Exxxxxx Money will be refunded in full to Purchaser and thereupon this Agreement will be null and void and of no further force and effect whatsoever, except for the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes terms of this Section 7.4.5Agreement which expressly survive termination of this Agreement by Purchaser. In the event Seller delivers any Conforming Landlord Estoppel Certificates and later obtains a Tenant Conforming Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit Certificate with respect to the samesame Lease, then upon delivery of the Conforming Tenant Estoppel Certificate to Purchaser (whether before or after Closing), Seller will be automatically and fully released and discharged from any and all liability then or thereafter arising with respect to the Conforming Landlord Estoppel Certificate with respect to matters that are so covered by a Conforming Tenant Estoppel Certificate.
Appears in 1 contract
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, to submit within five (5) business days after being requested by the Effective Date hereof to each tenant or lessee under a Lease, an estoppel certificate, in form substantially in accordance with Exhibit B attached hereto (“Tenant Estoppel”). Seller shall promptly remit to Purchaser the executed Tenant Estoppels after Seller’s receipt of the same. Notwithstanding Section 7.1(k) of this Agreement, in the event that Seller is unable to do so, to obtain and deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph Purchaser two (b2) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Date fully executed Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or Exhibit B attached hereto from all tenants leasing space in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafterProperty, the "SELLER'S ESTOPPEL CERTIFICATE"Closing Date shall be automatically extended for a period of not more than thirty (30) days in order for Seller to obtain the necessary Tenant Estoppels by Seller giving written notice of such extension to Purchaser and the statements of Seller contained therein shall survive Escrow Holder at least two (2) days before the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel CertificateDate.
(b) The parties agree Seller agrees that each Tenant Estoppel containing upon the request of Purchaser prior to the expiration of the Inspection Period, Seller shall deliver to the tenants under the Leases at the Property the form of subordination, non-material exceptionsdisturbance and attornment agreement required by Purchaser’s lender (“SNDAs”) and shall request that the tenants execute and return the SNDAs prior to Closing; provided, qualifications or modifications however, that it shall not be deemed a condition to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In Closing that Seller deliver the event SNDAs and Seller’s failure to deliver the SNDAs shall in no instance constitute a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in under this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from shall endeavor to secure and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to Buyer by the Closing Date estoppel certificates for all tenants of Leases consistent with the Property a request for an estoppel certificate information in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either Rent Rolls and substantially in the form of EXHIBIT attached hereto as Exhibit D or such form as may be required under the applicable Leases, dated no earlier than the Effective Date, showing no material adverse matters not disclosed hereunder, will not have been modified in any substantive, adverse manner and shall not reflect any fact or statement that, if true, would result in the form required breach (in any material respect) of any representation, warranty, covenant or agreement of Seller hereunder (each, a “Conforming Tenant Estoppel”). Notwithstanding the above, Seller shall request an estoppel certificate from each tenant, and shall deliver to Buyer each duly executed estoppel certificate (“Tenant Estoppel Certificate”) received promptly after receipt of same. Further notwithstanding anything contained herein to the contrary, prior to Seller requesting an estoppel certificate from each tenant, Buyer shall have the right to review and point out any inconsistencies with the forms of leases or other property information provided to Buyer on the proposed estoppel certificates before they are sent by Seller to each tenant. If Buyer fails to provide comment to the proposed estoppel certificates within two (2) business days of Buyer’s receipt of such proposed estoppel certificates, Buyer shall be deemed to have approved the proposed estoppel certificates. Notwithstanding anything contained herein to the contrary, Buyer shall notify Seller within three (3) business days of receipt of a tenant's Leasecopy of any executed Tenant Estoppel Certificate of its approval or disapproval thereof, dated not earlier and the basis of such disapproval, if disapproved; the failure of Buyer to notify Seller within such three (3) business day period of its approval or disapproval of any executed Tenant Estoppel Certificate shall be deemed to be Buyer’s approval of the same. Buyer may terminate this Agreement upon two (2) business days written notice to Seller if, no less than ten three (103) business days prior to the Closing Date, be delivered Seller fails to Purchaser no later than five deliver to Buyer Conforming Tenant Estoppels (5) business days before Closing from or Tenant Estoppel Certificates approved or deemed approved by Buyer), executed by tenants under the Leases occupying, in the aggregate, not less than 75% covering at least eighty-five percent (85%) of the rentable area leased square footage of the Property, Real Property (including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% each of the rentable area of the PropertyMajor Tenants). As used herein, Seller may execute “Major Tenants” shall mean, individually and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT")(1) Xxxxx Xxxxxx Xxxxxxx LLP, subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (52) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminateXxxxxx Association Solutions, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s(3) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameXxxxxxx Xxxxx LLC.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
Tenant Estoppel Certificates. Receipt by Buyer prior to Closing of tenant estoppel certificates addressed to Buyer, executed by Tenants with respect to such Tenants’ Leases, and dated no earlier than sixty (60) days prior to Closing, representing at least seventy-five percent (75%) of the occupied rentable area of the Improvements, which shall include the Required Estoppels (defined below) (the “Required Estoppel Percentage”), substantially in the form attached hereto as Exhibit G (“Tenant Estoppel Certificates”); provided, however, that (a) Seller agrees from and after receipt if the form of the Assumption Approval as set forth Tenant Estoppel Certificate attached hereto requests information in Section 9.1 and provided addition to or different than that required to be given pursuant to a Tenant’s Lease, this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request condition will be satisfied for such Tenant if such Tenant executes an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject required pursuant to the provisions of subparagraph such Tenant’s Lease and (b) below, it shall be Buyer agrees to accept a condition “Seller Estoppel Certificate” (as hereinafter defined) in lieu of a Tenant Estoppel Certificate for up to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than (but no more than) ten percent (10%) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the occupied rentable area of the Property, including all tenants occupying at least a full floor or more of space Improvements (a "TENANT ESTOPPEL"), the “Seller agrees Estoppel Maximum”) in order to use good faith efforts to obtain such Tenant Estoppelsachieve the Required Estoppel Percentage, provided however, that Seller shall not be entitled to deliver Seller Estoppel Certificates in lieu of any of the Required Estoppels. “Required Estoppels” means Tenant Estoppel Certificates for the following Tenants: Command Logistics Services, Inc., Union Supply Company and Maran, Inc. The foregoing condition precedent to deliver Tenant Estoppel Certificates and/or Seller Estoppel Certificates (up to the Seller Estoppel Maximum) shall be referred to herein as the “Tenant Estoppel Condition.” Seller shall use reasonable efforts (but without obligation to incur any cost or expense or institute any legal action) to obtain and deliver such Tenant Estoppel Certificates. If any Tenant Estoppel Certificate includes material adverse disclosures that were not previously disclosed in the applicable Lease, this Agreement or any other document delivered to Buyer prior to the expiration of the Due Diligence Period (each, a “Noncomplying Tenant Estoppel Certificate”), then Buyer shall have the right to object to such Noncomplying Tenant Estoppel Certificate. If Buyer fails to deliver written notice to Seller setting forth Buyer’s objections to any Noncomplying Tenant Estoppel Certificate within two (2) business days after Buyer’s receipt thereof (which may be submitted to Buyer in either the form proposed to be executed by such Tenant or as executed by such Tenant, and which, notwithstanding Paragraph 20, may be delivered to Buyer via electronic mail), then Buyer shall be conclusively deemed to have approved such Noncomplying Tenant Estoppel Certificate. For any Tenant from whom Seller is unable to obtain such a Tenant Estoppel Certificate, Seller may, but shall not be obligated to, deliver to pay tenants Buyer and Buyer shall accept (up to the Seller Estoppel Maximum) a certificate from Seller with respect to such Tenant and such Tenant’s Lease (“Seller Estoppel Certificate”) stating as of the date delivered (1) to Seller’s actual knowledge, neither Seller nor the Tenant is in order default under the Lease except for the defaults specified in the Seller Estoppel Certificate, (2) the date through which base rent under the Lease has been paid, (3) the documents constituting the Lease and that, to do soSeller’s actual knowledge, the Lease is in full force and effect and has not been supplemented or amended except as set forth in such Lease documents, and (4) the amount of the security deposit held by Seller for such Tenant. Notwithstanding the foregoingIf, if at Closing after Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate Estoppel Certificate with respect to tenants occupying up a Tenant, Buyer receives a Tenant Estoppel Certificate executed by such Tenant, the Seller Estoppel Certificate with respect to an additional 15% such Tenant shall be of no force or effect and Seller shall have no liability or obligation to Buyer on account thereof. The provisions of this Agreement limiting the survival of Seller’s representations and warranties and limiting Buyer’s recovery on account of any breach thereof shall apply to the statements contained in all Seller Estoppel Certificates as if they were representations and warranties set forth in Paragraph 9(b) of this Agreement. If the Tenant Estoppel Condition has not been satisfied as of the rentable area date which is two (2) business days immediately preceding the “Scheduled Closing Date” (as hereinafter defined), then either Buyer or Seller may, by notice to the other party given on or before the date that is the Scheduled Closing Date (but only once during the term of this Agreement), elect to extend the Property Scheduled Closing Date for a period not to exceed thirty (substantially 30) days in order for Seller to continue its efforts to obtain the form of EXHIBIT D or necessary Tenant Estoppel Certificates, in which event the form required by a tenant's Lease, appropriately modified to reflect Scheduled Closing Date shall be the date that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until is the earlier of (ai) one hundred and eighty thirty (18030) days after Closing, or following the Scheduled Closing Date and (bii) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
three (b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (53) business days after following the date of delivery on which either party gives notice to Purchaser of a the other that the Tenant Estoppel alleging a Material Default Condition has been satisfied or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"waived in accordance with Paragraph 3(d), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rexford Industrial Realty, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees shall, at its sole cost and expense, use commercially reasonable efforts to obtain, from and after receipt each of the Assumption Approval as set forth in Section 9.1 Opia Restaurant and provided this Agreement is in full force and effectXxxxxxx Xxxx Tenants, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an written estoppel certificate statement in the form of EXHIBIT D attached hereto, which form may be revised if so requested by hereto as Exhibit “W” (the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease“Tenant Estoppels”), dated not no earlier than ten the date that is thirty (1030) business days prior to the Closing Date, be delivered Date that was scheduled at the time that the Tenant Estoppels were requested. If Seller is unable to Purchaser no later than five obtain all of the Tenant Estoppels by the Closing Date or if either of the Tenant Estoppels contain statements or information that is reasonably unacceptable to Buyer and Seller elects not to cure or cannot within a reasonable time (5not to exceed 10 Business Days after notice by Buyer thereof) business days before Closing from tenants under cure any of the Leases occupying, unacceptable information contained in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Buyer may elect to either (1) terminate this Agreement by giving written notice to Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers and Escrow Agent within two (2) Business Days of receipt of such Tenant Estoppels from tenants occupying at least 60% of Estoppel, in which event the rentable area of the PropertyDeposit shall be paid to Buyer, Seller may execute and deliver to Purchaserand, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafterthereafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein parties shall have no further rights or obligations hereunder except for those obligations which expressly survive the Closing until the earlier termination of (a) one hundred and eighty (180) days after Closingthis Agreement, or (b2) waive Seller’s obligation hereunder to deliver all of the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
Tenant Estoppels, and the Closing shall occur as herein provided without any reduction of or credit against the Purchase Price. If Buyer does not exercise its right to proceed under clause (b1) The parties agree that each Tenant Estoppel containing non-material exceptionsof the preceding sentence within the two (2) Business Day period mentioned therein, qualifications or modifications Buyer shall be deemed to have elected to proceed under clause (2) of the preceding sentence. Buyer acknowledges (i) that the Tenant Estoppel from Opia may list an obligation on behalf of the tenant to obtain certain permits to use its space and notices of default from Seller in connection therewith and (ii) that such information shall not be an acceptable estoppel certificate deemed to be reasonably unacceptable for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same3.6.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Apple REIT Eight, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from shall use commercially reasonable efforts to obtain and after receipt of deliver to Purchaser, on or before the Assumption Approval as set forth in Section 9.1 and provided this Agreement date which is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, “clean” Tenant Estoppel Certificates in the form attached hereto as Exhibit “H” or as may be delivered required by tenant’s lease, executed by each Tenant. The “clean” Tenant Estoppel Certificate shall not contain any material discrepancies from the Rent Roll, Leases, or Seller’s representations hereunder, nor, asserting a default by landlord under such Leases or assert a right to an abatement, counter-claim or offset by such tenant. Tenant Estoppel Certificates shall be dated no more than thirty (30) days prior to Closing. The delivery of the executed Tenant Estoppel Certificates pursuant to this Section 4.3(e) shall be an express condition precedent to Purchaser’s obligation to close the purchase and sale transaction under this Agreement. In the event that Seller is unable to obtain and deliver to Purchaser no later than the written Tenant Estoppel Certificates on or before the date which is five (5) business days before prior to the Closing from tenants under Date, the Leases occupying, in Seller may elect to extend the aggregate, Closing Date for a period not less than 75% to exceed ten (10) days for the sole purpose of Seller’s delivery of the rentable area Tenant Estoppel Certificates. In no event shall the inability or failure of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property Tenant Estoppel Certificates (substantially in the form of EXHIBIT D or in the form required by Seller having used commercially reasonable efforts as set forth above) be a tenant's Lease, appropriately modified to reflect that they are certificates default of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5hereunder. In the event a all of the tenants of the Property have not delivered Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject Certificates prior to the following provisions of this Section 7.4.5)extended Closing Date, Purchaser's ’s sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to before the extended Closing Date, receive back the Xxxxxxx Money and receive a reimbursement from Seller for its actual, out of pocket third party costs and expenses incurred by paying Purchaser in connection with this Agreement and its inspections of the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price Property in an amount reasonably necessary not to perform such work, as reasonably determined by Seller exceed Thirty Thousand and Purchaser, in which event Seller shall, at No/100 Dollars ($30,000.00) or before to waive the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samerequirement for any further Tenant Estoppel Certificates.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Fund Xiii L P)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it It shall be a condition precedent to Purchaser's Buyer’s obligation to close under this Agreement acquire the Properties hereunder that an Sellers obtain and deliver estoppel certificate either substantially in the form of EXHIBIT D or certificates (“Tenant Estoppel Certificates”), in the form required under Section 4.7.1 below, from (i) at the Eldorado Property: (A) Fabrication Technologies, Inc. (B) Solotech (USA), Inc. and (C) Specialty Color Corp., Inc., (ii) at the Cameron Property: (A) WorldPac, Inc., (B) Tellworks Communications, Inc., (C) Preferred Laminations, LLC, (D) Xxxxxx Xxxxxx, Inc. and (D) Sunbay Supplies LLC (the tenants identified in (i) and (ii) are collectively, the “Required Tenants”), (iii) tenants occupying at least seventy-five percent (75%) of the rentable square feet of the Eldorado Property, in the aggregate, actually rented to tenants of the Eldorado Property as of the Effective Date (the “Eldorado Estoppel Threshold”), and (iv) tenants occupying at least seventy percent (70%) of the rentable square feet of the Cameron Property, in the aggregate, actually rented to tenants of the Cameron Property as of the Effective Date (the “Cameron Estoppel Threshold”). The rentable square footage of space leased by a tenant's LeaseRequired Tenants shall be included in the calculation of the Eldorado Estoppel Threshold and the Cameron Estoppel Threshold, dated respectively, and the delivery of an estoppel certificate from the Required Tenants in accordance with the provisions of this Section 4.7 shall be applied towards the satisfaction of the Eldorado Estoppel Threshold and the Cameron Estoppel Threshold, respectively. If such condition is not earlier than ten satisfied (10or waived by Buyer), on or before 12:00 p.m. Pacific time on the date which is two (2) business days prior to the Closing Date (the “Estoppel Condition Deadline Date”), then (a) either Buyer or Sellers shall each have the right to extend the Estoppel Condition Deadline Date for up to fifteen (15) days after the scheduled Closing Date (the “Extended Estoppel Condition Deadline Date”) by providing written notice thereof to the other party on or before 3:00 p.m. Pacific time on the Estoppel Condition Deadline Date, be delivered in order to Purchaser no later than five allow Sellers sufficient time to satisfy this condition precedent to the Closing, and upon the timely satisfaction (5or waiver by Buyer) of such condition, the Closing shall occur two (2) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% after satisfaction of the rentable area of condition set forth in this Section 4.7 (the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"“Extended Closing Date”), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) if neither Buyer nor Sellers have timely elected to extend the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole Condition Deadline Date and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date as provided in (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Noticea) above, then subject to Seller's option set forth below, this Agreement Buyer shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if by written notice given prior to 5:00 p.m. Pacific time on the Estoppel Condition Deadline Date, in which case this Agreement shall terminate and Buyer shall be entitled to a refund of the Deposit (less the Independent Consideration, which shall be paid to Sellers), and no party hereto shall have any further obligation under this Agreement except under those provisions that expressly survive a termination of this Agreement.
4.7.1 The Tenant Estoppel(sEstoppel Certificates shall be substantially in (a) allege Material Default(sthe form required under the applicable tenant’s Lease (including specific limitations set forth in such Lease which limit the scope of the information required to be provided by such tenant in any Tenant Estoppel Certificate to be provided by such tenant), or (b) if (x) such Material Default(s) can the form estoppel certificate attached hereto as Exhibit D, modified, as applicable, to comply with any provisions in the applicable tenant’s Lease that pertain to estoppel certificates; provided, however, that the form may also be remedied the standard form generally used by the performance of work costing not more than $50,000 in applicable tenant so long as such standard form complies with the aggregate for all applicable tenant’s Lease; provided further, however, if Sellers receive from a tenant such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect standard form prior to such tenants tenant’s execution thereof, then Buyer shall have the right to reasonably approve of such form. In addition, any provisions of the estoppel certificate (or comparable certificate or statement) regarding defaults, defenses, disputes, environmental matters, claims, offsets, credits, abatements, concessions and recaptures against rent and other charges may be limited to the actual knowledge of a tenant. Buyer’s failure to object to a Tenant Estoppel Certificate (yor any information or provision therein) Seller elects (by written notice to Purchaser Sellers given simultaneously with Seller's delivery of such within three (3) days after Buyer’s receipt thereof (but not later than the Closing Date) shall be deemed to constitute Buyer’s acceptance and approval thereof. Notwithstanding anything to the contrary contained in this Agreement, Buyer may not object to (A) any matter adverse to the Properties, in any material respect, (B) any objectionable information or provision contained in a Tenant Estoppel Certificate or (C) any uncompleted obligations or defaults by landlord or tenant unless such obligations or defaults will be completed prior to PurchaserClosing or credited to Buyer at Closing, provided that in all instances described in clauses (A), at Seller's option (but Seller shall have no obligationB) or (C), to cure the nonconforming matter such matter, information or provision was (i) set forth in such estoppel by either performing the Leases, (ii) disclosed in the Due Diligence Materials, or causing (iii) actually known to be performed the work on or Buyer prior to the Closing Dateexpiration of the Due Diligence Period (as such knowledge is defined in Section 7.4.2 herein).
4.7.2 Sellers shall utilize commercially reasonable efforts to obtain the Tenant Estoppel Certificates. As used in this Agreement, by paying the money on “commercially reasonable efforts” shall not include any obligation to institute or prior threaten legal proceedings, to the Closing Datedeclare or threaten to declare any person in default, to incur any liabilities, to expend any monies or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect cause any other person to do any of the same.
Appears in 1 contract
Samples: Purchase Agreement (BLACK CREEK INDUSTRIAL REIT IV Inc.)
Tenant Estoppel Certificates. Receipt of estoppel certificates (a"Tenant Estoppel Certificates") Seller agrees dated not more than thirty (30) days prior to the Closing Date from a sufficient number of the tenants at the Property so that estoppel certificates shall be received with respect to not less than 80% of the gross leased area in the aggregate, covered by leases at the Property in effect as of the date hereof, and after which shall include estoppel certificates from the following tenants: Jacuzzi, Inc., Covance Clinical & Periapproval Services, Air Liquide, Maxis and Bxxxxx & Vxxxx (collectively, the "Required Tenants") and receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate from Seller in substantially the form of EXHIBIT D attached heretoas Exhibit "C-3" attached hereto (a "Seller Estoppel Certificate") with respect to such leases for which a Tenant Estoppel Certificate has not been issued (but not for the Required Tenants, which form may be revised if so requested by the Existing Lender. The parties agree thatwho must deliver their own Tenant Estoppel Certificates), subject to the provisions of subparagraph (b) below, it shall be is a condition precedent to PurchaserBuyer's obligation to close under this Agreement that an purchase the Property hereunder. The form of estoppel certificate either to be received from each tenant shall be substantially in the form of EXHIBIT D Exhibit "C- 1" attached hereto and made a part hereof or in the form previously delivered by the applicable tenant to Seller as set forth in Exhibit "C-2", provided, however, if the applicable tenant lease prescribes the required by a tenant's Leaseform of estoppel certificate, dated not earlier than ten then such required form shall be deemed acceptable. Buyer must object to Seller in writing within two (102) business days prior after Buyer's receipt of any estoppel certificate if Buyer claims that the form of any non-conforming estoppel certificate or any tenant or landlord lease defaults or inconsistencies to the Closing Datelist of leases described in any applicable estoppel certificate cause such certificate to be unacceptable for the purposes of this Paragraph 4(C) (and if such objection is not made within such time period, the non-conforming estoppel certificate shall be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% deemed disapproved for purposes of satisfaction of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"foregoing condition precedent), Seller agrees . Seller's sole obligation hereunder shall be to use good faith utilize reasonable efforts to obtain such Tenant EstoppelsEstoppel Certificates (such reasonable efforts obligation not including any obligation to institute legal proceedings or to expend any monies therefor, provided howeverother than for minor administrative charges, Seller shall not be obligated to pay whether imposed by tenants in order to do soor incurred by Seller). Notwithstanding If Tenant Estoppel Certificates are obtained after the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate Date with respect to tenants occupying up for which Seller shall have delivered a Seller Estoppel Certificate, such Tenant Estoppel Certificates shall replace Seller's Estoppel Certificates to an additional 15% of the rentable area of extent they are not inconsistent, and Seller shall not have any obligations or liabilities under Seller's Estoppel Certificates to the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect extent that they are certificates of so replaced. Buyer shall have the option to waive the condition precedent set forth herein by notice to Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall whereupon such condition will be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5satisfied). In the event a Tenant Estoppel contains a material exception that on or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or before the Closing Date such condition is not satisfied (the "ESTOPPEL TERMINATION NOTICE"or waived as aforesaid), time being the obligations of the essence as Seller to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Noticesell, then subject and Buyer to Seller's option set forth belowpurchase, this Agreement shall terminate, and upon such termination, Purchaser terminate whereupon the Deposit shall be entitled returned to Buyer and except for the return of the Deposit Note and all interest thereonSurviving Obligations, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameterminate.
Appears in 1 contract
Samples: Purchase Agreement (Carlyle Real Estate LTD Partnership Xv)
Tenant Estoppel Certificates. Receipt of estoppel certificates (“Tenant Estoppel Certificates”) from (i) the tenants (the “Required Tenants”) listed on Exhibit “F”, and (ii) a sufficient number of other tenants at the Property such that estoppel certificates shall have been received pursuant to clauses (i) and (ii) hereof with respect to not less than 70% of the total net rentable square footage of the Property covered by Leases in effect as of the Closing Date, in the form required under Section 4.4.1 (which do not disclose matters adverse to the Property, in any material respect, which are not set forth in the Leases), shall be a condition precedent to Buyer’s obligation to acquire the Property hereunder. If on or before the Closing Date such condition is not satisfied (or waived by Buyer), then this Agreement shall terminate and Buyer shall be entitled to a refund of the Escrow Deposit (and no party hereto shall have any further obligation under this Agreement except under those provisions that expressly survive a termination of this Agreement).
4.4.1 Each Tenant Estoppel Certificate shall be substantially in the applicable form attached to Exhibit “F” (or if Seller, after using commercially reasonable efforts to obtain certificates in such form, is unable to obtain the same, then in the form, if any, prescribed in the applicable Lease); provided, however, that with respect to a Lease with a regional or national tenant, the form may also be the standard form generally used by such tenant. In addition, any provisions of the applicable estoppel certificates respecting defaults, defenses, disputes, environmental matters, claims, offsets, credits, abatements, concessions and recaptures against rent and other charges may be limited to the actual knowledge of the applicable tenant.
4.4.2 Seller shall utilize commercially reasonable efforts (and, as used in this Agreement, commercially reasonable efforts shall not include any obligation to institute legal proceedings or to expend any monies) to obtain Tenant Estoppel Certificates from the tenant under each Lease.
4.4.3 Notwithstanding anything to the contrary herein, in the event Seller fails to obtain a Tenant Estoppel Certificate from any particular tenant under any Lease (after requesting the same):
(a) In the case of a Tenant Estoppel Certificate to be obtained from a Required Tenant (or in the case of any other tenant, if Seller agrees from and after receipt notifies Buyer that this Section 4.4.3 applies to such tenant), Seller may (but shall not be obligated to) give written notice (referencing this Section 4.4.3(a)) to Buyer stating that Seller has not obtained such Tenant Estoppel Certificate (together with a copy of the Assumption Approval as set forth certificate, if any, Seller has obtained from such Tenant), in Section 9.1 and provided which event Buyer may terminate this Agreement is in full force and effect, within by written notice to Seller at any time prior to the earlier to occur of the Closing Date or five (5) business days after being requested by Purchaser receipt of Seller’s notice (in which case the Escrow Deposit shall be returned to do soBuyer and no party hereto shall have any further obligation under this Agreement except under those provisions that expressly survive a termination of this Agreement) and if Buyer fails to terminate within such period, to deliver to all tenants Buyer shall be deemed (except for purposes of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph clause (b) below, it shall be ) to have received a Tenant Estoppel Certificate with respect to such Tenant for purposes of satisfying the condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in Section 4.4; and
(b) In the form case of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier Tenant Estoppel Certificate to be obtained from a tenant other than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL")Required Tenant, Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller may (but shall not be obligated to) deliver to pay tenants Buyer on the Closing Date a certificate (the “Seller Tenant Certificate”) in order the applicable form attached as Exhibit “F” executed by Seller, certifying that the information set forth in the Tenant Estoppel Certificate prepared for such tenant, to do so. Notwithstanding the foregoingSeller’s “knowledge” (as defined in Section 7.4), if at Closing Seller delivers is correct in all material respects, and in such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Propertyevent, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event have delivered a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate Certificate with respect to such tenants and tenant (yexcept in the case of a Required Tenant) for purposes of satisfying the condition under this Section 4.4. Any Seller elects (by written notice Tenant Certificate shall be subject to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter limitations set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller Section 7.3 and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameSection 10.2.
Appears in 1 contract
Tenant Estoppel Certificates. (a) Seller agrees from shall endeavor to secure and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser Buyer no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees prior to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"“Tenant Estoppel Deadline”), time being estoppel certificates (each, a “Tenant Estoppel Certificate”) for all Leases consistent with the information in the Rent Rolls and substantially in the form attached hereto as Exhibit D or such form as may be required under the applicable Leases. It shall be a condition precedent to Buyer’s Closing obligations that by the Tenant Estoppel Deadline, Buyer receives Tenant Estoppel Certificates from (i) Union Bank, Yoka & Xxxxx, and Regus (collectively, “Major Tenants”), and (ii) together with the Major Tenants, such additional tenants which occupy at least seventy-five percent (75%) of the essence as leased rental floor area of the Real Property and meeting the foregoing requirements (collectively, the “Required Estoppels”). Prior to distributing the Tenant Estoppel Certificates to tenants, Seller shall deliver to Buyer drafts of the completed Tenant Estoppel Certificates for Buyer’s review and approval, not to be unreasonably withheld. Buyer shall review such drafts and deliver to Seller any reasonably requested revisions thereto within two (2) business days after receipt thereof. Buyer’s failure to reasonably grant approval or provide reasonably requested revisions within two (2) business days of Seller’s delivery of the draft Tenant Estoppel Certificates shall be deemed approval by Buyer. Seller will provide Buyer with the executed Tenant Estoppel Certificates promptly upon receipt thereof by Seller. Buyer shall be deemed to have approved an executed Tenant Estoppel Certificate unless it notifies Seller in writing of its disapproval of the same within three (3) business days following its receipt of the same. If Buyer does not receive the Required Estoppels by the Tenant Estoppel Deadline, then either Seller or Buyer may elect to extend the Closing Date for up to fourteen (14) days to allow Seller to obtain the Required Estoppels by delivering written notice to the giving other party by 5:00 p.m. (California time) on the business day immediately following the Tenant Estoppel Deadline. If Buyer does not receive the Required Estoppels on or before the expiration of such notice. If Purchaser shall timely give the Estoppel Termination Noticefourteen (14) day extension period, then subject to Seller's option set forth belowif applicable, Buyer may either (i) terminate this Agreement shall terminatein writing delivered to Seller on or before the Closing Date, and upon such termination, Purchaser in which event the Deposit shall be entitled returned to the return of the Deposit Note and all interest thereon, Buyer and neither party shall have any obligation further obligations hereunder other than as may be those which expressly provided for in survive the Closing or earlier termination of this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against (ii) waive the Purchase Price in an amount reasonably necessary foregoing condition precedent and proceed to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
Tenant Estoppel Certificates. Purchaser shall have received, on or before the Closing Date, estoppel certificates in favor of Purchaser from tenants under Leases leasing in the aggregate seventy (a70%) Seller agrees from and after receipt percent of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants rentable area of the Property Improvements (excluding any space which is leased under a request for Purchaser Lease and/or the ISTC lease, or a lease with any other division of the State of Idaho) which are leased and occupied in substantially the form attached to the applicable Lease, or if there is not a form attached to a Lease, an estoppel certificate in substantially the form of EXHIBIT D Exhibit I attached heretohereto and made a part hereof, or otherwise reasonably approved by Purchaser, that does not disclose any material defaults or uncured obligations of Seller, as landlord, and does not contain any disclosures which are materially inconsistent with the representations and warranties of Seller set forth in this Agreement. Sixty (60) days in advance of the Closing Date, Seller shall request Estoppel Certificates from all the tenants under the Leases (excluding any Purchaser’s Leases). Seller shall use reasonable efforts to obtain estoppel certificates from each of such tenants; provided, however, Seller shall not be required to expend significant monies or make significant concessions or institute litigation in order to obtain such estoppel certificates. If Purchaser has not, by the scheduled Closing Date, received the estoppel certificates required by the first sentence of this Section 7(b)(iii), then Seller may, for any tenant, deliver a certificate of Seller in substantially the form attached hereto and made a part hereof as Exhibit J, which certificate shall be accepted by Purchaser in lieu of such estoppel certificates, provided however, Purchaser shall not be required to accept Seller certificates for more than twenty five (25%) percent of the leasable area of the Improvements for which certificates are required by the first sentence of this Section 7(b)(iii) before Purchaser is obligated to close. Seller may substitute for a certificate delivered by Seller a tenant estoppel certificate later received from a tenant under a Lease for which such certificate was given to the extent such certificate does not contain any statements that are materially and adversely different than those contained in Seller’s estoppel certificate. In exercising its reasonable discretion concerning the acceptability of a tenant estoppel letter on a form other than that prescribed by Exhibit J, Purchaser will accept an alternative form (including, in the case of any national or regional tenant, such tenant’s standard form estoppel certificate and, with respect to any tenant, the form prescribed by such tenant’s lease) which confirms the rental rate and lease commencement and termination dates and such other material information as is stated in the Lease in question and the performance of the parties to the lease (which may be revised if so requested by the Existing Lender. The parties agree that, subject limited to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially tenant’s knowledge in the form case of EXHIBIT D or in the form required landlord default and the condition of the leased premises). If Purchaser has not, by a tenant's Lease, dated not earlier than ten date which is four (104) business days prior to the scheduled Closing Date, be delivered to received the estoppel certificates contemplated by this Section 7(b)(iii), then Seller or Purchaser no later than five may, on the date which is four (54) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% advance of the rentable area of Closing, each on one occasion, extend the Property, including all tenants occupying at least a full floor or more of space Closing Date by up to thirty (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts 30) days to obtain such Tenant Estoppelsestoppel certificates, provided howeverand, in any case, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D breach or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes default of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectivelyAgreement because Purchaser has not received such estoppel certificates, a "MATERIAL DEFAULT")during which xxxx Xxxxxx shall use reasonable efforts to obtain such estoppel certificates, subject to the following provisions conditions and limitations set forth herein. If Seller fails to cause such estoppel certificates to be delivered to Purchaser on or before the last day of this Section 7.4.5)such thirty-day period, Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of then within five (5) business days after the date expiration of delivery such thirty day period, Purchaser shall elect to either (1) terminate this Agreement (other than the obligations of Purchaser set forth in Section 3(b) and the indemnity obligations of a Tenant Estoppel alleging a Material Default or Purchaser set forth in Section 13 of this Agreement, and any other obligations that specifically survive the Closing Date (termination hereof in accordance with the "ESTOPPEL TERMINATION NOTICE"terms of this Agreement, which obligations shall survive any such termination), time being in which case, within two (2) business days of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser the Xxxxxxx Money shall be entitled returned to Purchaser, provided Purchaser and Seller shall execute any document reasonably requested by the other party to evidence such termination, or (2) take title to the return Real Property without receiving the undelivered estoppel certificates without any reduction of the Deposit Note and all interest thereon, and neither party Purchase Price. Failure of Purchaser to notify Seller within the time limits prescribed herein shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(sconstitute an election under clause (1) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameabove.
Appears in 1 contract
Tenant Estoppel Certificates. On or before the date which is two (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (102) business days prior to the Closing Date (the "Estoppel Delivery Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Buyer shall have received an Estoppel Certificate either substantially in the form of Exhibit "E-1" attached hereto or in the form a tenant is required to deliver under its Lease (each, a "Tenant Estoppel Certificate") from (i) tenants leasing no less than the Estoppel Certificate Percentage, and (ii) seven (7) tenants leasing at least 9,000 rentable square feet at the Property (collectively, the "Estoppel Delivery Requirement"). Notwithstanding anything in the foregoing to the contrary, Seller, at its option, may deliver to Buyer a representation letter substantially in the form of Exhibit "E-2" attached hereto (each, a "Seller agrees Estoppel Certificate") with respect to use good faith efforts one or more Leases in lieu of a Tenant Estoppel Certificate. If Seller delivers one or more Seller Estoppel Certificates, Seller's liability under each Seller Estoppel Certificate shall expire and be of no further force or effect on the earlier of: (A) six (6) months following the Closing Date, or (B) the date that Buyer receives a Tenant Estoppel Certificate from the applicable tenant to obtain the extent such Tenant EstoppelsEstoppel Certificate confirms the matters set forth in the applicable Seller Estoppel Certificate. In addition, provided howeverSeller's liability under any Seller Estoppel Certificate shall not be subject to the limitations of Section 16.4 below. Notwithstanding anything in this Agreement to the contrary, (x) Seller shall not be obligated to pay tenants in order attempt to do soobtain an Estoppel Certificate from the tenant Clearwire Legacy, LLC, and (b) the premises currently leased to Clearwire Legacy, LLC shall not be considered "leased rentable square footage" for purposes of determining the Estoppel Certificate Percentage. Notwithstanding The Tenant Estoppel Certificates and the foregoingSeller Estoppel Certificates are sometimes collectively referred to herein as the "Estoppel Certificates". In the event Seller is unable to obtain Estoppel Certificates sufficient to satisfy the Estoppel Delivery Requirement by the Estoppel Delivery Date, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller Buyer may execute and deliver elect to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made i) subject to Seller's knowledge; hereinafterright to extend the Estoppel Delivery Date below, terminate the "SELLER'S ESTOPPEL CERTIFICATE"Agreement pursuant to Section 4.4, or (ii) waive such condition and the statements of Seller contained therein shall survive proceed to the Closing without credit, deduction or offset. To the extent that an Estoppel Certificate is a Non-Complying Estoppel Certificate (defined below), Buyer shall have until the earlier of (a) one hundred the Closing Date, and eighty (180b) four (4) business days after Closingreceipt of each such Non-Complying Estoppel Certificate, to approve or disapprove the applicable Estoppel Certificate so received (and the failure to timely do so shall constitute approval thereof). If a Non-Complying Estoppel is approved pursuant to the immediately preceding sentence, then such Estoppel Certificate shall count towards the Estoppel Delivery Requirement; however, if a Non-Complying Estoppel is disapproved pursuant to the immediately preceding sentence, then such Estoppel Certificate shall not count towards the Estoppel Delivery Requirement. A "Non-Complying Estoppel Certificate" shall be an Estoppel Certificate that discloses (a) any default or event of default under such Lease, or (b) any other material adverse economic terms of the date Purchaser obtains an estoppel certificate from a tenant for whom applicable Lease that were not disclosed to Buyer (whether in the applicable Lease, this Agreement or any other document delivered to Buyer) prior to the expiration of the Property Approval Period. Notwithstanding the foregoing, if Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each has not obtained sufficient Tenant Estoppel containing nonCertificates to satisfy the Estoppel Delivery Requirement by the Estoppel Delivery Date, Seller shall have the one-material exceptionstime right, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering written notice thereof in writing to SellerBuyer prior to 5:00 p.m. Pacific time on the Estoppel Delivery Date, on to extend the Estoppel Delivery Date until the earlier of five (5A) two (2) business days after the date of delivery by which Seller satisfies the Estoppel Delivery Requirement or (B) thirty (30) days after the then current Estoppel Delivery Date. The Closing Date shall also be extended to Purchaser of a Tenant be the date which is two (2) business days following the extended Estoppel alleging a Material Default or Delivery Date; provided, however, if the Closing Date is so extended and sufficient Estoppel Certificates have not yet been obtained by the extended Closing Date, then Buyer shall elect to proceed under (the "ESTOPPEL TERMINATION NOTICE"), time being i) or (ii) above. Seller shall not be required to deliver updates to any previously delivered Estoppel Certificates that are dated within thirty (30) days of the essence as to the giving of such noticeoriginal Closing Date. If Purchaser shall timely give Additionally, if after the Estoppel Termination NoticeDelivery Date Buyer disapproves a Non-Complying Estoppel pursuant to this Section 4.3.2 which causes the Estoppel Delivery Requirement to fail, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party Seller shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoingright, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by delivering written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel Buyer prior to Purchaser), at Seller's option (but Seller shall have no obligation)Closing, to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to extend the Closing in order to obtain sufficient Estoppel Certificates to satisfy the Estoppel Delivery Requirement until the earlier of (A) two (2) business days after the date by which Seller satisfies the Estoppel Delivery Requirement or (B) thirty (30) days after the Estoppel Delivery Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Assets Trust, L.P.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to shall deliver to all tenants at the Premises the form of estoppel certificate attached as Exhibit H promptly after full execution of this Agreement. Seller shall use (and shall cause its management company to use) reasonable efforts to deliver to Buyer such tenant estoppel certificates executed by such tenants on or before the expiration of the Property Review Period. If Seller fails to deliver the Qualifying Percentage (as defined below) of such executed certificates to Buyer on or before the expiration of the Review Period, then Buyer may terminate this Agreement upon written notice to Seller within three (3) Business Days following the expiration of the Review Period, unless (i) Seller, in its sole option, agrees to deliver to Buyer on the Date of Closing, a request for an Landlord's estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested as Exhibit I for Leases covering either net leasable area or base rent payable under the Leases in an amount sufficient to increase the net leasable area or base rent payable covered by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate (either substantially in the form of EXHIBIT D from tenants or in the form required by a tenant's Lease, dated not earlier than ten (10landlord) business days prior to the Closing Date, be delivered Qualifying Percentage and (ii) any matters set forth on Schedule 1 to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenantLandlord's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate do not materially and adversely vary (in Buyer's reasonable opinion) from a tenant for whom Seller information disclosed on the Rent Roll. If Buyer has delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be its written notice to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after or before the date of delivery specified herein and Seller elects not to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of deliver such notice. If Purchaser shall timely give the Estoppel Termination NoticeLandlord's certificate, then subject the Deposit shall be returned to Seller's option set forth belowBuyer, and this Agreement shall terminateterminate without recourse to any party hereto. If Buyer elects not to terminate this Agreement for such failure or Seller agrees to deliver such Landlord's certificate, Seller shall continue to use (and upon shall cause its management company to use) reasonable efforts to obtain any remaining certificates on or before the Date of Closing. Delivery of such terminationremaining tenant certificates, Purchaser however, shall not be entitled to the return a condition of the Deposit Note closing and all interest thereon, and neither party Buyer shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the no further right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) for failure to deliver such Material Default(s) can certificates. The scope of Landlord's certificate shall be remedied reduced by the performance amount of work costing not more than $50,000 in net leasable area or base rent payable represented by executed tenant estoppel certificates delivered between the aggregate for all such Tenant Estoppel(s) or expiration of the payment Review Period and the Date of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hancock John Realty Income Fund Ii Limited Partnership)
Tenant Estoppel Certificates. Sellers shall use commercially reasonable efforts to (a) Seller agrees from prepare, or cause to be prepared, and after receipt of the Assumption Approval as set forth in Section 9.1 deliver to Purchaser for review and provided this Agreement is in full force and effectapproval, within five (5) business days after being requested by Purchaser Business Days following the date hereof, the estoppel certificates in substantially the form of Exhibit D attached hereto (each, a “Tenant Estoppel Certificate”, and collectively, the “Tenant Estoppel Certificates”), and (b) remit, or cause to do sobe remitted, the Tenant Estoppel Certificates to deliver to all the tenants of the Property for signature within two (2) Business Days following Purchaser’s written notice to Sellers that Purchaser has approved the Tenant Estoppel Certificates (which notice shall set forth any required corrections). If Purchaser fails to notify Sellers of its approval of, or any changes to, the Tenant Estoppel Certificates it receives from Sellers for approval within two (2) Business Days following Purchaser’s receipt of the same, the applicable Seller may forward such Tenant Estoppel Certificates to the tenants without Purchaser’s prior approval. Subject to the further provisions of this Section 4.3, receipt of Tenant Estoppel Certificates substantially in the form prescribed above or as provided below (i) from the tenants identified on Exhibit C attached hereto and made a request part hereof (collectively, the “Required Tenants”), and (ii) a sufficient number of other tenants at the Property such that estoppel certificates shall have been received pursuant to clauses (i) and (ii) hereof with respect to not less than 80% of the total net rentable square footage of each individual Property covered by Leases (as hereinafter defined) in effect as of the Closing Date at such Property, (x) not disclosing the existence of any material uncured default under the leases referred to therein and (y) confirming the information contained in the Tenant Estoppel Certificate delivered to Purchaser for an estoppel certificate approval, shall be a condition precedent to Purchaser’s obligation to purchase the Property hereunder. Sellers shall promptly, following receipt of the same, deliver copies of the completed Tenant Estoppel Certificates to Purchaser. Sellers shall use commercially reasonable efforts (and, as used in this Agreement, commercially reasonable efforts shall not be deemed to include any obligation to institute legal proceedings, deliver notices of default or to expend any monies) to obtain executed Tenant Estoppel Certificates. Notwithstanding the foregoing, any Tenant Estoppel Certificate that is in the form, if any, prescribed in the applicable lease or other operative document or that is in any form which does not materially vary from the representations made in the form of EXHIBIT Tenant Estoppel Certificate in Exhibit D attached hereto(as modified to make the statement contained therein factually correct) shall be deemed to be a satisfactory Tenant Estoppel Certificate for all purposes under this Agreement, which form may be revised if so requested provided that such Tenant Estoppel Certificate does not disclose any material uncured default under the leases referred to therein and, to the extent required by the Existing Lenderterms of such tenant’s lease, confirms the information contained in the Tenant Estoppel Certificate delivered to Purchaser for approval. The parties agree thatEach Seller agrees that upon its receipt of a form subordination, subject non-disturbance and attornment agreement (an “SNDA”) from Purchaser or its lender, such Seller shall promptly send such SNDAs to the provisions of subparagraph its respective tenants, and shall use commercially reasonable efforts (b) belowand, it as used in this Agreement, commercially reasonable efforts shall not be a condition deemed to Purchaser's include any obligation to close under this Agreement that an estoppel certificate either substantially in institute legal proceedings, deliver notices of default or to expend any monies) to obtain the form of EXHIBIT D or in the form required SNDAs, signed by a tenant's Leasesuch tenants, dated not earlier than ten (10) business days prior to the Closing Date; provided, be delivered to however, that Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% acknowledges and agrees that receipt of any or all of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller SNDAs shall not be obligated a condition precedent to pay tenants in order Purchaser’s obligation to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of purchase the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Contract of Sale (KBS Real Estate Investment Trust III, Inc.)
Tenant Estoppel Certificates. Seller shall endeavor to secure and deliver to Buyer, no later than three (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (53) business days after being requested by Purchaser to do sobefore the Closing Date, to deliver to Tenant Estoppel Certificates from Tenants under all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing LenderLeases. The parties agree that, subject Tenant Estoppel Certificates shall be delivered to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated Tenants not earlier later than ten (10) business days prior after the Contract Date. Seller shall provide Buyer with copies of the Tenant Estoppels for Buyer’s review and comment before delivering the estoppels. Buyer’s obligation to close the transaction contemplated under this Agreement is subject to the condition that as of Closing: (i) estoppel certificates for American Tire Distributors, Inc. (the “Major Tenant”) be received; (ii) no material default or claim by landlord or tenant shall have arisen under any Lease that was not specifically disclosed in the Rent Roll or actually known to Buyer by the Inspection Date and (iii) between the Inspection Date and the Closing, no Major Tenant has (1) terminated, or given notice of intent to terminate, its Lease, (2) vacated, abandoned, or ceased operations, or (3) filed for voluntary bankruptcy or be subject to an involuntary bankruptcy proceeding. Notwithstanding anything to the contrary contained herein, the form of Tenant Estoppel Certificate on Exhibit H contains a joinder by any Guarantor of each Lease. In the event that a Tenant Estoppel Certificate is returned without the joinder signed by any Guarantor, this fact alone shall not be deemed to cause the Tenant Estoppel Certificate to be disqualified for purposes hereof, unless the Lease specifically requires the Tenant to obtain the Guarantor’s signature. If Seller is unable to obtain and deliver sufficient tenant estoppel certificates as required under this Section 9.2, or if the certificates received contain material information or omissions unacceptable to Buyer in its reasonable discretion and Buyer objects thereto by written notice to Seller within two (2) business days after receipt by Buyer of the objectionable estoppel, but in any event on or before the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), then Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall will not be obligated in default by reason thereof, and Seller may elect to pay tenants extend the Closing Date by up to thirty (30) days in order to do sosatisfy the requirement. Notwithstanding If Seller still cannot satisfy the foregoingrequirement at the end of such extended period, if at Closing then Buyer may, by written notice given to Seller delivers such Tenant Estoppels from tenants occupying at least 60% of before the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be elect to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of and receive a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being refund of the essence as to the giving of such noticeXxxxxxx Money or waive said condition. If Purchaser shall timely give the Estoppel Termination NoticeBuyer so elects to terminate this Agreement, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation further rights or obligations hereunder other than as may except those that expressly survive a termination hereof. If no such notice is delivered by Buyer, Buyer shall be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not deemed to have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) waived such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samecondition.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Income Trust Inc.)
Tenant Estoppel Certificates. Receipt of estoppel certificates (each, a “Tenant Estoppel Certificate”, and collectively, the “Tenant Estoppel Certificates”) from (a) Seller agrees from the tenants identified on Exhibit F attached hereto and after receipt made a part hereof (collectively, the “Required Tenants”), and (b) a sufficient number of other tenants occupying space at the Property such that estoppel certificates shall have been received pursuant to clauses (a) and (b) hereof with respect to not less than eighty percent (80%) of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants total net rentable square footage of the Property a request for an estoppel certificate covered by all Leases (excluding license agreements) in effect as of the form of EXHIBIT D attached heretoScheduled Closing Date, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition precedent to Purchaser's ’s obligation to close purchase the Property hereunder. Seller shall not be required to obtain Tenant Estoppel Certificates (or any other estoppel certificates) from any party occupying space at the Property under a license agreement. Seller shall use commercially reasonable efforts (and, as used in this Agreement that an estoppel certificate either Agreement, commercially reasonable efforts shall not be deemed to include any obligation to institute legal proceedings, deliver notices of default or to expend any monies) to obtain such Tenant Estoppel Certificates, which certificates shall be substantially in the form of EXHIBIT D attached hereto and made a part hereof as Exhibit G (or if Seller, after attempting to obtain certificates in such form, is unable to obtain the same, then in the form required by a tenant's Leaseform, dated not earlier than ten (10) business days prior to the Closing Dateif any, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, prescribed in the aggregate, applicable lease or other operative document). Although such Tenant is not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL")Required Tenant, Seller expressly agrees to use good faith commercially reasonable efforts to obtain such a Tenant EstoppelsEstoppel Certificate from the current tenant under that certain “Master Lease” by and between Seller and Atlantic Center Associates I (“ACA I”), provided howeverdated April 12, Seller shall not be obligated 1989, recorded April 12, 1989, in Deed Book 12413, Page 226, Office of the Clerk of the Superior Court of Fxxxxx County, Georgia (the “Garage Master Lease”). Obtaining a Tenant Estoppel Certificate with respect to pay tenants in order the Garage Master Lease is a condition precedent to do soPurchaser’s obligation to purchase the Property hereunder. Notwithstanding the foregoing, if at Closing Seller delivers such may, in compliance with its obligations hereunder, deliver a Tenant Estoppels from tenants occupying at least 60% of Estoppel Certificate in any form which contains substantially the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially same representations made in the form of EXHIBIT D Tenant Estoppel Certificate in Exhibit G. If any Tenant Estoppel Certificate identifies information under the applicable Lease not previously disclosed to Purchaser in writing, or discloses information in such Tenant Estoppel Certificate not substantially the same as the terms of the applicable Lease (as made available to Purchaser), Purchaser shall have the right to object to such Tenant Estoppel Certificate by submitting written notice of such objection (an “Estoppel Objection Notice”) to Seller (which Estoppel Objection Notice must specify Purchaser’s objection or objections in reasonable detail) within three (3) Business Days after receipt by Purchaser of the objectionable Tenant Estoppel Certificate (but in any event on or before the Closing Date). If Purchaser fails to timely submit an Estoppel Objection Notice to Seller with respect to any particular Tenant Estoppel Certificate, then such Tenant Estoppel Certificate shall be deemed to be acceptable to Purchaser. Purchaser shall have no right to object to any Tenant Estoppel Certificate in the event the applicable Tenant Estoppel Certificate contains the information required to be given by the tenant under the terms of the applicable lease or other operative document (as distinguished from the form of Tenant Estoppel Certificate attached hereto), provided the information contained in such Tenant Estoppel Certificate does not conflict with the terms of the Lease. Notwithstanding anything contained in this Agreement to the contrary, in the event Seller is unable to obtain a Tenant Estoppel Certificate from any particular tenant under any Lease (other than a Required Tenant), Seller shall have the right (but not the obligation) to deliver to Purchaser on the Closing Date a certificate (a “Seller’s Estoppel Certificate”) in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller attached hereto and made a part hereof as Exhibit H, executed by Seller, and in such event, Seller shall be deemed to have delivered a Tenant Estoppel Certificate with respect to such tenant for purposes of satisfying the condition under this Section 4.3 (and Purchaser shall have no right to terminate this Agreement pursuant to the terms of this Section 4.3). In addition, Seller shall be released from any liability with respect to such Seller's knowledge; hereinafter, ’s Estoppel Certificate upon the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier sooner to occur of (ai) one hundred and eighty (180) days after Closing, or following the Closing Date and (bii) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default Certificate executed by the tenant for which Seller has delivered such Seller’s Estoppel Certificate. The form Tenant Estoppel Certificates and Seller’s Estoppel Certificates shall reflect appropriate changes thereto for tenants who have not yet occupied the premises leased under their Leases and for Leases pursuant to which Seller has not yet completed the tenant improvement work required thereunder or fully funded the allowances due thereunder. If, on or before the date which is three (3) days prior to the Closing Date (the "ESTOPPEL TERMINATION NOTICE"as may be adjourned as set forth in Section 4.6 of this Agreement), time being Seller fails to submit to Purchaser the Tenant Estoppel Certificates required to meet the condition precedent to Purchaser’s obligation to purchase the Property set forth in the first sentence of this Section 4.3, then Purchaser’s sole option shall be to either (A) waive the delivery of the essence as applicable Tenant Estoppel Certificate(s) and proceed with the Closing, without any abatement or other adjustment in the Purchase Price, or (B) terminate this Agreement in which event the Deposit and all interest accrued thereon shall be returned to Purchaser and each of the giving parties hereto shall be relieved of such noticeall further obligations hereunder, except for any obligations which are expressly stated herein to survive the expiration or earlier termination of this Agreement. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right fails to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter as set forth in such estoppel by either performing or causing to be performed the work on or immediately preceding sentence prior to the Closing Date, by paying the money on or prior condition precedent to Purchaser’s obligation to purchase the Closing Date, or by granting Property set forth in the first sentence of this Section 4.3 shall be deemed to have been met and Purchaser a credit against the Purchase Price in an amount reasonably necessary shall be deemed to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before have elected to proceed with the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Contract of Sale (Hines Real Estate Investment Trust Inc)
Tenant Estoppel Certificates. (a) Seller agrees from shall make a reasonable effort to obtain and after receipt deliver to Buyer at or prior to the Closing a Tenant Estoppel Certificate mutually agreed to by Seller and Buyer with respect to each of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effectLeases, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested duly executed by the Existing Lender. The parties agree that, subject to the provisions of subparagraph Tenant thereunder and dated within ninety (b90) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business calendar days prior to the Closing Date. If, be delivered however, Seller is unable to Purchaser no later than five (5) business days before obtain and deliver to Buyer at or prior to the Closing from tenants under the Leases occupying, in the aggregate, not less than Tenant Estoppel Certificates with respect to at least 75% of the rentable gross leasable area subject to the category of Leases defined as being "Certificate Related Leases" below, or, at Seller's option, to deliver to Buyer on or before the Closing Date a certificate of Seller, addressing the items set forth in such of the Property, including all tenants occupying missing Tenant Estoppel Certificates which would have enabled Seller to meet the above standard of obtaining Tenant Estoppel Certificates with respect to at least a full floor or more seventy-five percent (75%) of space (a "TENANT ESTOPPEL"), the gross leasable area subject to Certificate Related Leases and in which Seller agrees to use good faith efforts to obtain such Tenant Estoppelsindemnify Buyer and hold Buyer harmless from any and all losses, provided howeverliabilities, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding claims, costs and expenses incurred by Buyer after the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% as a result of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements any knowingly false statement of Seller contained therein shall survive the Closing until the earlier in any such certificate of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser then Buyer shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(sAgreement, by giving Seller written notice of such termination, whereupon Escrow Agent shall return the Xxxxxxx Money, less $100 to be paid to Seller, to Buyer, and thereafter the parties shall have no further rights or obligations hereunder, except for those which expressly survive any such termination. As used herein, a "Certificate Related Lease" is any Lease which: (a) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not covers more than $50,000 in 2,000 square feet of space and (b) has a remaining primary term extending more than one year after the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate Closing Date. Any certificate given by Seller with respect to Certificate Related Leases shall survive the Closing in a period of six (6) months or such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such earlier date on which the applicable tenant shall deliver a Tenant Estoppel Certificate to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameBuyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Nylife Realty Income Partners I L P)
Tenant Estoppel Certificates. Receipt of estoppel certificates (a"Tenant Estoppel Certificates"), from a sufficient number of tenants at the Property so that, overall, on or before the Closing Date, Tenant Estoppel Certificates shall be received with respect to all of the tenants listed on Schedule 6 and 75% of the net rentable square feet of space covered by Leases in effect as of the Closing Date with Non-Major Tenants (being tenants that lease less than 5,000 net rentable square feet of space) Seller (the "Estoppel Threshold") shall be a condition precedent to Buyer's obligation to consummate the transactions contemplated in this Agreement. Each Tenant Estoppel Certificate shall contain no material adverse exceptions, qualifications or modifications with respect to the applicable Lease (it being understood that any change which affects the cash flow of the Property shall be deemed to be material). Each Tenant Estoppel Certificate shall be substantially in the appropriate form provided in Exhibit "D" attached hereto and made a part hereof or in a form otherwise acceptable to Buyer in its sole discretion. A Tenant Estoppel Certificate dated prior to the Effective Date shall not be deemed acceptable hereunder, unless the Tenant that previously has delivered such Tenant Estoppel Certificate provides a reaffirmation and update letter dated after the Effective Date in a form acceptable to Buyer in its sole discretion ("Reaffirmation and Update Letters"). Seller's sole obligation hereunder shall be to utilize commercially reasonable efforts to obtain a Tenant Estoppel Certificate or Reaffirmation and Update Letter, as applicable, from each tenant at the Property (such reasonable efforts obligations not including any obligation to institute legal proceedings or to expend monies therefor). Either party shall have the right to extend the Closing Date for up to ten business days in order to satisfy the condition set forth in this paragraph (such right being exercised by such party giving written notice to the other party not later than the Closing Date). Buyer hereby acknowledges and agrees from and after that, subject to Buyer's receipt of the Assumption Approval Reaffirmation and Update Letters referenced herein and Limited Estoppels (as hereinafter defined), Seller has previously satisfied the condition set forth in Section 9.1 this paragraph 5C. In this connection, each Reaffirmation and Update Letter shall be substantially in the appropriate form provided in Exhibit "D-2" attached hereto and made a part hereof or in a form otherwise acceptable to Buyer in its reasonable discretion; provided, however, that the Reaffirmation and Update Letter for each of Tara's Hallmark, Musicland, Lady Footlocker, Rand's Hallmark, Radio Shack, Afterthoughts Boutique, Naturalizer and Taco Bxxx shall be substantially in the appropriate form provided in Exhibit "D-3" attached hereto and made a part hereof or in a form otherwise acceptable to Buyer in its reasonable discretion. In the event that on or before the Closing Date the condition set forth in this Agreement paragraph 5C is not satisfied (or waived as aforesaid), Seller shall have the right to satisfy such condition by delivering a certificate of Seller ("SELLER ESTOPPEL UPDATE CERTIFICATE") with respect to each Tenant Lease for which no Reaffirmation and Update Letter is received. Any Seller Estoppel Update Certificate delivered by Seller hereunder shall be in full force substantially the same form as the Reaffirmation and effectUpdate Letter attached as Exhibit "D-2" hereto or Exhibit "D-3" hereto, within five as applicable, with appropriate changes to reflect the following: (1) that such certificate is being delivered by Seller rather than the tenant; (2) that such certificate is only pertaining to the period beginning on the date of the original Tenant Estoppel Certificate and ending on the date of the Closing Date; (3) that the certification with respect to paragraphs 3, 4 and 7 of the Tenant Estoppel Certificate will be limited to Seller's knowledge (as defined in this Agreement); (4) that the certification with respect to paragraphs 8, 11 and 12 of the Tenant Estoppel Certificate will be deleted and paragraph 10 of the Tenant Estoppel Certificate will be modified as necessary to reflect that it is being delivered by Seller and not the tenant in question; and (5) business days after being requested by Purchaser that Seller's obligation under such certificate shall be limited to do sothe Survival Period set forth in paragraph 8C of this Agreement and the limitations of liability set forth in Paragraph 10B(1) of this Agreement. To the extent that Seller delivers a Seller Estoppel Update Certificate with respect to a Tenant Lease pursuant to this paragraph 5C, then if Seller later receives a Reaffirmation and Update Letter with respect to such Tenant Lease, Seller shall have the right to deliver such Reaffirmation and Update Letter to all tenants Buyer and upon the delivery of such Reaffirmation and Update Letter to Buyer, Seller shall not have any liability with respect to any matter covered by such Seller Estoppel Update Certificate previously delivered to Buyer that also is covered by the Property a request for an estoppel certificate Reaffirmation and Update Letter delivered by the tenant in question. In addition, Seller shall use its reasonable efforts to obtain from Lxxxxx New York, Limited Express, Lane Bxxxxx, Victoria's Secret and Bath & Body Works, Tenant Estoppel Certificates in the form of EXHIBIT D Exhibit "D" attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D hereto or in a form otherwise acceptable to Buyer in its reasonable discretion (the form required by a tenant's Lease, dated "Limited Estoppels"). If Seller does not earlier than ten (10) business days receive the Limited Estoppels prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall have the right to satisfy this condition (if Buyer does not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE"waive this condition) and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing substitute estoppel certificates for the Limited Estoppels that are not delivered prior to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICESeller Limited Estoppels"), time being which Seller Limited Estoppels shall be in the form of Exhibit "D" hereof, modified in the essence as manner described herein with respect to the giving of such noticeSeller Estoppel Update Certificates. If Purchaser shall timely give Seller delivers a Seller Limited Estoppel as a substitute for a Limited Estoppel, and Seller later receives a Limited Estoppel from the Estoppel Termination Noticetenant in question, then subject to Seller's option set forth below, this Agreement Seller shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) deliver such Material Default(s) can be remedied by Limited Estoppel to Buyer and upon the performance delivery of work costing such Limited Estoppel to Buyer, Seller shall not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate have any liabilities with respect to such tenants and (y) any matter covered by the Seller elects (Limited Estoppel previously delivered to Buyer that also is covered by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant the Limited Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure delivered by the nonconforming matter set forth tenant in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samequestion.
Appears in 1 contract
Samples: Purchase Agreement (Carlyle Real Estate LTD Partnership Xiv /Il/)
Tenant Estoppel Certificates. (a) Seller agrees shall use commercially reasonable efforts to obtain estoppel certificates directly from each and after receipt every tenant of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing LenderProject. The parties agree that, subject to the provisions of subparagraph (b) below, it It shall be a condition to Purchaser's of Buyer’s obligation to close under this Agreement title hereunder that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than at least five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided howeverClosing, Seller shall have delivered executed and currently dated (no earlier than thirty (30) days prior to the scheduled Closing Date) estoppel certificates in material conformance with the form attached hereto as Exhibit 8.1(a)-Tenant Estoppel Certificate from (i) each Major Tenant (defined below), and (ii) from tenants whose leases together with the leases of the Major Tenants represent at least eighty-two and one half percent (82½ %) of the aggregate rental revenue of the Project determined on an annualized basis. Notwithstanding the immediately preceding sentence, Seller may deliver a Seller’s estoppel certificate (“Seller Estoppel”) in the form attached hereto as Exhibit 8.1(b)-Seller Estoppel Certificate for any tenant (other than any Major Tenant) not providing an estoppel certificate directly, provided that Seller Estoppels may not be obligated delivered for leases representing more than five percent (5%) of the aggregate rental revenue of the Project such that the sum of the amount of the aggregate rental revenue of the Project covered by estoppel certificates delivered by Tenants and covered by the Seller’s estoppels shall be at least equal to pay tenants eighty-two and one half percent (82½ %) of the aggregate rental revenue of the Project determined on an annualized basis, in order which case the required tenant estoppels will be deemed to do sohave been obtained. “Major Tenants” means each of the United States General Services Administration (“GSA”), Clear Channel Broadcasting, Xxxx Media, Young & Rubicam, Inc., United Health Services, and Motorola, Inc. Estoppel certificates received by Buyer shall be deemed acceptable unless Buyer objects to such estoppel certificate upon the earlier of: (i) five (5) business days of actual receipt or (ii) Closing. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains ’s lease provides for a different standard for an estoppel certificate from a tenant for whom certificate, delivery of an estoppel in compliance therewith by Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate compliance herewith with respect to such tenants tenant estoppel. Buyer further hereby agrees that knowledge qualifications by the tenant regarding landlord’s actions under subsections (g) and (yh) Seller elects (by written notice shall be deemed acceptable modifications to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such a tenant estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samecertificate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Parkway Properties Inc)
Tenant Estoppel Certificates. Seller shall endeavor to secure and deliver to Buyer, no later than three (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (53) business days after being requested by Purchaser to do sobefore the Closing Date, to deliver to Tenant Estoppel Certificates from Tenants under all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing LenderLeases. The parties agree that, subject Tenant Estoppel Certificates shall be delivered to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated Tenants not earlier later than ten (10) business days prior after the Contract Date. Seller shall provide Buyer with copies of the Tenant Estoppels for Buyer’s review and comment before delivering the estoppels. Buyer’s obligation to close the transaction contemplated under this Agreement is subject to the condition that as of Closing: (i) estoppel certificates for Tree of Life, LLC, Berlin Packaging, LLC and Stanpac USA LLC (each a Major Tenant and collectively, the “Major Tenants”) be received; (ii) except for Stanpac vacating its premises, no material default or claim by landlord or tenant shall have arisen under any Lease that was not specifically disclosed in the Rent Roll or actually known to Buyer by the Inspection Date (Stanpac USA LLC is in the process of vacating Building H, but the Lease shall remain in effect. Stanpac’s occupancy of Building H shall not be a condition of Closing and if vacating Stanpac’s space is a default under the Stanpac Lease, Buyer waives its right to terminate this Agreement after the Inspection Date solely as a result of said default) and (iii) between the Inspection Date and the Closing, no Major Tenant has (1) terminated, or given notice of intent to terminate, its Lease, (2) other than Stanpac USA LLC), vacated, abandoned, or ceased operations, or (3) filed for voluntary bankruptcy or be subject to an involuntary bankruptcy proceeding. Notwithstanding anything to the contrary contained herein, the form of Tenant Estoppel Certificate on Exhibit H contains a joinder by any Guarantor of each Lease. In the event that a Tenant Estoppel Certificate is returned without the joinder signed by any Guarantor, this fact alone shall not be deemed to cause the Tenant Estoppel Certificate to be disqualified for purposes hereof, unless the Lease specifically requires the Tenant to obtain the Guarantor’s signature. If Seller is unable to obtain and deliver sufficient tenant estoppel certificates as required under this Section 9.2, or if the certificates received contain material information or omissions unacceptable to Buyer in its reasonable discretion and Buyer objects thereto by written notice to Seller within two (2) business days after receipt by Buyer of the objectionable estoppel, but in any event on or before the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), then Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall will not be obligated in default by reason thereof, and Seller may elect to pay tenants extend the Closing Date by up to thirty (30) days in order to do sosatisfy the requirement. Notwithstanding If Seller still cannot satisfy the foregoingrequirement at the end of such extended period, if at Closing then Buyer may, by written notice given to Seller delivers such Tenant Estoppels from tenants occupying at least 60% of before the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be elect to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of and receive a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being refund of the essence as to the giving of such noticeXxxxxxx Money or waive said condition. If Purchaser shall timely give the Estoppel Termination NoticeBuyer so elects to terminate this Agreement, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation further rights or obligations hereunder other than as may except those that expressly survive a termination hereof. If no such notice is delivered by Buyer, Buyer shall be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not deemed to have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) waived such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samecondition.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Income Trust Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either Tenant Estoppel Certificates substantially in the form of EXHIBIT D Exhibit G (or, if a tenant’s Lease specifies or contemplates another form of tenant estoppel certificate, then such other specified or contemplated form) executed by (a) each of BAE Systems North America, L-3 Communications TMA Corporation, Northrop Grumman Corporation, Comptek Research, Inc., and Xxxx X. XxXxxxxx Associates (the “Major Tenants”) and (b) tenants (including the Major Tenants) occupying not less than eighty percent (80%) of the rentable square feet in the form required Improvements leased to tenants including the Major Tenants. Seller shall use commercially reasonable efforts to obtain, but shall not be obligated to expend any funds (other than copying, postage and related charges) in connection with obtaining any such tenant estoppel certificates, and the failure of Seller to obtain any such tenant estoppel certificates shall not be a breach or default hereunder. If, despite using commercially reasonable efforts, Seller is unable to obtain the tenant estoppel certificates referred to in this Section 7.3.7, then Purchaser’s sole remedies and recourses shall be limited to either (a) waiving the requirement for the tenant estoppel certificate(s) in question and proceeding to Closing without reduction of the Purchase Price or (b) terminating this Agreement by a tenant's Leasewritten notification to Seller at Closing, in which event this Agreement shall be terminated as provided for in Section 10.2. If Purchaser extends the Closing Date pursuant to either Section 7.1.1, Section 7.1.2 or Section 7.1.3, the tenant estoppel certificates obtained by Seller may be dated not earlier more than ten (10) business 30 days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"). In such event, Seller agrees to will use good faith reasonable efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding updated tenant estoppel certificates from the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% Tenants upon the request of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect but the failure to tenants occupying up to receive an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an updated tenant estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications any or modifications all Tenants shall not in any way be deemed to be an acceptable estoppel certificate for purposes a failure of this Section 7.4.5. In the event condition to close and will not give Purchaser a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) so long as Seller elects (by written notice has previously delivered to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameestoppels required under this Section 7.3.7.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Ii Inc)
Tenant Estoppel Certificates. (ai) Seller agrees from The Waisterisk Sellers shall diligently attempt to obtain and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached heretoTAR Purchasers, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (bnot later than ( ) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days Business Days prior to the Closing Date, be delivered an estoppel certificate from each tenant (and, as to Purchaser the Xxxxx Xxxx Property and the Big Sand Property, from each subtenant under the applicable Ground Lease), substantially in the form attached to such tenant’s Lease or substantially in the form attached hereto as Exhibit R, as modified to address specific issues raised by individual Leases, dated no later earlier than five ( ) days prior to Closing (5the “Tenant Estoppels”). As a condition to Closing, the Waisterisk Sellers shall deliver to the TAR Purchasers Tenant Estoppels (with all information contained therein reasonably acceptable to the TAR Purchasers) business days before Closing from all Anchor Tenants and from a sufficient number of Non-Anchor Tenants such that the TAR Purchasers shall receive Tenant Estoppels (with all information contained therein reasonably acceptable to the TAR Purchasers) from tenants under (including Anchor Tenants) leasing and occupying percent ( %) or more of the net rentable area of each Property.
(ii) Notwithstanding the terms of Section 6(a)(i) above, in the event the Waisterisk Sellers are not able to obtain Tenant Estoppels from tenants leasing and occupying percent ( %) or more of the net rentable area of any Property after reasonable efforts, then the applicable Waisterisk Seller shall have the right to cause the condition contained in this Section 6(a) to be satisfied by executing and delivering at Closing a seller’s estoppel certificate (a “Seller Estoppel”), in the form attached hereto as Exhibit S, dated as of the Closing Date, for Non-Anchor Tenant Leases occupyingaffecting, in the aggregate, not less than 75% up to percent ( %) of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive aggregate square footage demised on the Closing until Date at the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each particular Property under all Non-Anchor Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5Leases. In the event the applicable Waisterisk Sellers deliver such Seller Estoppels at Closing, then the condition contained in this Section 6(a) shall be satisfied, provided that the TAR Purchasers actually receive (A) Tenant Estoppels (satisfying the requirements set forth above) from all Anchor Tenants, and (B) Tenant Estoppels or Seller Estoppels (subject to the limitation on Seller Estoppels set forth above) from a sufficient number of Non-Anchor Tenants such that the TAR Purchasers actually receive Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT")Estoppels and, subject to the following provisions of this Section 7.4.5)limitation set forth above, Purchaser's sole Seller Estoppels, from tenants (including all Anchor Tenants) leasing and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5occupying percent ( %) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being more of the essence as to the giving net rentable area of such noticeProperty. If Purchaser shall timely give The Waisterisk Sellers acknowledge that the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller TAR Purchasers shall have no obligation), obligation to cure accept a Seller Estoppel for any Anchor Tenant Lease or for Non-Anchor Tenant Leases covering more than percent ( %) of the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work aggregate square footage demised under all Non-Anchor Tenant Leases at any Property on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Agreement for Purchase and Sale of Equity Interests
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier Not later than ten (10) business days after the mutual execution and delivery of this Agreement, Sellers shall request estoppel certificates (“Tenant Estoppel Certificates”) from each of the tenants occupying space at each Project Asset. It shall be a condition precedent to Purchaser’s obligation to purchase the Project Assets that Tenant Estoppel Certificates shall have been received with respect to not less than (i) one hundred percent (100%) of the total net rentable square footage of the Fremont Project Asset and (ii) eighty percent (80%) of the total net rentable square footage of the Pinole Point Project Asset, in each case covered by the Leases in effect at such Project Asset as of the Closing Date (collectively, the “Estoppel Threshold”), and that Tenant Estoppel Certificates have been received from the following tenants (the “Required Estoppels”): Super Micro Computer, Inc. (“Super M”), Xxxx Xxxxxxx, Inc. (“Xxxx R”), and Bio-Rad Laboratories, Inc. (collectively, the “Major Tenants”). Sellers shall use commercially reasonable efforts (and, as used in this Agreement with respect to Sellers’ efforts, commercially reasonable efforts shall not be deemed to include any obligation to institute legal proceedings, deliver notices of default or to expend any monies) to obtain such Tenant Estoppel Certificates, which certificates shall be (1) substantially in the form attached hereto as Exhibits B-1 through Exhibits B-5 for the following tenants, respectively, each as modified to make the statements contained therein factually correct: Broadline Medical Inc., International Delicacies, FBA Holdings, Inc., Xxxx X. and Super M, (2) in the form, if any, prescribed in the applicable Lease or other operative document for any other Tenants, and (3) except for the tenants included under subparagraph (A) or (B), in the form attached hereto as Exhibit B-6 in the event no form is proscribed in the Lease. All Tenant Estoppel Certificates shall be dated no more than thirty (30) days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Sellers may, in compliance with their obligations hereunder, deliver a Tenant Estoppels Estoppel Certificate in any form which does not materially vary from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially representations made in the form of EXHIBIT D or Tenant Estoppel Certificate in the form required by a tenant's Lease, appropriately Exhibit B-6 (as modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, make the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller statement contained therein shall survive factually correct). If any Tenant Estoppel Certificate discloses matters which (i) are materially adverse to the purchase of the Project Assets or (ii) are materially inconsistent with the Leases delivered to, or approved by, Purchaser, and such matters have not been disclosed to Purchaser prior to the expiration of the Due Diligence Period, and, in each case, are not cured or satisfied by Sellers prior to the Closing until the earlier of (a) one hundred and eighty (180) days after Closingwhich cure or satisfaction shall be acceptable to Purchaser in Purchaser’s reasonable discretion), or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each then such Tenant Estoppel containing non-material exceptionsCertificate shall not count towards the Estoppel Threshold. Prior to delivering the Tenant Estoppel Certificates to the tenants for execution, qualifications Sellers shall prepare and deliver the same to Purchaser for Purchaser’s reasonable approval. If Purchaser fails to notify Sellers in writing of Purchaser’s approval or modifications reasonable disapproval (with detailed proposed revisions that will be acceptable to Purchaser) of any Tenant Estoppel Certificate submitted by the Applicable Seller within three (3) Business Days after Purchaser’s receipt thereof, then Purchaser shall be deemed to be an acceptable estoppel certificate have approved the applicable Tenant Estoppel Certificates for purposes of this Section 7.4.5submittal to the applicable tenant. In the event Once a Tenant Estoppel contains Certificate has been executed by any tenant, Sellers shall submit such Tenant Estoppel Certificate to Purchaser for Purchaser’s approval. Tenant Estoppel Certificates received by Purchaser shall be deemed acceptable unless Purchaser objects to such Tenant Estoppel Certificate not later than three (3) Business Days following actual receipt. The failure of Sellers to satisfy the Estoppel Threshold and/or to deliver the Required Estoppels shall not be a material exception breach or qualification or alleges a material default by Seller Sellers under this Agreement, and shall only be a failure of a condition to closing for Purchaser’s benefit, in which event Purchaser’s sole recourse hereunder in the event of any such failure shall be, in Purchaser’s sole and absolute discretion, to either (collectively, a "MATERIAL DEFAULT"), subject i) waive some or all of the requirements regarding Tenant Estoppel Certificates and accept the Tenant Estoppel Certificates that have been delivered and proceed to the following provisions of this Section 7.4.5)Closing on the Scheduled Closing Date, Purchaser's sole and exclusive remedy shall be to or (ii) terminate this Agreement by delivering written notice thereof delivered to Sellers (in writing which event Escrowee shall return the Initial Deposit, and the Additional Deposit, to the extent deposited with Escrowee, to Purchaser and no party hereto shall have any further obligations in connection herewith except for the Surviving Obligations). Notwithstanding anything contained in this Agreement to the contrary, if Sellers are unable to obtain a Tenant Estoppel Certificate from any particular tenant under any Lease other than a Major Tenant, then the Applicable Seller shall have the right (but not the obligation) to deliver to Purchaser on the Closing Date a certificate (a “Seller’s Estoppel Certificate”) in the form attached hereto as Exhibit C, executed by the Applicable Seller, on and in such event, the earlier Applicable Seller shall be deemed to have delivered a Tenant Estoppel Certificate with respect to such tenant for purposes of five satisfying the condition under this Section 4.3. Sellers shall not have the right to deliver a Seller’s Estoppel Certificate in lieu of a Tenant Estoppel Certificate for any Major Tenant. The Applicable Seller shall be released from any liability with respect to such Seller’s Estoppel Certificate upon the sooner to occur of (5i) business days after nine (9) months following the Closing Date and (ii) the date of delivery to Purchaser of a Tenant Estoppel alleging Certificate executed by the tenant for which the Applicable Seller has delivered such Seller’s Estoppel Certificate. Promptly following Purchaser’s request, Sellers shall request Subordination, Non-Disturbance and Attornment Agreements (“SNDA5”) in a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being form provided by Purchaser from each of the essence as to Tenants occupying space at the giving of such noticeProject Assets. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller Sellers shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit other obligations with respect to the sameSNDAs; and the receipt of SNDAs shall not be a condition to Closing for Purchaser’s benefit under this Agreement.
Appears in 1 contract
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt subsequent to the expiration of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, Inspection Period to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D Exhibit F attached hereto, which form provided that such estoppel for any General Services Administration (“GSA”) tenant may be revised if so requested a “lease status statement” in the form currently utilized by the Existing LenderGSA. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's ’s obligation to close title under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D Exhibit F or in the form required by a tenant's Lease’s Lease (a “Tenant Estoppel”), dated not earlier than ten forty-five (1045) business days prior to the initially scheduled Closing Date, Date be delivered to Purchaser Purchaser, from tenants occupying in the aggregate not less than eighty percent (80%) of the occupied space in the Property, including (i) Northrop Grumman (both leases), and (ii) Xxxxxx, Wornom, Hatten, & Diamonstein (the “Major Tenants”), no later than five three (53) business days before Closing from tenants Closing. Such Tenant Estoppels shall not disclose the existence of any default under the Leases occupyingreferenced therein and shall contain information that is consistent with and confirms (i) the terms of the Leases, and (ii) the information contained in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Rent Roll delivered by Seller to Purchaser. Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants expend any funds in order to do so. Notwithstanding Seller agrees that upon the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% request of Purchaser following the expiration of the rentable area of the PropertyInspection Period, Seller may execute and shall deliver to Purchaser, at Closing, its own certificate with respect to the tenants occupying up to an additional 15% of under the rentable area of the Property (substantially in Leases the form of EXHIBIT D or in the form subordination, non-disturbance and attornment agreement required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE"Purchaser’s lender (“SNDAs”) and shall request that the statements of tenants execute and return the SNDAs prior to Closing; provided, however, that it shall not be a condition to Closing that Seller contained therein deliver to Purchaser the executed SNDAs and Seller’s failure to deliver the executed SNDAs to Purchaser shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from not constitute a tenant for whom default by Seller delivered a Seller's Estoppel Certificateunder this Agreement.
(b) The parties agree that each any Tenant Estoppel containing non-material exceptions, qualifications or modifications and otherwise complying with the requirements of Section 3.6(a) shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.53.6. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5“Material Default”), Purchaser's ’s sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five Seller no later than three (53) business days after the date of delivery prior to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"“Estoppel Termination Notice”), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereonDeposit, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreementthe Surviving Obligations. Notwithstanding the foregoing, If Purchaser shall not have given timely the Estoppel Termination Notice, time being of the essence as to the giving of such notice, Purchaser shall be deemed for all purposes to be satisfied with the form and substance of each Tenant Estoppel and shall have no further right to object thereto or to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by based on the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) response or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit lack thereof with respect to the sameTenant Estoppels.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
Tenant Estoppel Certificates. Tenant shall, without charge therefor, at any time and from time to time, within ten (10) business days after request from Landlord (but in no event more than two (2) times in any calendar year), execute, acknowledge and deliver to Landlord a written estoppel certificate (in form and contents reasonably requested by Landlord), certifying, to the best of Tenant’s actual knowledge, to Landlord and/or any mortgagee, assignee of a mortgagee, any master landlord or any purchaser of the Building or Demised Premises, or any other party designated by Landlord, as of the date of such estoppel certificate, as to all or such of the following matters as reasonably requested by Landlord, to the extent such matters then are the case (and if not, then stating all details to the contrary thereof), namely: (a) Seller agrees from that Tenant has accepted and after receipt is occupying the Demised Premises covered by this Lease; (b) that the Demised Premises have been completed as required by the terms of this Lease; (c) that the Assumption Approval as set forth in Section 9.1 and provided this Agreement Lease is in full force and effect, within five and that no known Events of Default now exist thereunder; (5d) business days after that this Lease constitutes the entire agreement between Landlord and Tenant and has not been modified; (e) that the Lease Rents are now being requested by Purchaser to do sopaid on a current basis, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements date to which any Rent has been paid in advance; (f) that Landlord has fulfilled all of Seller contained therein shall survive the Closing until the earlier its duties of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereoninducement nature, and neither party shall have any obligation hereunder other than as may be expressly provided for Landlord nor Tenant is in this Agreement. Notwithstanding an Event of Default under the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(sLease; (g) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 that in the aggregate for all such event the Tenant Estoppel(s) or receives written notice from Landlord’s mortgagee stating that a default has occurred under its deed of trust loan, and that the mortgagee requires payment of money not exceeding $50,000 in rent to it, then the aggregate with respect Tenant will thereafter remit all Rent payments as directed and to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter address set forth in such estoppel by either performing written notice; (h) that there are no off-sets or causing to be performed the work on credits against Rents, and Rents have not been prepaid more than thirty (30) days in advance; (i) that Tenant has received no notice of a prior assignment, or prior pledge of Rents, under this Lease; (j) details of any matters of which Tenant has knowledge or which Tenant claims, which are contrary to the Closing Datestatements contained in clauses (a) through (f) inclusive, (h) and (i) of this Paragraph; (k) the commencement and expiration dates of the then operative term hereof, and of any then exercised renewal terms; (l) such other matters concerning this Lease, the parties hereto and/or the Demised Premises as Landlord may reasonably request; and (m) that Tenant understands such Estoppel Certificate is being relied on by paying the money on mortgage lender or prior purchaser requesting same as an inducement to the Closing Date, its loan or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samepurchase.
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Tenant Estoppel Certificates. (a) Reasonably promptly after the ---------------------------- execution of this Agreement, Seller agrees shall send a written request to each Tenant in accordance with its Lease to furnish a tenant estoppel statement substantially in the form such Tenant is obligated to furnish to the landlord under its Lease, or if no such form is contained or specified in a Tenant's Lease or if a Tenant's Lease provides that the Tenant shall make additional statements beyond those specifically provided for in the Lease ("Optional Statements"), then substantially in the form annexed hereto as Schedule "L-1" (a "Tenant Estoppel Statement"). Seller shall deliver to Purchaser a copy of each executed Tenant Estoppel Statement thereafter received from and any Tenant after Seller's receipt of same. In no event shall Purchaser have any right to terminate this Agreement, except as otherwise expressly provided in this Section 10.4, nor shall Purchaser be entitled to a reduction of the Assumption Approval as set forth in Section 9.1 and provided Purchase Price nor shall Purchaser's obligations under this Agreement be otherwise affected in any manner on account of any statement or information contained in any Tenant Estoppel Statement.
(b) Seller shall be obligated to furnish to Purchaser, as a condition of Purchaser's obligation to close hereunder that Purchaser shall receive, at or before Closing, with respect to each "Required Tenant" (as such term is hereinafter defined), either (x) a Tenant Estoppel Statement, in full force and effect"Acceptable Form" (as such term is hereinafter defined), within five or (5y) business days after being requested by Purchaser to do sothe extent that a Tenant Estoppel Statement (whether or not in Acceptable Form) is not received from a Required Tenant (or is received but is incomplete), to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space Schedule "L-2" annexed hereto (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(bStatement") The parties agree that each executed by Seller. A Tenant Estoppel containing non-material exceptions, qualifications or modifications Statement obtained by Seller from any Required Tenant shall be deemed to be an acceptable estoppel certificate for purposes of in "Acceptable Form" if such Tenant Estoppel Statement is on the form required pursuant to this Section 7.4.510.4. Notwithstanding anything to the contrary contained herein, a Tenant Estoppel Statement shall not be required to contain any Optional Statements in order to be in "Acceptable Form."
(c) In the event a that Seller is unable to fulfill the condition set forth in Section 10.4(b) hereof by delivery of Tenant Estoppel contains a material exception Statements and/or one or qualification or alleges a material default by more Seller's Estoppel Statements, Seller (collectivelyshall have no liability to Purchaser on account thereof, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), and Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing and to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of receive a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being refund of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination NoticeDeposit, then subject to Seller's option set forth below, this Agreement shall terminatetogether with any accrued interest thereon, and upon such termination, Purchaser shall be entitled to the return termination of the Deposit Note and all interest thereon, and this Agreement neither party shall have any further obligation to the other party hereunder other than as may be except for those provisions of this Agreement which expressly provided for in survive the termination of this Agreement. Notwithstanding .
(d) As used herein, the foregoing, Purchaser term "Required Tenants" shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.mean:
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Tenant Estoppel Certificates. (a) Seller agrees from and after receipt to use its reasonable efforts to cause those tenants of the Assumption Approval as set forth in Section 9.1 Premises specifically identified on Exhibit "G" hereto and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, made a part hereof to deliver to all tenants of Buyer not later than the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days day prior to the Closing DateDate a written statement ("Tenant Estoppel Certificate") in substantially the form of, be delivered and as qualified by, the form of tenant estoppel certificate set forth on Exhibit "H" attached hereto and made a part hereof. Buyer agrees not to Purchaser no later than five object to (5i) business days before Closing any non-material (as determined in Buyer's reasonable judgment) qualifications or modifications which a tenant may make to the form of Tenant Estoppel Certificate and (ii) any modification to a Tenant Estoppel Certificate to conform it to the form of tenant estoppel the tenant is required to give under its lease. To the extent a Tenant Estoppel Certificate contains conflicting information from tenants under that contained on Exhibit "D" for that lease, Buyer shall have the Leases occupyingright either to give a Termination Notice in accordance with Section l9 (c) as if the Inspection Period had not ended or to waive such conflicting information, in the aggregate, not less than 75% without abatement of the rentable area of Purchase Price, whereupon, Exhibit "D" shall be deemed automatically modified to include such differing information. Buyer's obligations under this Agreement to complete Closing on the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Closing Date and pay the Purchase Price shall not be relieved if Seller agrees is unable to use good faith obtain any required Tenant Estoppel Certificate after using its reasonable efforts to obtain such Tenant Estoppels, provided however, it if Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser)instead, at Seller's option (but sole option, executes a Tenant Estoppel Certificate for such tenants, which shall have the substance and effect of an indemnity from Seller to Buyer from any claim by the tenant which would have been precluded by a Tenant Estoppel Certificate by the tenant in such form. If any such tenant does have a claim which would entitle it to set-off the amount of the claim against rent due under the lease and the amount of such claim is ascertainable, Seller shall have no obligation)the right, at its sole option, to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser give Buyer a credit against the cash portion of the Purchase Price in an the amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaserof the claim; and, in which event Seller shallsuch event, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect Buyer shall complete closing and take subject to the samesuch claim.
Appears in 1 contract
Samples: Agreement of Sale (Inland Monthly Income Fund Iii Inc)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within Not less than five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business calendar days prior to the Closing Date, be Seller shall have obtained and delivered to Purchaser no later than five Buyer duly executed estoppel certificates (5each, a "Tenant Estoppel Certificate") business days before Closing from tenants substantially in the form of EXHIBIT "9" attached hereto, or covering estoppel matters required under the Leases respective tenant's lease, made in favor of Buyer, which shall be dated no earlier than the Effective Date and which shall contain no Material Objection Matter (as defined below) from (a) the following tenants, to the extent that their leases have commenced and are still in effect as of Closing: (1) College of Intercultural Communications, Inc., and (2) Tissue Genesis, Inc., and (b) tenants occupying, in the aggregate, not less than 75% at least sixty percent (60%) of the rentable leased area under the remaining Tenant Leases (the "Tenant Estoppel Certificate Condition"). For purposes of this Section 6(a)(iii), "Material Objection Matter" shall mean any omission or statement in or modification to a Tenant Estoppel Certificate which indicates any of the Propertyfollowing: (A) that Seller is in default under a Tenant Lease, including all tenants occupying at least (B) that there is a full floor change in any material financial or more economic term of space a Tenant Lease such that the same is materially inconsistent with the information in the Tenant Lease materials as included among the Due Diligence Items, or (a "TENANT ESTOPPEL"C) any claims of right of first refusal, first offer, or rights of purchase not contained in the Tenant Lease. For each of the remaining Tenant Leases (Tenant Leases other than those described in clauses (a) and (b) above), Seller agrees shall have obtained and delivered to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to PurchaserBuyer, at Closing, its own either (i) a duly executed estoppel certificate with respect to tenants occupying up to an additional 15% dated no earlier than the Effective Date in the form of Exhibit "9" attached hereto, or covering estoppel matters required under the rentable area of the Property respective tenant's lease, or (substantially ii) City Center, LLC's written certificate (a "Seller Tenant Lease Certificate"), in the form of EXHIBIT D or in "10' attached hereto, certifying to Seller’s Knowledge, as to whether any material default then exists by City Center, LLC under the form required by a tenant's applicable Tenant Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains but not any other matter which would have been covered by an estoppel certificate if obtained from a tenant for whom Seller delivered a such tenant. The signed certificates described in this paragraph from such tenants or City Center, LLC, as the case may be, are referred to herein as the "Tenant Estoppels". Buyer acknowledges that Seller's Estoppel Certificate.
(b) The parties agree that each only obligation hereunder is to use commercially reasonable efforts to obtain the Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), Estoppels subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being terms of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminateTenant Leases, and upon such termination, Purchaser any failure of Seller to satisfy this condition prior to Closing shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in not constitute a default under this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Office Properties Trust, Inc.)
Tenant Estoppel Certificates. (a) On or before the Estoppel Delivery Deadline, Seller agrees shall deliver to Buyer a fully completed and executed estoppel certificate from and after receipt each of the Assumption Approval Tenants (each, a “Tenant Estoppel Certificate”), each of which shall be dated effective no earlier than thirty (30) Calendar Days prior to the Closing Date. Each Tenant Estoppel Certificate shall be duly executed by the applicable Tenant thereof and each guarantor of the applicable Lease, if any. Each Tenant Estoppel Certificate shall contain substantially the same terms and be in substantially the same form and substance as set forth the form of certificate attached hereto as Exhibit “I,” and incorporated by reference herein; provided, however, that if (i) a form of estoppel certificate is attached to or otherwise prescribed in Section 9.1 an applicable Lease, (ii) if the applicable Lease provides that a particular form of estoppel certificate be used; or (iii) the Tenant is a national tenant that customarily issues its own form of estoppel certificate, such form shall be deemed to be acceptable to Buyer (so long as, in the case of clause (i) only, it is accompanied by a Landlord Estoppel Certificate and, in the case of clause (ii) only, such form contains, at a minimum, the amount of rental payments, the square footage covered by the Lease, a statement as to such Tenant’s knowledge of any existing defaults, a statement that the Tenant has unconditionally accepted the leased premises and provided this Agreement commenced paying rent as of a specified date, a statement concerning the formula or methodology for calculating Tenant’s proportionate share of CAM, insurance, taxes and other reimbursements, the expiration date of the Lease, the existence of any renewal, expansion, or first refusal rights, the amount of any security deposit, a definitive list of any remaining obligations to be performed by the Landlord and commercially reasonable subordination, non-disturbance and attornment provisions). Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s right to review and approve or disapprove of all matters relating to the Leases (including the form of estoppels prescribed therein) during the Due Diligence Period In the event Seller is in full force able to obtain Tenant Estoppel Certificates from: (I) all of the Major Tenants; and effect(II) Tenants representing the Minimum Tenant Square Footage Requirement, within five (5) business days after being requested by Purchaser on or before the Estoppel Delivery Deadline, but Seller is not able to do soobtain Tenant Estoppel Certificates from all of the Tenants, to then Seller shall deliver to all tenants of Buyer, prior to the Property Estoppel Delivery Deadline, a request for an landlord estoppel certificate in the form of EXHIBIT D Exhibit “J,” attached heretohereto and incorporated herein by reference (each, a “Landlord Estoppel Certificate”), with respect to each Lease for which form may be revised a Tenant Estoppel Certificate has not been obtained in lieu of the Tenant Estoppel Certificate for such Lease. If Seller has not timely delivered a Tenant Estoppel Certificate from those Tenants representing the Minimum Tenant Square Footage Requirement, or alternatively, if so requested by Seller has timely delivered a Tenant Estoppel Certificate from those Tenants representing the Existing Lender. The parties agree thatMinimum Tenant Square Footage Requirement, subject but has not provided a Tenant Estoppel Certificate nor provided a Landlord Estoppel Certificate to Buyer with respect to any remaining Lease before the Estoppel Delivery Deadline, then the provisions of subparagraph (bSection 8.5(a) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificategovern.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Tenant Estoppel Certificates. (a) Seller agrees from shall endeavor to secure and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to Buyer by the Closing Date estoppel certificates for all tenants of Leases consistent with the Property a request for an estoppel certificate information in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either Rent Rolls and substantially in the form of EXHIBIT attached hereto as Exhibit D or in such form as may be required under the form required by a tenant's Leaseapplicable Leases. Buyer may terminate this Agreement upon two (2) business days written notice to Seller if, dated not earlier no less than ten three (103) business days prior to the Closing Date, Seller fails to deliver to Buyer estoppel certificates substantially in the form attached hereto as Exhibit D or such form as may be delivered to Purchaser no later than five required under any particular Lease (5“Tenant Estoppel Certificates”), executed by (i) business days before Closing from all tenants under Leases leasing 15,000 rentable square feet or more of the Real Property, and (ii) the remaining tenants under the Leases occupying, in the aggregate, not less than 75% so that all of the Estoppel Certificates cover at least seventy-five percent (75%) of the leased rentable floor area of the PropertyReal Property and meeting the requirements set forth in this section, including all with no changes other than de minimus changes reasonably approved by Buyer and not disclosing the existence of any default under the Leases referenced to therein or any information inconsistent with the Rent Rolls (collectively, the “Tenant Estoppel Condition”). Seller shall prepare, or cause to be prepared, and deliver to Buyer for review and approval, no later than one (1) Business Day after the expiration of the Due Diligence Period, the estoppel certificates Seller intends to deliver to the tenants occupying at least a full floor or more of space based on the form attached hereto as Exhibit D (a "TENANT ESTOPPEL"the “Prepared Estoppels”), and Seller agrees shall remit, or cause to use good faith efforts be remitted, the Prepared Estoppels to obtain such Tenant Estoppelsall the tenants of the Property for signature within one (1) Business Day following Buyer’s notice to Seller that Buyer has approved the Prepared Estoppels (which notice shall set forth any required corrections). If Buyer fails to notify Seller of its approval of, provided howeveror any changes to, the Prepared Estoppels it receives from Seller for approval within two (2) Business Days following Buyer’s receipt of the same, Seller shall not be obligated forward such Prepared Estoppels to pay all the tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially without Buyer’s prior approval. Seller will provide Buyer with any proposed changes to the Tenant Estoppel Certificates and the executed Tenant Estoppel Certificates promptly upon receipt thereof by Seller for Buyer’s review and approval, which approval shall not be unreasonably withheld, conditioned, or delayed and shall be deemed given if Buyer fails to respond within five days after Buyer’s receipt of the Tenant Estoppel Certificate in question. Seller agrees that upon the request of Buyer, Seller shall deliver to tenants of the Property the form of EXHIBIT D or in the form subordination, non-disturbance and attornment agreement required by Buyer’s lender (“SNDAs”) as completed by Buyer or its lender and shall request that such tenants execute and return the SNDAs prior to Closing; provided, however, that it shall not be a tenant's Lease, appropriately modified condition to reflect Closing that they are certificates of Seller deliver to Buyer the executed SNDAs and made Seller’s failure to Seller's knowledge; hereinafter, deliver the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein executed SNDAs to Buyer shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from not constitute a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in under this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
Tenant Estoppel Certificates. Receipt of estoppel certificates (a"Tenant Estoppel Certificates") Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier more than ten (10) business 60 days prior to the Closing DateDate from (i) the anchor tenants listed on Exhibit "C" attached hereto and made a part hereof (the "Anchor Tenants"), be delivered to Purchaser no later than five (5ii) business days before Closing from the tenants under the Leases occupying, in the aggregatemall shop premises at the Property listed on Exhibit "D" attached hereto and made a part hereof (the "Required Tenants"), and (iii) from a sufficient number of the balance of the tenants in the mall shop premises at the Property having lease terms in excess of one (1) year so that estoppel certificates from such tenants shall be received with respect to not less than 75% of the net rentable area square feet of space covered by leases in the mall shop premises at the Property having lease terms in excess of one (1) year in effect as of the Propertydate hereof, including is a condition precedent to Buyer's obligation to purchase the Property hereunder. Each Tenant Estoppel Certificate shall be substantially in the form of Exhibit "E-1" attached hereto and made a part hereof or in form otherwise reasonably acceptable to Buyer; provided, however, that (a) in order to help resolve the "Outstanding Due Diligence Issues" (as defined below) listed on Exhibit "M-1" attached hereto and made a part hereof, Buyer and Seller shall, within five (5) days after the Effective Date, reasonably agree on modifications to the form of the Tenant Estoppel Certificate that will be delivered to each Anchor Tenant, and (b) if the applicable Tenant Estoppel Certificate received from any major national tenant is substantially in the standard form otherwise required by such tenant or in the form prescribed by the Lease for such tenant, then such form of Tenant Estoppel Certificate shall be deemed acceptable to Buyer provided that: (i) such Tenant Estoppel Certificate is consistent with the terms and provisions of the applicable Lease heretofore provided by Seller to Buyer and confirms that to such tenant's knowledge, there does not exist any default by either the landlord or the tenant thereunder, and (ii) Buyer is satisfied with respect to all tenants occupying at least a Outstanding Due Diligence Issues as provided under this Agreement. In addition, those provisions of the applicable estoppel certificates respecting defaults, defenses, disputes, claims, offsets, abatements, concessions and recaptures against rent or other charges may be limited to the knowledge of the applicable tenant. A Tenant Estoppel Certificate, whether or not in the form of Exhibit "E-1", will be deemed reasonably acceptable to Buyer if such certificate contains the following information: such certificate confirms that the fixed monthly rent, security deposit and termination date for such tenant are as set forth in the applicable Leases listed on Exhibit "I" for such tenant; that no rent has been paid more than one month in advance; that the lease is in full floor force and effect and has not been amended or more modified except for amendments and modifications listed in such letter and listed on Exhibit "I"; that the tenant has no right of space (a "TENANT ESTOPPEL"), Seller agrees extension other than as set forth in the lease; and that all work to use good faith be performed by Landlord has been performed and that the tenant has no knowledge of any landlord default. Seller's sole obligation hereunder shall be to utilize reasonable efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay Estoppel Certificates from all tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in such reasonable efforts obligation not including any obligation to institute legal proceedings or to expend any monies therefor, other than for minor administrative charges, whether imposed by tenants or incurred by Seller). Buyer shall have the form of EXHIBIT D or in option to waive the form required condition precedent set forth herein by a tenant's Lease, appropriately modified notice to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall whereupon such condition will be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"satisfied), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to before the Closing Date, such tenant estoppel condition set forth in this paragraph 4.E is not satisfied (or waived as aforesaid), the obligations of Seller to sell, and Buyer to purchase, the Property hereunder shall terminate. Seller hereby acknowledges that Buyer's determination of whether information or omissions contained in any Tenant Estoppel Certificate are unacceptable will be reasonable if such information or omissions are inconsistent with the provisions of the applicable Lease and relate to rent or other key provisions of such Lease which have an economic effect or if such information indicates that landlord is in material default of such Lease. In this connection, Seller shall promptly deliver to Buyer the originals of any Tenant Estoppel Certificates received by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameSeller.
Appears in 1 contract
Tenant Estoppel Certificates. Seller shall endeavor to secure and deliver to Buyer, no later than three (3) business days before the Closing Date, Tenant Estoppel Certificates from Tenants representing a minimum of seventy-seven percent (77%) of the total leased square footage under all Leases. Buyer’s obligation to close the transaction contemplated under this Agreement is subject to the condition that as of Closing: (i) estoppel certificates for (a) Seller each Major Tenant (defined below), (b) either Bunzl Distribution Midcentral, Inc. (“Bunzl”) or BoundTree Medical, LLC (“BoundTree”), (c) Flextronics in which Flextronics acknowledges and agrees that the premises under the Flextronics Lease has been, or is being, removed from the PILOT Program (as defined in the Flextronics Lease) and after receipt the PILOT Lease (as defined in the Flextronics Lease), has been, or is being, terminated due to a reason other than (i) a Landlord Default Event (as defined in the Flextronics Lease) or (ii) an Option Exercise (as defined in the Flextronics Lease) that occurred prior to the occurrence of any Permitted Option Exercise Event and that, as of the Assumption Approval date of the estoppel certificate, Flextronics has received no notice and has no knowledge of any additional tax liability or recapture payments related to real estate taxes with respect to its premises (including any “Post-Termination Recapture Payments” as defined in the Flextronics Lease) as a result of the termination of the PILOT Lease, the removal of its premises from the PILOT Program or otherwise, and (d) such other tenants who, together with the Major Tenants and Bunzl or BoundTree, as applicable, occupy at least seventy-seven percent (77%) of the total leased square footage under all of the Leases, be received; (ii) no material default or claim by landlord or tenant shall have arisen under any Lease that was not specifically disclosed in the Rent Roll or actually known to Buyer by the Inspection Date and (iii) between the Inspection Date and the Closing, no Major Tenant has (1) terminated, or given notice of intent to terminate, its Lease, (2) vacated, abandoned, or ceased operations, or (3) filed for voluntary bankruptcy or be subject to an involuntary bankruptcy proceeding; provided, however, that, notwithstanding anything in this Agreement to the contrary, in the event of the occurrence of an item set forth in Section 9.1 and provided subsections (iii)(1), (iii)(2) or (iii)(3) above with respect to any Major Tenant(s), Buyer shall have the right (at its option) to terminate this Agreement is with respect to each Building and all Property related to such Building (the “Excluded Property”) subject to Leases with such Major Tenant(s), in which event (x) the Excluded Property shall be excluded from this transaction and Buyer shall have no further obligations with respect to same, (y) the Purchase Price shall be reduced by the dollar amount allocated to the Excluded Property under Section 4.1, and (z) the portion of the Xxxxxxx Money attributable to the Excluded Property shall be returned to Buyer by Escrow Agent, but this Agreement shall otherwise remain in full force and effecteffect with respect to the balance of the Property. The Xxxxxxx Money attributable to the Excluded Property shall be determined by multiplying the Xxxxxxx Money by a fraction, the numerator of which is the dollar amount allocated to the Excluded Property under Section 4.1 and the denominator of which is the Purchase Price. Notwithstanding anything to the contrary contained herein, the form of Tenant Estoppel Certificate on Exhibit H contains a joinder by any Guarantor of each Lease. In the event that a Tenant Estoppel Certificate is returned without the joinder signed by any Guarantor, this fact alone shall not be deemed to cause the Tenant Estoppel Certificate to be disqualified for purposes hereof, unless the Lease specifically requires the Tenant to obtain the Guarantor’s signature. As of the Contract Date, the Major Tenants are the following (each a Major Tenant and collectively, the “Major Tenants”): (i) Ozark Automotive Distributors, Inc. (SouthPoint F); (ii) Xxxx Warehousing, Inc. (Westfork A5); (iii) Global Experience Specialists, Inc. (Westfork A5); (iv) Lincoln Electric Company (Bolingbrook III); (v) Vistar Corporation (Bolingbrook III); (vi) Dal-Tile Distribution, Inc. (Bolingbrook Dal-Tile); (vii) JBS Transportation Inc./JBS Logistics, Inc. (Prairie Point III); (viii) Petco Animal Supplies Stores, Inc. (Rock Run VI); (ix) Xxxxxx Don & Company (Miramar B); (x) Priority Fulfillment Services, Inc. (Airways E); (xi) Stylecraft Home Collection, Inc. (Airways E); (xii) Flextronics Logistics USA, Inc. (Chickasaw M); and (xiii) GRM Information Services of Atlanta, LLC (Westfork C4). If Seller is unable to obtain and deliver sufficient tenant estoppel certificates as required under this Section 9.2, or if the certificates received contain material information or omissions unacceptable to Buyer in its reasonable discretion and Buyer objects thereto by written notice to Seller within five two (52) business days after being requested receipt by Purchaser to do so, to deliver to all tenants Buyer of the Property a request for an estoppel certificate objectionable estoppel, but in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D any event on or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to before the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), then Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall will not be obligated in default by reason thereof, and either Seller or Buyer may elect to pay tenants extend the Closing Date by up to thirty (30) days in order to do soprovide Seller with additional time to satisfy the requirement. Notwithstanding If Seller still cannot satisfy the foregoingrequirement at the end of such extended period, if at Closing then Buyer may, by written notice given to Seller delivers such Tenant Estoppels from tenants occupying at least 60% of before the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be elect to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of and receive a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being refund of the essence as to Xxxxxxx Money, less the giving of such noticeIndependent Consideration, or waive said condition. If Purchaser shall timely give the Estoppel Termination NoticeBuyer so elects to terminate this Agreement, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation further rights or obligations hereunder other than as may except those that expressly survive a termination hereof. If no such notice is delivered by Buyer, Buyer shall be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not deemed to have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) waived such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samecondition.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Income Trust Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within At least five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered Seller shall cause tenants of one hundred percent (100%), by area, of the leased space in the Property (with the exception of Purchaser) under Leases and New Leases to furnish to Purchaser no later than five a signed estoppel certificate (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a hereinafter called "TENANT ESTOPPELEstoppel Certificate"), confirming the following information with respect to its Lease: (a) the date, time, amount of rent payable, and renewal options (if any) available under the Lease; (b) that the tenant is in occupancy and that the Lease is in full force and effect and has not been modified or amended, except as expressly noted therein; (c) that all obligations of the lessor of an inducement nature under the Lease have been performed to the tenant's satisfaction; (d) that, to the best of the tenant's knowledge, no defaults exist under the terms of the Lease; and (e) that the person signing said Estoppel Certificate has full power and authority to do so and to bind the tenant thereby, or otherwise in the form, if any, which said tenant is required to deliver by the provisions of its Lease. Seller agrees to use make a diligent, good faith efforts effort to obtain said Estoppel Certificates. If Seller is unable to obtain such Tenant Estoppelsan Estoppel Certificate from any tenant, provided howeverSeller, at its option, may, in lieu thereof, prepare such an Estoppel Certificate for said tenant and certify to Purchaser that, to the best of Seller's knowledge, the same is true, correct and complete in all respects. Such an Estoppel Certificate, so certified by Seller, shall be equivalent to such an Estoppel Certificate signed by the tenant for all purposes hereof, unless Purchaser thereafter receives such an Estoppel Certificate from the tenant, in which event said latter Estoppel Certificate shall supersede the former in all respects. If any such Estoppel Certificate is inconsistent with the Rent Roll in any material respect, or if it indicates that Seller is in default or has not performed some duty of an inducement nature under the Lease described therein, Seller shall have the right, but not be obligated the obligation, on or before the Closing Date, to pay tenants resolve said inconsistency, to cure said default and/or to perform said obligation. If Seller does so resolve, cure or perform the same, Purchaser shall purchase this Property in order accordance with the terms hereof. If Seller fails to do so. Notwithstanding so obtain or certify such Estoppel Certificates, to resolve any such inconsistency, to cure any such default or to perform any such obligation, on or before the foregoingClosing Date, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% Purchaser may, by written notice to Seller, elect either (i) to purchase the Property anyway, in accordance with the provisions hereof, without any reduction or abatement of the rentable area of Purchase Price, notwithstanding said failure, and without any continuing obligation upon Seller to obtain, certify, resolve, cure or perform the Propertysame, Seller may execute or (ii) to, as its sole and deliver exclusive remedy therefor, terminate this Agreement by written notice to Seller, in which event all Earnest Money (and all interxxx xxxned thereon) shall be paid to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications this Agreement shall be deemed to be an acceptable estoppel certificate for purposes null, void, terminated and of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception no further force or qualification or alleges a material default by Seller (collectivelyeffect, a "MATERIAL DEFAULT"), subject except as herein to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such noticecontrary expressly provided. If Purchaser shall timely give the Estoppel Termination Notice, then subject fails to Seller's so elect either said option set forth below, this Agreement shall terminate, and upon such termination(i) or said option (ii), Purchaser shall be entitled deemed to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's elected said option (but Seller shall have no obligationi), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Tenant Estoppel Certificates. Seller and Purchaser acknowledge that, prior to the Effective Date hereof, Seller has provided to Purchaser, and Purchaser has reviewed and approved, the forms of the tenant estoppels (the “Tenant Estoppel Certificates”), which are in substantially the same form received by Seller at the time it purchased the Property, certified to Purchaser and its lender. After the Effective Date, Seller shall promptly deliver the Tenant Estoppel Certificates to all of the tenants at the Property. Purchaser’s obligations under this Agreement are conditioned upon Purchaser receiving Conforming Tenant Estoppel Certificates (as defined below) dated no more than thirty (30) days prior to Closing from tenants Sxxxxxx Xxxx, Nuveen and Barack Fxxxxxxxxx (the “Major Tenants”), plus such other tenants that, taken together with the Major Tenants, occupy seventy-five percent (75%) of the leased space at the Property (collectively, the “Minimum Required Estoppels”). In addition, Seller shall use commercially reasonable efforts to obtain and deliver to Purchaser a Conforming Tenant Estoppel Certificate from each tenant at the Property, provided that delivery of a Conforming Tenant Estoppel Certificate from tenants in excess of the Minimum Required Estoppels shall not be a condition to Closing. As used in this Agreement, the term “Conforming Tenant Estoppel Certificate” means any Tenant Estoppel Certificate that is delivered to Purchaser in the form approved by Purchaser pursuant to this Section 8.3 (or (a) Seller agrees from if a tenant’s Lease specifies another form of tenant estoppel certificate, then such other specified form, or (b) if a tenant’s Lease requires less information than that contained the approved form, then a Tenant Estoppel Certificate containing only the information required in such tenant’s Lease), which does not contain any modification or addition that is materially adverse to Purchaser and after receipt which does not reveal any default under the affected lease, any condition which with notice and the passage of time would constitute a default under the Assumption Approval as affected lease, or a material adverse discrepancy between the information set forth in Section 9.1 and provided this Agreement or the Information Documents, including the Leases. Any Tenant Estoppel Certificate which is not a Conforming Tenant Estoppel Certificate, but which is not expressly disapproved by Purchaser in full force and effect, writing within five (5) business days after being requested of receipt thereof by Purchaser to do soPurchaser, will also constitute a Conforming Tenant Estoppel Certificate. In the event that Seller is unable to deliver to all the Minimum Required Estoppels, Seller may, at its option, deliver a seller estoppel in substantially the form attached hereto as Exhibit R (each, a “Seller Estoppel”) for any one or more tenants of Seller’s choosing in order to achieve the Property a request for an estoppel certificate in the form of EXHIBIT D attached heretorequired threshold; provided, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated permitted to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing deliver a Seller delivers such Tenant Estoppels from tenants occupying at least 60% Estoppel for any of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5Major Tenants. In the event that Seller provides one or more Seller Estoppels, each such estoppel will become null and void and of no further force and effect if, at any time after the delivery of such Seller Estoppel, Seller receives and delivers to Purchaser either (y) a Conforming Tenant Estoppel contains a material exception Certificate for said tenant or qualification (z) Conforming Tenant Estoppel Certificates for any other tenants which result in Seller meeting its seventy-five percent (75%) Minimum Required Estoppels threshold. In the event that Seller fails to deliver on or alleges a material default by before Closing (i) the Minimum Required Estoppels and (ii) substitute Seller Estoppels for one or more tenants (collectivelyother than Major Tenants) in order to achieve such required threshold, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), then Purchaser's ’s sole and exclusive remedy shall with respect to such failure will be to terminate this Agreement, in which case the Exxxxxx Money will be refunded in full to Purchaser and thereupon this Agreement will be null and void and of no further force and effect whatsoever, except for the terms of this Agreement which expressly survive termination of this Agreement by delivering notice thereof in writing to SellerPurchaser; provided, on however, Seller may condition the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being refund of the essence as Exxxxxx Money upon the execution and delivery by Purchaser to Seller of an instrument in recordable form that disclaims any and all continuing right, title and interest in and to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminateProperty, and upon such termination, Purchaser shall be entitled the delivery to the return Seller of the Deposit Note reports and all interest thereon, studies referred to in Section 4.4 and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied survey obtained by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hines Real Estate Investment Trust Inc)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt Section 10.3 of the Assumption Approval Agreement of Sale is deleted and is replaced with the following: “Prior to the Closing Date, Seller shall furnish to Purchaser an estoppel certificate (dated not more than fifteen (15) days prior to Closing) completed by each Tenant on the form attached hereto and incorporated herein as Exhibit C (the “Tenant Estoppels”), or such other form as may be expressly permitted under the terms of any Tenant’s Lease. Seller shall use its best efforts to obtain and deliver the Tenant Estoppels. Tenant Estoppels shall only be acceptable and delivered in satisfaction of this Section 10.3 if there has been no material deviation, in Purchaser’s sole judgment, from the applicable form required hereunder and the information set forth in Section 9.1 and each such Tenant Estoppel is consistent with the information provided this Agreement is to Purchaser in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants connection with Purchaser’s inspection of the Property a request for an estoppel certificate in Property. Notwithstanding the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) belowforegoing, it shall be a condition to Purchaser's obligation to close under Closing that all of the following requirements are satisfied: (i) Seller obtains Tenant Estoppels which satisfy the provisions of this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than Section 10.3 from at least five (5) business days before Closing of the following seven (7) tenants at the Property: BAX Global (Building 1), Expeditors International (Building 6), Federal Express (Building 13), Wxxxxxxxx American (Building 15), Almar International (Building 16), Arrowmail (Building 17) and Great Spring Water (Perrier Building); and (ii) Seller obtains Tenant Estoppels which satisfy the provisions of this Section 10.3 from tenants under such other Tenants as are necessary to obtain, together with the Leases occupyingTenant Estoppels identified in clause (i) above, Tenant Estoppels from Tenants which in the aggregate, not less than 75% aggregate occupy at least sixty-five percent (65%) of the rentable area of all improvements constituting the PropertyProperty excluding Building 4; and (iii) Seller deliver to Purchaser an estoppel certificate executed by Seller (the “Seller Estoppels”) with respect to the balance of the Leases for which an acceptable Tenant Estoppel is not received, including all tenants occupying at least a full floor or more which Seller Estoppels shall be in form and substance similar to the form of space Tenant Estoppel attached hereto as Exhibit C. Notwithstanding any of the foregoing to the contrary, in the event Seller fails to satisfy the requirements set forth in clauses (a "TENANT ESTOPPEL")i) and (ii) above, Seller agrees Purchaser shall have the right to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants extend the Closing in order to do sopermit Seller to satisfy such requirements, but in no event beyond December 15, 2003. Notwithstanding the foregoing, if at Seller shall continue to use reasonable efforts after Closing Seller delivers such to deliver any missing Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant Estoppel for whom which Seller delivered a Seller's Seller Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5hereunder. In the event that a Tenant provides Purchaser with a Tenant Estoppel contains for which Seller has given Purchaser a material exception or qualification or alleges a material default by Seller (collectivelyEstoppel, a "MATERIAL DEFAULT")Purchaser shall retain and rely on such Tenant Estoppel, subject to and the following provisions Seller Estoppel given for such Lease will be of this Section 7.4.5), Purchaser's sole no further force and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days effect from and after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of on which such Tenant Estoppel is delivered to Purchaser), at Seller's option (but Seller shall have no obligation), only to cure the nonconforming matter set forth extent that such Tenant Estoppel confirms the statements made in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameEstoppel.”
Appears in 1 contract
Samples: Purchase and Sale Agreement (Keystone Property Trust)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note Xxxxxxx Money and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreementthe Surviving Obligations. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Midlantic Office Trust, Inc.)
Tenant Estoppel Certificates. Buyer shall have ---------------------------- received and approved estoppel certificates (a"Tenant Estoppel Certificates") Seller agrees to be dated not more than thirty (30) days prior to the Closing Date, duly executed by Tenants such that Buyer shall have received Tenant Estoppel Certificates from and after receipt Tenants under Tenant Leases covering One Hundred percent (100%) of the Assumption Approval leased space in the Project. The Tenant Estoppel Certificates shall be in the form of, and upon the terms contained in Exhibit "B" attached hereto, with such modifications or additions to any particular Tenant Estoppel Certificate as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being shall be reasonably requested by Purchaser Buyer so long as such modifications or additions are for the purpose of confirming certain matters respecting the applicable Tenant Lease; provided, however, if the form of estoppel certificate attached hereto as Exhibit "B" requests information in addition to do soor materially ----------- different than that required to be provided by the particular Tenant pursuant to that particular Tenant's Lease, to deliver to all tenants of the Property a request this condition will be satisfied for that particular Tenant if such Tenant(s) executes an estoppel certificate in the form required pursuant to its Tenant Lease provided it is otherwise consistent with the applicable Tenant Lease and the Rent Roll and provided further that Seller made a good faith effort to attempt to obtain the signature of EXHIBIT D the particular Tenant on the approved form attached heretoas Exhibit "B". At least three (3) business days prior to Seller's delivery to Tenants of the unexecuted Tenant Estoppel Certificates, Seller shall deliver such unexecuted Tenant Estoppel Certificates to Buyer for Buyer's review and approval. In the event Buyer does not give Seller telephonic or written notice of any modifications to such Tenant Estoppel Certificates which form may Buyer desires to be revised if so requested by the Existing Lender. The parties agree thatmade thereto within such three (3) business day period, subject to the provisions of subparagraph (b) below, it Buyer shall be a condition deemed to Purchaser's obligation have approved the forms of such unexecuted Tenant Estoppel Certificates. Seller shall deliver the original executed Tenant Estoppel Certificates to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier Buyer no later than ten two (102) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event Buyer disapproves any Tenant Estoppel Certificate executed by a Tenant, Seller shall use best efforts to cause such Tenant to execute a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject Certificate which is reasonably satisfactory to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or Buyer prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Bindley Western Industries Inc)
Tenant Estoppel Certificates. 4.3.1 The receipt, not later than three (a3) Seller agrees days prior to the Closing Date, of an acceptable estoppel certificate (“Tenant Estoppel Certificate”) from and after receipt Tenants collectively occupying a minimum of eighty percent (80%) of the Assumption Approval as rentable square feet in the Property occupied by Tenants, including each of those Tenants identified on Exhibit E attached hereto (the “Key Tenants”), shall be a condition precedent to Buyer’s obligation to acquire the Property hereunder (the “Estoppel Requirement”). Seller shall request a Tenant Estoppel Certificate in the form set forth in Section 9.1 and provided this Agreement is in full force and effect, Exhibit F from all Tenants within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants expiration of the Property Due Diligence Period. In order to be acceptable for purposes of this Agreement, a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it Tenant Estoppel Certificate shall be a condition addressed to Purchaser's obligation to close under this Agreement that an estoppel certificate either Buyer and shall be substantially in the form attached hereto as Exhibit F, although any provisions of EXHIBIT D the applicable estoppel certificate respecting defaults, defenses, disputes, environmental matters, claims, offsets, credits, abatements, concessions and recaptures against rent and other charges may be limited to the actual knowledge of tenants, and to the extent that a particular Lease prescribes a form or content of the Tenant Estoppel Certificate, Buyer will be obligated to accept the form prescribed by such Lease. In addition, for purposes of this Agreement a Tenant Estoppel Certificate will not be acceptable to the extent such certificate (i) is dated earlier than the expiration of the Due Diligence Period, (ii) discloses, in the form required by case of the Lease of any Key Tenant, that there is a tenant's default or dispute under the applicable Tenant’s Lease, dated not earlier than ten or, in the case of any non-Key Tenant, that there is a material default or dispute under such Tenant’s Lease, (10iii) business days references any material unperformed obligations on the part of Seller under such Tenant’s Lease (including tenant improvement work) that were otherwise required to be performed prior to the Closing Datedate of such estoppel certificate, be delivered the cost of which are not credited to Purchaser no later than five Buyer pursuant to this Agreement, or (5iv) business days before Closing from tenants under contains any information which is not consistent in all material respects with the representations of Seller contained in this Agreement, the Rent Roll attached hereto as Exhibit Q, or the terms of the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), provided by Seller agrees to use Buyer pursuant to this Agreement. Seller’s sole obligation hereunder shall be to utilize good faith efforts to obtain such the Tenant EstoppelsEstoppel Certificates from the Tenants (and, provided howeveras used in this Agreement, Seller good faith efforts shall not be obligated include any obligation to pay tenants in order institute legal proceedings, declare a default or to do soexpend any monies). Notwithstanding Either Seller or Buyer shall have the foregoingright, if at but not obligation, to extend the Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying Date for up to an additional fifteen (15% ) days to cause this condition to be satisfied. Seller agrees to forward any Tenant Estoppel Certificates received by Seller from a Tenant to Buyer promptly after Seller’s receipt of same.
4.3.2 If, prior to the third (3rd) day immediately before the Closing Date, Seller has not received Tenant Estoppel Certificates sufficient to meet the Estoppel Requirement, Seller shall have the right, but not the obligation, to deliver to Purchaser a Seller estoppel or estoppels in substantially the same form as the Tenant Estoppel Certificate set forth on Exhibit F (except that Seller shall be the signatory) with respect to any applicable tenants leasing up to fifteen percent (15%) of the leased rentable area of square footage at the Property (substantially in each, a “Seller Estoppel”) which shall be counted toward the form of EXHIBIT D or in Estoppel Requirement with the form required same effect as if the same had been executed and delivered by the applicable Tenant; provided, however, that a tenant's Lease, appropriately modified Seller Estoppel may not be delivered with respect to reflect that they are certificates of Seller a Key Tenant. The representations and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements warranties of Seller contained therein in any Seller Estoppel shall survive the Closing and the delivery of such Seller Estoppel until the earlier December 31, 2013, at which time, unless a claim of breach thereof has been made by Buyer, such representations and warranties (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate any cause of action resulting from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(bbreach thereof not yet asserted) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled subject to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for limitations upon liability set forth elsewhere in this Agreement. Notwithstanding the foregoingIf Seller delivers a Seller Estoppel, Purchaser then Seller shall not have the right at any time to terminate this Agreement substitute a Tenant Estoppel Certificate subsequently obtained from the tenant for the corresponding Seller Estoppel previously delivered by Seller and such Seller Estoppel being substituted shall thereafter be of no force or effect; provided, that, if any such substitute Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by Estoppel Certificate contradicts the performance of work costing not more than $50,000 corresponding Seller Estoppel in any material respect or omits any material certification contained in the aggregate corresponding Seller Estoppel, then such Seller Estoppel shall continue in effect for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate above referenced period solely with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing material contradiction or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameomission.
Appears in 1 contract
Samples: Purchase Agreement (Cole Credit Property Trust Iv, Inc.)
Tenant Estoppel Certificates. Seller shall use all reasonable efforts to obtain a Tenant Estoppel Certificate from all Tenants, dated no earlier than thirty (a30) days prior to the Closing Date, conforming to the most recent Rent Roll and alleging no defaults, offsets, or claims against Seller agrees from (collectively, “Claims”). Seller shall deliver completed Tenant Estoppel Certificates to Buyer as they are received by Seller, and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, shall use all reasonable efforts to deliver all Tenant Estoppel Certificates to all tenants of Buyer prior the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing LenderClosing. The parties agree that, subject to the provisions of subparagraph (b) below, it It shall be a condition to Purchaser's Buyer’s obligation to close under this Agreement the acquisition of the Property that an estoppel certificate either substantially in not later than the form of EXHIBIT D or in Closing Date:
(a) Seller delivers to Buyer Tenant Estoppel Certificates from the form required by a tenant's LeaseRequired Tenants, setting forth no Claims; or
(b) To the extent Seller is unable to obtain Tenant Estoppel Certificates from the Required Tenants, on the Closing Date (and dated not no earlier than ten two (102) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees shall have delivered to use good faith efforts Buyer a certificate executed by Seller in the form attached hereto as Exhibit G (a “Seller Certificate”), setting forth no Claims. To the extent Seller is unable to obtain such Tenant Estoppels, provided howeverEstoppel Certificates from the Required Tenants, Seller shall deliver Seller Certificates to Buyer and shall set forth in each Seller Certificate any Claims of which Seller has Actual Knowledge. If a Seller Certificate sets forth no Claims, Buyer shall be obligated to accept such Seller Certificates in satisfaction of its condition to Closing under subparagraph (b), above. Buyer shall not be obligated to pay tenants in order accept any Seller Certificate which sets forth a Claim. If Seller is later able to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate Buyer or Buyer later receives (in connection with respect to tenants occupying up to an additional 15% of the rentable area a financing of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE"otherwise) and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains Certificate from any Tenant as to which Seller has provided a Seller Certificate, and such Tenant Estoppel Certificate is consistent in all material exception or qualification or alleges a material default by respects with the Seller Certificate (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days not taking into account matters first occurring after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"applicable Seller Certificate), time being the Seller Certificate as to such Tenant shall become null and void. A Seller Certificate shall be deemed modified by any Claims pertaining to the Tenant or such Tenant’s Lease of which Buyer has Actual Knowledge as of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Tenant Estoppel Certificates. 23.1 Upon request, and within ten (a10) Seller agrees from Business Days after written notice given by or on behalf of Landlord, Tenant shall furnish Landlord with a tenant estoppel certificate signed by Tenant certifying as to such matters relating to the then current status of this Lease as may be reasonably requested by Landlord (or any Superior Lessor (as hereinafter defined), Superior Mortgagee (as hereinafter defined), prospective lessor, prospective mortgagee, prospective purchaser or other party), including:
(1) The Commencement Date and after receipt Expiration Date of this Lease;
(2) That this Lease is unmodified and in full force and effect or, if there has been a modification, that the Assumption Approval as set forth in Section 9.1 and provided this Agreement same is in full force and effect, as modified, and stating such modification;
(3) Whether there are any defaults by Landlord or Tenant hereunder;
(4) Whether there are any existing setoffs or defenses against the enforcement of any of the terms, covenants and conditions of this Lease and whether there are any obligations of Landlord or Tenant to be performed or complied with and, if so, specifying the same;
(5) The date to which Base Rent, Additional Rent and all other charges have been paid;
(6) The amount of any security deposit or letter of credit hereunder; and
(7) Any other matters reasonably requested.
23.2 Any statement furnished pursuant to this Section may be relied upon by Landlord (or any Superior Lessor, Superior Mortgagee, prospective lessor, prospective mortgagee, prospective purchaser or other party). If Tenant fails to execute any tenant estoppel certificate within the time-frame required by this Section, Landlord shall have the right to deliver to Tenant a notice in accordance with the terms of this Lease stating that Tenant has failed to timely deliver the tenant estoppel certificate pursuant to this Section, and if Tenant fails to deliver to Landlord an executed tenant estoppel certificate within five (5) business days Business Days after being requested by Purchaser the delivery of such notice, such failure shall, at Landlord’s option, be deemed an Event of Default hereunder. In addition, if Tenant fails to do so, to deliver to all tenants of the Property a request for an execute any tenant estoppel certificate within the time-frame required by this Section, Tenant shall pay to Landlord a fee in the form amount of EXHIBIT D attached hereto, which form may be revised if so requested by $100.00 per day for each day beyond the Existing Lender. The parties agree that, subject applicable time period that Tenant fails to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver such certificate. Such fee shall be in addition to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an Landlord’s other remedies hereunder.
23.3 No tenant estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed pursuant to be an acceptable estoppel certificate for purposes of this Section 7.4.5shall have the effect of amending this Lease. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to case of any conflict between the following provisions terms of this Section 7.4.5), Purchaser's sole Lease and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier content of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of any such notice. If Purchaser shall timely give the Estoppel Termination Noticecertificate, then subject to Seller's option set forth below, the terms of this Agreement Lease shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samecontrol.
Appears in 1 contract
Samples: Office Lease Agreement (Tufin Software Technologies Ltd.)
Tenant Estoppel Certificates. Seller shall have delivered to Buyer, at or before Closing, a written statement from (ax) Seller agrees from and after receipt each tenant occupying not less than 20,000 rentable square feet of the Assumption Approval as set forth in Section 9.1 Premises (each, a “Major Tenant”) and provided this Agreement is in full force and effect, within five (5y) business days after being requested by Purchaser to do so, to deliver to all a sufficient number of other tenants of (the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b“Non-Major Tenants”) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, rentable square footage of the Premises which, when taken together with the rentable square footage occupied by the Major Tenants, is not less than 7585% (the “Estoppel Percentage”) of the total rentable area square footage of the PropertyPremises occupied by tenants under the Existing Leases, including all in each instance of (x) and (y) in substantially the form of, and as qualified by, the form of tenant estoppel certificate set forth on Exhibit “H” attached hereto and made a part hereof or in the form required to be provided by a tenant under its Existing Lease (“Tenant Estoppel Certificate”). In determining whether the foregoing requirement has been satisfied, Buyer agrees not to object to (i) any non-material (as determined in Buyer’s reasonable judgment) qualifications or modifications which a tenant may make to the form of Tenant Estoppel Certificate and (ii) any modification to a Tenant Estoppel Certificate to conform it to the form of tenant estoppel the tenant is required to give under its lease. If Seller does not obtain a Tenant Estoppel Certificate from a sufficient number of Non-Major Tenants to meet the Estoppel Percentage, Seller may, at its sole option, elect to: (i) adjourn the Closing for a period not to exceed ten (10) days to continue its efforts to obtain Tenant Estoppel Certificates and/or (ii) execute estoppel certificates, in the form of Exhibit “H” hereto, mutatis mutandis, with respect to any of the Existing Leases for which Tenant Estoppel Certificates were not obtained in order to satisfy the estoppel requirements of this subparagraph (a)(iv); provided, that Seller may provide such estoppel certificates with respect to no more than ten percent (10%) of the space leased in the Premises and only for tenants occupying that are not Major Tenants. If any tenant indicates in its Tenant Estoppel Certificate that it has a claim which would entitle it to set-off the amount of the claim against rent due under its lease and the amount of such claim is ascertainable, Seller shall have the right, at least its sole option, to give Buyer a full floor credit against the cash portion of the Purchase Price in the amount of the claim or more to deliver an indemnity, reasonably acceptable to Buyer, with respect thereto, in which event, Buyer shall complete Closing and take subject to such claim. Notwithstanding the foregoing provisions of space this subparagraph (a "TENANT ESTOPPEL"a)(iv), Seller agrees to use good faith efforts request a Tenant Estoppel Certificate from each of the tenants under the Existing Leases. Seller’s failure to obtain such a Tenant Estoppels, provided however, Seller Estoppel Certificate from each Major Tenant or to otherwise satisfy the Tenant Estoppel Percentage shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing constitute a default by Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5hereunder. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectivelyof such failure, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's Buyer’s sole and exclusive remedy shall be to either (x) waive the estoppel requirement and proceed to Closing without any abatement in the Purchase Price or (y) terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of and receive a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameDeposit.
Appears in 1 contract
Samples: Agreement of Sale (Hines Real Estate Investment Trust Inc)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it It shall be a condition to Purchaser's Buyer’s obligation to close under the transactions hereunder that the Estoppel Certificate Requirement (as defined below) has been satisfied. For purposes of this Agreement, an “Estoppel Certificate” or “Estoppel Certificates” shall mean estoppel certificates dated within thirty (30) days of the originally scheduled Closing Date of this Agreement that an estoppel certificate either substantially (a) in the form of EXHIBIT D Exhibit B attached hereto, or if applicable, (b) in such form as is permitted under any particular tenant Lease. For purposes of this Agreement, the “Estoppel Certificate Requirement” shall mean receipt of Estoppel Certificates duly executed by each of (i) Common Grounds 999 Peachtree, LLC, (ii) Eversheds Xxxxxxxxxx (US) LLP, (iii) M. Xxxxxx Xxxxxxx Xx. & Associates, Inc., and (iv) Oxford Industries, Inc. (collectively, the “Required Tenants”) and from such other tenants who, together with the Required Tenants, lease at least seventy percent (70%) of the leased square footage of the Property. Seller shall prepare Estoppel Certificates in the form required of Exhibit B attached hereto and shall provide Buyer with three (3) Business Days to review the same. Seller shall review and incorporate any changes provided by a tenant's Lease, dated not earlier than ten Buyer during such three (103) business days prior Business Day period to the Closing Dateextent Seller reasonably deems appropriate; provided, however, that Buyer shall be delivered deemed to Purchaser no later than five have approved the draft Estoppel Certificates after expiration of such three (53) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Business Day period. Seller agrees to shall use good faith commercially reasonable efforts to obtain such executed Estoppel Certificates from each Tenant Estoppelsunder a Lease of more than 1,000 square feet, provided howeverbut in no event shall Seller be required to expend any material funds, make any concessions to tenants or place (or threaten to place) any tenant in default in connection therewith. Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and will deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% Buyer copies of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to each executed Estoppel Certificate promptly following Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's ’s receipt thereof. An Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications Certificate shall be deemed to be an acceptable estoppel certificate for purposes satisfy the Estoppel Certificate Requirement as long as it does not contain any material inconsistency with the representations of this Section 7.4.5. In Seller contained herein or with the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectivelyterms of the Lease, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be deemed satisfactory notwithstanding the respective tenant’s qualifying any statement or certification therein by a “best of knowledge” standard or similar provision. Seller shall have the one time right to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or extend the Closing Date (the "ESTOPPEL TERMINATION NOTICE")to November 2, time being of the essence as 2021 to the giving of such notice. If Purchaser shall timely give attempt to satisfy the Estoppel Termination NoticeCertificate Requirement, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), Buyer at Seller's option least three (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or 3) Business Days prior to the scheduled Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Franklin Street Properties Corp /Ma/)
Tenant Estoppel Certificates. Seller shall use commercially reasonable efforts (aat no cost to Seller other than amounts for incidental expenses) to obtain and deliver to Purchaser prior to Closing a written Tenant Estoppel Certificate signed by each tenant under the Leases; provided that delivery of such signed Tenant Estoppel Certificates shall be a condition of Closing only to the extent set forth in Section 6.1(c) hereof; and in no event shall the inability or failure of Seller agrees to obtain and deliver any of said Tenant Estoppel Certificates (Seller having used its good faith efforts as set forth above as to the tenants under the Leases) be a default of Seller hereunder. In the event Seller has obtained Tenant Estoppel Certificates from the Critical Tenants by the Closing Date, but Seller has not obtained a Tenant Estoppel Certificate from the tenant under the Cxxxxx Lease or the Lighthouse Lease (Seller having used commercial reasonable efforts to obtain the same), Seller shall have the right, at its election, to either (i) postpone Closing for up to thirty (30) days to pursue said outstanding Tenant Estoppel Certificate or (ii) make a written representation and after receipt warranty to Purchaser at Closing in the certificate to be delivered pursuant to Section 5.1(o) of this Agreement with respect to the Assumption Approval matters set forth on Exhibit M attached hereto; provided, however, (y) Seller's liability for such representation and warranty shall be limited as set forth in Section 9.1 Sections 11.3 and provided 11.4 of this Agreement is in full Agreement, and (z) such representation and warranty will become null and void and of no further force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised effect if so requested by the Existing Lender. The parties agree that, subject and to the provisions extent, at any time after the delivery of subparagraph (b) belowsuch certificate, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered Seller receives and delivers to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such said outstanding Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Fund Ix Lp)
Tenant Estoppel Certificates. On or before the date which is two (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (102) business days prior to the Closing Contingency Deadline (the “Estoppel Delivery Date”), be Seller shall have delivered to Purchaser no later than five Buyer an Estoppel Certificate in substantially the form of Exhibit “E” attached hereto or in the form the tenant is required to deliver under its Lease (5the “Estoppel Certificate”) from each of the tenants under the Leases, but specifically excluding (i) the Cepheid Lease (as hereinafter defined) for the premises located at 000-000 Xxxx Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx and (ii) the Verizon License Agreement (as hereinafter defined) (the “Estoppel Delivery Requirement”). For purposes of this Agreement, the term “Verizon License Agreement” shall mean that certain License Agreement dated as of March 11, 2010, by and between Seller, as licensor, and GTE Mobilnet of California Limited Partnership, d/b/a Verizon Wireless, as licensee. If Seller is unable to deliver timely to Buyer the appropriate number of Estoppel Certificates to satisfy the Estoppel Delivery Requirement, Seller may, but without any obligation to do so, deliver to Buyer prior to the Close of Escrow, in lieu of an Estoppel Certificate executed by a tenant, an estoppel certificate executed by Seller (the “Seller Estoppel”), in substantially the form attached hereto as Exhibit “K”, in order to satisfy the Estoppel Delivery Requirement. The Seller Estoppel executed by Seller shall be subject to the limitations contained in Sections 11.9 and 16.4, and such Seller Estoppel shall be deemed automatically null and void upon the delivery of an Estoppel Certificate from the tenant for whom Seller delivered such Seller Estoppel. To the extent that any Estoppel Certificate executed by a tenant is not substantially in the form attached hereto as Exhibit “E” or in the form such tenant is required to deliver under its Lease, Buyer shall have two (2) business days before Closing from tenants after receipt of each such executed Estoppel Certificate to approve or reasonably disapprove the applicable Estoppel Certificate so received (and the failure to timely do so shall constitute approval thereof); provided, however, notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Buyer may only disapprove an executed Estoppel Certificate (or Seller Estoppel, as applicable) if it (a) discloses material adverse economic terms of the applicable Lease that were not disclosed to Buyer (whether in the applicable Lease or any other document delivered or made available to Buyer) prior to the date of the delivery of such Estoppel Certificate to Buyer, (b) alleges a material default of Seller (as landlord) under the Leases occupyingapplicable Lease, or (c) discloses a material unresolved dispute between Seller and such tenant in connection with the aggregateapplicable Lease not previously disclosed to Buyer in writing by Seller or in any document delivered or made available to Buyer; otherwise, not less than 75% of the rentable area of the Propertyapplicable Estoppel Certificate (or Seller Estoppel, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees as applicable) shall be deemed acceptable to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do soand approved by Buyer. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of has not satisfied the rentable area of Estoppel Delivery Requirement by the PropertyEstoppel Delivery Date, Seller may execute shall have the right, by delivering written notice to Buyer prior to 5:00 p.m. Pacific time, on the Estoppel Delivery Date, to extend the Estoppel Delivery Date and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying Outside Closing Date for up to an additional fifteen (15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) in order to obtain sufficient estoppel certificates to satisfy the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5Delivery Requirement. In the event Seller is unable to obtain Estoppel Certificates (or is unable or unwilling to provide a Tenant Seller Estoppel) sufficient to satisfy the Estoppel contains a material exception or qualification or alleges a material default Delivery Requirement by Seller the Estoppel Delivery Date, Buyer may elect to (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to i) terminate this Agreement by delivering notice thereof in writing pursuant to SellerSection 4.4, on or (ii) waive the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as Delivery Requirement and proceed to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Terreno Realty Corp)
Tenant Estoppel Certificates. The Sellers shall have delivered to Buyer, at least seven (a7) days before the Applicable Closing, a written statement dated no more than thirty (30) days from the Applicable Closing from (A) each tenant occupying in excess of 2,000 square feet (“Required Tenants”) and (B) other tenants occupying an aggregate of no less than eighty percent (80%) of the square feet of the total rentable square footage of the Premises occupied by tenants under the Existing Leases (the “Estoppel Percentage”), in substantially the form of, and as qualified by, the form of tenant estoppel certificate set forth on Exhibit “L” attached hereto and made a part hereof (“Tenant Estoppel Certificate”). Should any of the Tenant Estoppel Certificates (i) contain a material discrepancy (as determined by Buyer in Buyer’s good faith business judgment) from the Rent Roll prepared by Seller agrees and given to Buyer pursuant to this Agreement or from the applicable Existing Lease, (ii) disclose an alleged material breach (as determined by Buyer in Buyer’s good faith business judgment) by Seller, as landlord, under any Existing Lease, or (iii) disclose an unsatisfactory condition (as determined by Buyer in Buyer’s good faith business judgment) not discovered by Buyer during the Inspection Period, then Buyer may disapprove the Tenant Estoppel Certificates and elect to treat the Respective Premises as an Excluded Property hereunder, by giving written notice of its disapproval within three (3) Business Days after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants Tenant Estoppel Certificates. If Buyer does not give written notice of its disapproval of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptionsCertificates within such three (3) Business Day period, qualifications or modifications then Buyer shall be deemed to be an acceptable estoppel certificate for purposes have approved of this Section 7.4.5the Tenant Estoppel Certificates. In determining whether the event Estoppel Percentage has been satisfied, Buyer agrees not to object to (i) any non-material (as determined in Buyer’s reasonable judgment) qualifications or modifications which a tenant may make to the form of Tenant Estoppel Certificate and (ii) any modification to a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject Certificate to conform it to the following provisions form of this Section 7.4.5tenant estoppel the tenant is required to give under its lease. As to the twenty (20%) percent of the Premises for which Tenant Estoppel Certificates were not obtained, the Seller of each Respective Premises shall execute estoppel certificates, in substantially the form of Exhibit “L” hereto (“Landlord Estoppel Certificate”). If, Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Sellerafter delivery of the Landlord Estoppel Certificate, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging Certificate is delivered for a Material Default tenant covered under the Landlord Estoppel Certificate, such Tenant Estoppel Certificate shall supersede and replace any statements made by landlord with respect to such tenant or the Closing Date (applicable lease in the "ESTOPPEL TERMINATION NOTICE")Landlord Estoppel Certificate, time being and such Seller shall have no liability hereunder with respect to any representations or information set forth in the Landlord Estoppel Certificate with respect to such tenant. If any tenant of a Property indicates in its Tenant Estoppel Certificate that it has a claim which would entitle it to set-off the amount of the essence as to claim against rent due under its lease and the giving amount of such notice. If Purchaser claim is ascertainable, the Seller of such Property shall timely give Buyer a credit against the Estoppel Termination NoticeAllocated Purchase Price in the amount of the claim or to deliver an indemnity, then reasonably acceptable to Buyer, with respect thereto, in which event, Buyer may, in its sole discretion, either complete the Applicable Closing with respect to such Property and take subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in claim or terminate this Agreement. Notwithstanding the foregoingforegoing provisions of this Section 12(a)(v), Purchaser shall not have the right each Seller agrees to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such request a Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure Certificate from each of the nonconforming matter set forth in such estoppel by either performing or causing to be performed tenants under the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameExisting Leases.
Appears in 1 contract
Samples: Agreement of Sale (Grubb & Ellis Healthcare REIT, Inc.)
Tenant Estoppel Certificates. Seller shall use commercially reasonable efforts to obtain and deliver to Purchaser fully completed estoppel certificates from eighty percent (a80%) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants Tenants of the Property (by square footage) occupying the Property as of the Closing, which eighty percent (80%) shall include all Tenants of the Property occupying more than 10,000 rentable square feet at the time of the Closing (including, without limitation, GSA) (each a request for an estoppel certificate "Major Tenant") in the form of EXHIBIT D attached hereto, which form may be revised if so requested by hereto as Exhibit "H" (herein referred to as the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPELTenant Estoppel Certificates"), Seller agrees to use good faith efforts to obtain such duly executed by the Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do sothereunder. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially GSA, which is a Major Tenant, Seller shall obtain a letter in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified Exhibit "H-1" (herein referred to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, as the "SELLER'S ESTOPPEL CERTIFICATEGSA Certificate") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser lieu of a Tenant Estoppel alleging a Material Default or Certificate. Seller shall use all reasonable efforts to cause the Closing Date (the "ESTOPPEL TERMINATION NOTICE")executed Tenant Estoppel Certificates and GSA Certificate to be delivered to Purchaser prior to June 4, time being of the essence as to the giving of such notice2004. If Purchaser furnishes an alternate form of estoppel certificate to Seller on or before April 21, 2004 and Seller reasonably approves such alternate form (which Seller shall timely give the Estoppel Termination Noticeapprove or disapprove within two (2) business days of receipt), then subject Seller will present such alternate certificate to Sellerthe Tenants, but Purchaser's option set forth below, obligations as described in Section 6.(d) of this Agreement shall terminatebe conditioned upon the receipt of estoppel certificates from the Tenants in the form of either the attached Exhibit "H" or "H-1", as the case may be, or the form that Purchaser provides to Seller on or before April 21, 2004, or any combination thereof. The Tenant Estoppel Certificates and upon such termination, Purchaser GSA Certificate shall be entitled to the return executed as of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing date not more than $50,000 in the aggregate for all such Tenant Estoppel(ssixty (60) or the payment of money not exceeding $50,000 in the aggregate days prior to Closing. Purchaser's obligations under this Agreement shall be conditioned upon Purchaser receiving an executed Estoppel Certificate (and, with respect to such tenants and GSA, the GSA Certificate) from eighty percent (y80%) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery square footage) of such Tenant Estoppel to Purchaser), at Seller's option the Tenants (but Seller shall have no obligation), to cure including the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or Major Tenants) prior to the Closing DateJune 4, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work2004, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect such date may be extended pursuant to the sameParagraph 6(d) above.
Appears in 1 contract
Tenant Estoppel Certificates. Seller shall use commercially reasonable efforts to (a) prepare, or cause to be prepared, and deliver to Purchaser for review and approval, within three (3) Business Days following the date hereof, the estoppel certificates in substantially the form of Exhibit D attached hereto (each, a “Tenant Estoppel Certificate”, and collectively, the “Tenant Estoppel Certificates”), and (b) remit, or cause to be remitted, the Tenant Estoppel Certificates to the tenants identified on Exhibit C attached hereto and made a part hereof (collectively, the “Required Tenants”) for signature within two (2) Business Days following Purchaser’s written notice to Seller agrees that Purchaser has approved the Tenant Estoppel Certificates (which notice shall set forth any required corrections). If Purchaser fails to notify Seller of its approval of, or any changes to, the Tenant Estoppel Certificates it receives from and after Seller for approval within two (2) Business Days following Purchaser’s receipt of the Assumption Approval same, Seller may forward such Tenant Estoppel Certificates to the tenants without Purchaser’s prior approval. Subject to the further provisions of this Section 4.3, receipt of Tenant Estoppel Certificates substantially in the form prescribed above or as set forth provided below from the Required Tenants, (x) not disclosing the existence of any material uncured default under the leases referred to therein and (y) confirming the information contained in Section 9.1 and provided the Tenant Estoppel Certificate delivered to Purchaser for approval, shall be a condition precedent to Purchaser’s obligation to purchase the Property hereunder. Seller shall promptly, following receipt of the same, deliver copies of the completed Tenant Estoppel Certificates to Purchaser. Seller shall use commercially reasonable efforts (and, as used in this Agreement Agreement, commercially reasonable efforts shall not be deemed to include any obligation to institute legal proceedings, deliver notices of default or to expend any monies) to obtain executed Tenant Estoppel Certificates. Notwithstanding the foregoing, any Tenant Estoppel Certificate that is in full force and effectthe form, within five (5) business days after being requested by Purchaser to do soif any, to deliver to all tenants of prescribed in the Property a request for an estoppel certificate applicable lease or other operative document or that is in any form which does not materially vary from the representations made in the form of EXHIBIT Tenant Estoppel Certificate in Exhibit D attached hereto(as modified to make the statement contained therein factually correct) shall be deemed to be a satisfactory Tenant Estoppel Certificate for all purposes under this Agreement, which form may be revised if so requested provided that such Tenant Estoppel Certificate does not disclose any material uncured default under the leases referred to therein and, to the extent required by the Existing Lenderterms of such tenant’s lease, confirms the information contained in the Tenant Estoppel Certificate delivered to Purchaser for approval. The parties agree thatSeller agrees that upon its receipt of a form subordination, subject non-disturbance and attornment agreement (an “SNDA”) from Purchaser or its lender, Seller shall promptly send such SNDAs to the provisions of subparagraph tenants, and shall use commercially reasonable efforts (b) belowand, it as used in this Agreement, commercially reasonable efforts shall not be a condition deemed to Purchaser's include any obligation to close under this Agreement that an estoppel certificate either substantially in institute legal proceedings, deliver notices of default or to expend any monies) to obtain the form of EXHIBIT D or in SNDAs, signed by the form required by a tenant's Leasetenants, dated not earlier than ten (10) business days prior to the Closing Date; provided, be delivered to however, that Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% acknowledges and agrees that receipt of any or all of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller SNDAs shall not be obligated a condition precedent to pay tenants in order Purchaser’s obligation to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of purchase the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject Subject to the provisions of subparagraph sub-paragraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's LeaseBuyer will have received, dated not earlier less than ten one (101) business days day prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing Tenant Estoppel Certificates from tenants under of the Leases Property occupying, in the aggregate, not less than 75% ninety percent (90%) of the rentable gross leasable area of the PropertyImprovements occupied by tenants (and which will include Tenant Estoppel Certificates from (i) with respect to the Mall 205 Tenant Leases, including all Home Depot, 24-Hour Fitness, Famous Footwear and Bed, Bath and Beyond; and (ii) with respect to the Plaza 000 Xxxxxx Xxxxxx, XxxxxxXxx, Xxxxx'x, Xxxxxx Xxxxxx Postal Service, XxXxx Fabrics, Dollar Tree, Old Country Buffet, Providence Health Care and Oregon State Police [each, an "ANCHOR TENANT"]). Notwithstanding anything to the contrary herein, if, on or before the Closing Date, the condition set forth in this Paragraph 10B(3) is not satisfied (or waived by Buyer), then the Closing Date will be extended on a day to day basis until such condition is in fact satisfied; provided, however, that if the Closing Date is hereby extended for more than thirty (30) days, Buyer and Seller will have the right, by written notice delivered to the other, to terminate this Agreement, in which event this Agreement will terminate, the Escrow Deposit will be promptly returned to Buyer and no party hereto will have any further obligations in connection herewith except under those provisions that expressly survive a termination of this Agreement.
(b) If Buyer has not received Tenant Estoppel Certificates from tenants occupying at least a full floor of the Property occupying, in the aggregate, ninety percent (90%) or more of space the gross leasable area of the Improvements occupied by tenants, including each Anchor Tenant, Seller will have the right, but not the obligation, as determined in Seller's sole discretion, to deliver to Buyer Seller's own written certificate or certificates (each, a "TENANT ESTOPPELSELLER CERTIFICATE," and, collectively, ")SELLER CERTIFICATES") as may be necessary to deliver to Buyer a combination of Tenant Estoppel Certificates and Seller Certificates for tenants of the Property occupying, in the aggregate, at least ninety percent (90%) of the gross leasable area of the Improvements occupied by tenants. Each Seller Certificate will be in the appropriate form of the Tenant Estoppel Certificate for a Tenant Lease, provided, however, that any statements in a Seller Certificate that are not determinable upon a reading of the applicable Tenant Lease will be based upon Seller's actual knowledge. If Seller delivers a Seller Certificate to Buyer, and thereafter Buyer receives a duly executed Tenant Estoppel Certificate for the Tenant Lease, then it will supersede the Seller Certificate as to all matters addressed in the Tenant Estoppel Certificate, and Seller will have no further liability under the Seller Certificate with respect to such matters. If Seller delivers a Seller Certificate to Buyer with respect to a Tenant Lease, Seller agrees will indemnify and defend Buyer from and against all claims, liabilities and losses that Buyer incurs as a result of any material misrepresentation of any matter contained in the Seller Certificate, except to use good faith efforts the extent such Seller Certificate has been superseded by a Tenant Estoppel Certificate as provided above. Seller's obligations under any Seller Certificate will be subject to obtain such Tenant Estoppels, provided howeverthe provisions of this Agreement relating to limitation of liability and will survive the Closing of the transaction contemplated by this Agreement for the period set forth in Xxxxxxxxx 0X hereof. Notwithstanding the foregoing, Seller shall not be obligated required to pay tenants in order deliver, and Buyer shall not be required to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectivelyaccept, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Seller Certificate from an Anchor Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not leasing more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment 15,000 rentable square feet of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samespace.
Appears in 1 contract
Samples: Real Property Purchase Agreement (Inland Western Retail Real Estate Trust Inc)
Tenant Estoppel Certificates. That Seller shall have obtained acceptable executed tenant estoppel certificates (athe “Tenant Estoppel Certificates”) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached heretowith respect to all Leases. In order to be acceptable, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it such Tenant Estoppel Certificates shall be a condition addressed to Purchaser's obligation Buyer, Buyer’s lender (if the identity of such lender is timely provided to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's LeaseSeller), and their respective successor and assigns, shall be dated not earlier more than ten thirty (1030) business days prior to the Scheduled Closing DateDate (as defined in Section 9.1 herein), and shall be in substantially the same form as is attached hereto as Exhibits X-0, X-0, X-0, and H-4 (with tenants filling in the applicable blanks and attaching the applicable exhibits) or such other form as may be proscribed for particular tenant(s) in their respective Leases. A Tenant Estoppel Certificate shall be deemed acceptable even if a tenant revises the form Tenant Estoppel Certificate so long as such tenant revisions do not allege any material default on the part of the landlord, do not disclose any material disputes under the applicable Lease, and do not contain information that is materially different than the information contained in the copies of Leases delivered to Purchaser Buyer or contained in Seller’s representations expressly made in this Agreement. Seller shall diligently and in good faith endeavor to obtain and deliver such Tenant Estoppel Certificates to Buyer, provided that Seller shall have no later than five (5) business days before Closing from tenants under obligation to make any payment or to institute any action or proceeding against any tenant in order to obtain the Leases occupyingTenant Estoppel Certificates, in the aggregateand Seller shall have no liability to Buyer if any Tenant Estoppel Certificates are not obtained, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use notwithstanding Seller’s good faith efforts to obtain such Tenant Estoppels, provided howeversame. For purposes of this Section 8.1.1, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In have used “good faith” efforts to obtain and deliver to Purchaser the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Certificates if Seller (collectively, a "MATERIAL DEFAULT"), subject delivers the applicable form of such Tenant Estoppel Certificates to the following provisions of this Section 7.4.5)tenants and thereafter make reasonable, Purchaser's sole and exclusive remedy shall periodic inquiries (which inquiries may be to terminate this Agreement verbal, written, or by delivering notice thereof in writing to Seller, on email) regarding the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being status of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, tenant’s review and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameCertificates.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Cole Corporate Income Trust, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property shall have received a request for an duly executed estoppel certificate from (A) Lake Pointe Investors, LLC, as tenant under the Lake Pointe Xxxxx Lease, and (B) Boca Ciega Investors, LLC, as tenant under the Boca Ciega Bay Lease, each substantially in the form attached hereto as Exhibit C (each, a “Summit Lease Estoppel Certificate”). If any of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition conditions to Purchaser's obligation ’s obligations to close under this Agreement that an estoppel certificate either substantially are not satisfied on and as of the then Scheduled Closing Date (and Purchaser has not waived the same), then (i) Seller may, if it so elects and without any abatement in the form of EXHIBIT D Purchase Price, adjourn the Scheduled Closing Date for a period or periods not to exceed sixty (60) days in the form required by a tenant's Leaseaggregate (or, dated not earlier than ten (10) business days prior if Seller has elected to adjourn the Closing Datepursuant to Section 16, be delivered then for a period not to Purchaser no later than five exceed sixty (560) business days before less the number of days for which Seller has adjourned the Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees pursuant to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants Section 16) in order to do so. Notwithstanding attempt to satisfy such conditions and (ii) if, after any such extension, the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver conditions precedent to Purchaser, at Closing, its own certificate with respect ’s obligation to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive effect the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed continue not to be an acceptable estoppel certificate for purposes satisfied (and Purchaser has not waived the same) or Seller does not elect such extension and such failure is not otherwise a result of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material any default by Seller (collectively, a "MATERIAL DEFAULT"in which event Purchaser would be afforded the rights under Section 18(b)), subject then Purchaser may elect either: (y) to the following provisions of this Section 7.4.5), Purchaser's sole waive such failure and exclusive remedy shall be proceed to Closing or (z) to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event neither Seller shall, at nor Purchaser shall have any further rights or before the Closing, cure, perform, pay or grant Purchaser a credit with respect obligations to the sameother under this Agreement, except those arising under provisions that expressly survive such termination.
Appears in 1 contract
Samples: Portfolio Acquisition Agreement (NorthStar Healthcare Income, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, to submit or cause its property manager to submit within five ten (510) business days after being requested by Purchaser the Effective Date hereof to do so, to deliver to all tenants of the Property each tenant or lessee under a Lease a request for an such tenant or lessee to execute and deliver a tenant estoppel certificate to Purchaser with respect to its Lease in the form of attached hereto as EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it D. It shall be a condition precedent to Purchaser's obligation to close under this Agreement Closing obligations that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's LeasePurchaser receive, dated not earlier less than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five tenant estoppel certificates from (5i) business days before Closing from tenants under Safeway and Party City (collectively, the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPELMAJOR TENANTS"), Seller agrees to use good faith efforts to obtain plus (ii) such Tenant Estoppelsnumber of other tenants which, provided howevertogether with the Major Tenants, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying collectively occupy at least 60% eighty-five percent (85%) of the rentable area of the Property, Seller may execute and deliver to Purchaser, leased square footage at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in collectively, the "REQUIRED TENANT ESTOPPELS") on the form of the estoppel certificates attached as EXHIBIT D or in on the form required by a the applicable lease agreement or on the form promulgated by the tenant's Lease, appropriately modified to reflect that they are certificates . If Purchaser does not receive the Required Tenant Estoppels as of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until Date, Seller may extend the earlier of Closing Date up to fifteen (a) one hundred and eighty (18015) days after Closingto allow Seller to obtain the Required Tenant Estoppels. If Purchaser does not receive the Required Tenant Estoppels on or before the expiration of such fifteen (15) day period, or if applicable, Purchaser may either (bi) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing delivered to SellerSeller on or before the Closing Date, on as extended by Seller if applicable, in which event the earlier of five (5) business days after the date of delivery Xxxxxxx Money shall be returned to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation further obligations hereunder other than as may the Surviving Obligations, or (ii) waive the foregoing condition precedent and proceed to Closing. A Required Tenant Estoppel will not be expressly provided deemed acceptable hereunder for purposes of satisfying the condition specified herein if (i) it discloses a default by Seller or sets forth material adverse matters which are in direct conflict with the applicable Lease and rent roll delivered to Purchaser pursuant to SECTION 4.1(d) of this AgreementAgreement (not including minor square footage discrepancies or commencement date discrepancies for leases that have commenced), and (ii) the same is objected to by Purchaser in writing within the sooner to occur of the Closing Date or five (5) days after Purchaser's receipt thereof, and (iii) such matters so objected to are not cured or satisfied by Seller on or before the Closing Date. Notwithstanding anything to the foregoingcontrary contained herein, Seller hereby discloses to Purchaser that Play-It-Again Sports is delinquent in its payment of rent for approximately six (6) months, and such delinquency is approximately in the amount of $33,324.72. In connection therewith, Purchaser shall not have the right to terminate object to any tenant estoppel certificate for Play-It-Again Sports that discloses such rent delinquency. If Purchaser shall not have terminated this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or under this SECTION 4.8 prior to the Closing Date, by paying as may have been extended pursuant hereto, Purchaser shall be deemed for all purposes to be satisfied with the money responses to Seller's requests for tenant estoppel certificates and the form and substance of each tenant estoppel certificate and shall have no further right to terminate this Agreement based on the response or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit lack thereof with respect to the sametenant estoppel certificates. Notwithstanding anything to the contrary contained herein, Seller agrees to submit or cause its property manager to submit within ten (10) days after the Effective Date hereof to each guarantor under a Lease a request for such guarantor to execute and deliver a guarantor estoppel certificate to Purchaser with respect to the Lease in the form attached hereto as EXHIBIT D-1. Seller shall have no obligation or responsibility with respect to any guarantor estoppel certificate other than to submit or cause to be submitted such certificate to such guarantor and request the execution and return thereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either Tenant Estoppel Certificates substantially in the form of EXHIBIT D or in the form required by G-1 (or, if a tenant's LeaseLease specifies or contemplates another form of tenant estoppel certificate, dated not earlier than ten (10then such other specified or contemplated form) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from executed by tenants under the Leases occupying, in the aggregate, occupying not less than 7590% of the rentable area of square feet in the PropertyImprovements leased to tenants, including but which must in all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL")events include Cost Plus, Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, World Market and Pier I Imports. Seller shall not be obligated to pay tenants expend any funds in order connection with obtaining any such tenant estoppel certificates, and the failure of Seller to obtain any such tenant estoppel certificates shall not be a breach or default hereunder. Seller shall use commercially reasonable efforts to reconcile factual Page 15 discrepancies between the Tenant Estoppel Certificates and the Lease Files and Rent Roll so long as Seller is not obligated to incur costs to do so. Notwithstanding If Seller is unable to deliver the foregoingtenant estoppel certificates referred to in this SECTION 7.3.7 in the manner and time frames required hereby, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% including reconciliation of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially same in the form of EXHIBIT D or in the form required by a tenantmanner described above, then Purchaser's Lease, appropriately modified sole remedies and recourses shall be limited to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of either (a) one hundred waiving the requirement for the tenant estoppel certificate(s) in question and eighty (180) days after Closing, proceeding to Closing without reduction of the Purchase Price or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate terminating this Agreement by delivering notice thereof in writing immediate notification to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event this Agreement shall be terminated as provided for in SECTION 10.2 even if it is determined that the Tenant Estoppel Certificates cannot be obtained following the expiration of the Inspection Period. Either decision must be made within three (3) business days of receipt of the Tenant Estoppel Certificates or Purchaser will be deemed to have elected to proceed under (a) above. The parties further agree that Seller shall, at or before may extend the Closing, cure, perform, pay or grant Closing for a period of up to but not in excess of fifteen (15) days in order to permit Seller additional time to secure the requested Tenant Estoppel Certificates and in such instance Purchaser a credit with respect to cannot terminate until the sameexpiration of the aforesaid fifteen (15) day period.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender0.0.0. The parties agree that, subject to the provisions of subparagraph (b) below, it Xx shall be a condition to Purchaser's obligation Closing that the Estoppel Certificate Requirement (as defined below) has been satisfied.
4.6.1. Sellers shall request from (and upon Buyer’s written request with respect to close under this Agreement that an any specific tenants shall send a follow up request to) each of the tenants at the Properties, and promptly deliver to Buyer to the extent received, estoppel certificate certificates, either substantially (a) in the form of EXHIBIT Exhibit D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, attached hereto or (b) the date Purchaser obtains in such form as is permitted by any tenant Lease (in either case, an estoppel certificate from a tenant for whom Seller delivered a Seller's “Estoppel Certificate.
” or “Estoppel Certificates”). Prior to sending any Estoppel Certificates to tenants, Sellers shall deliver drafts thereof to Buyer for Buyer’s review and comment. Sellers shall deliver to Buyer any material comments that Sellers receive to any Estoppel Certificates. Buyer shall notify Sellers within three (b3) The parties agree that each Tenant Business Days of Buyer’s receipt of any Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In Certificate in the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject Buyer has any comments to the following provisions of this Section 7.4.5)Estoppel Certificate in Buyer’s reasonable discretion, Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on along with the earlier of five reasons for such comments (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time it being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser understood that Buyer shall not have the right to terminate this Agreement provide any comments which are inconsistent with the Leases, and that an Estoppel Certificate shall be deemed to be a satisfactory Estoppel Certificate for purposes of Section 4.6.3 below if Tenant Estoppel(sit otherwise satisfies the requirements of clauses (a) allege Material Default(sand (b) if (x) such Material Default(s) can be remedied by the performance of work costing Section 4.6.3 but a tenant does not more than $50,000 ultimately include in its estoppel certificate any statements that it is not otherwise expressly required to make in the aggregate for all estoppel pursuant to its Lease). In the event Buyer fails to give such Tenant Estoppel(snotice within such three (3) or Business Day period, then any such Estoppel Certificate shall be deemed to be acceptable to Buyer.
4.6.2. For purposes of this Agreement, the payment “Estoppel Certificate Requirement” shall be receipt by Buyer of money not exceeding $50,000 in the aggregate Estoppel Certificates with respect to each Building duly executed by each tenant at such Building which leases at least 20,000 rentable square feet under its Lease (each, a “Major Tenant”, and collectively, the “Major Tenants”) and from such other tenants who, together with the Major Tenants, lease at least eighty percent (80%) of the leased square footage of such Building. For the avoidance of doubt, the Estoppel Certificate Requirement applies to each Building individually and not the Buildings in the aggregate. An Estoppel Certificate shall be deemed to satisfy the Estoppel Certificate Requirement as long as it (a) does not contain any material inconsistency with the representations of Sellers contained herein or in the Due Diligence Certificate or with the terms of the Lease, and (yb) Seller elects is dated no earlier than the date that is thirty (30) days following the Effective Date. An Estoppel Certificate that otherwise satisfies the foregoing requirements shall be deemed satisfactory notwithstanding the respective tenant’s qualifying any statement or certification therein by written notice to Purchaser given simultaneously with Seller's delivery a “best of such Tenant Estoppel to Purchaser)knowledge” standard or similar provision.
0.0.0. Xx addition, at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to any guarantors of any Leases with Major Tenants, Sellers shall, upon Buyer’s request, request a reaffirmation from such guarantor in the sameforms delivered by Buyer to Sellers, subject to such modifications as Sellers may reasonably require; provided, however, that receipt of any such reaffirmation shall not be required in order for an estoppel to be an acceptable Estoppel Certificate for purposes of satisfying the Estoppel Certificate Requirement under Section 4.6.3 above and shall not otherwise be a condition to the obligations of Buyer hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Franklin Street Properties Corp /Ma/)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either Tenant Estoppel Certificates substantially in the form of EXHIBIT Exhibit D or in the form required executed by a tenant's Lease"Wild Oats" and Childtime Children Center and by Tenants, dated not earlier than ten which together with Wild Oats and Childtime Children Center, represent at least ninety percent (1090%) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more square feet of space in the Improvements (a collectively, the "TENANT ESTOPPELTenant Estoppel Certificates"), ) together with Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property Estoppel Certificates (herein so called) substantially in the form of EXHIBIT Exhibit D or with respect to any Lease not covered by a Tenant Estoppel Certificate, provided that in the form required by a tenant's LeaseSeller Estoppel Certificate, appropriately modified the representation in subpart (f) (as to reflect that they are certificates of Seller Tenant defaults) and made subpart (g) shall be given to Seller's knowledge; hereinafterand as to the representation in subpart (f) regarding Landlord defaults, Seller shall represent that it has not received written notice from the "SELLER'S ESTOPPEL CERTIFICATE") Tenant and otherwise has no actual knowledge of a Landlord default under the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5Lease. In the event that (x) Seller is unable to deliver the requisite number of Tenant Estoppel Certificates substantially in the form of Exhibit D or (y) with respect to any Lease not covered by a Tenant Estoppel contains Certificate, Purchaser has knowledge of facts or disputes at variance in any material respect from those required to be certified in a material exception Tenant Estoppel Certificate or qualification or alleges a material of any alleged default by Seller (collectivelyunder the Lease, a "MATERIAL DEFAULT")then Purchaser may, subject to the following provisions of this Section 7.4.5), Purchaser's as its sole and exclusive remedy shall be to remedy, terminate this Agreement by delivering written notice thereof in writing to Seller, on whereupon the earlier of five (5) business days after the date of delivery Earnxxx Xxxey shall be returned to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation further obligations hereunder other than as may be expressly provided except for in this AgreementSurviving Obligations. Notwithstanding the foregoingPrior to any such termination, Purchaser shall not give Seller written notice of any such material variance or alleged default, and Seller shall have the right to terminate this Agreement if Tenant Estoppel(sfor a period of seven (7) allege Material Default(s) if (x) days following such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of remedy or cure such Tenant Estoppel variation or default to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined reasonable satisfaction. Any representation made by Seller in a Seller Estoppel Certificate shall be treated as a representation made by Seller in Section 5.4(a) of the Agreement and Purchaser, shall be subject to all of the limitations provided in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameSection 5.4(b) of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Murray Income Properties I LTD)
Tenant Estoppel Certificates. (a) Seller agrees from Tenant estoppel certificates for the benefit of Purchaser and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effectits lenders, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form delivered by the applicable tenant to Bank of EXHIBIT D or America, N.A. in the form required by 2013 (or, if a tenant's Lease’s Lease specifies or contemplates another form of tenant estoppel certificate, dated not earlier than ten then such other specified or contemplated form), executed by (10a) business days prior to the Closing DateWal-Mart Stores Texas, be delivered to Purchaser no later than five LP, (5b) business days before Closing from Walgreen Co., (c) all tenants under the Leases occupyingexceeding 5,000 square feet, in the aggregate, and (d) other tenants occupying not less than 7585% of the rentable leased square foot area in the Improvements (including the space leased to Wal-Mart Stores Texas, LP, Walgreen Co. and all tenants exceeding 5,000 square feet). Seller shall prepare the initial drafts of such estoppel certificates and submit the same to Purchaser, on or before May 20, 2013, for its review and approval, which approval shall be granted or denied within three (3) Business Days after receipt thereof, such approval not to be unreasonably withheld, conditioned or delayed. In the event Purchaser shall fail to notify Seller within such three (3) Business Day period of the Propertyrejection of any of the same, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), the same shall be deemed approved by Purchaser for delivery to the tenants. Seller agrees to use good faith commercially reasonable efforts to obtain such Tenant Estoppelstenant estoppel certificates from each tenant to which space in the Improvements is leased, provided however, but Seller shall not be obligated to pay expend any funds in connection with obtaining any such tenant estoppel certificates, and the failure of Seller to obtain any such tenant estoppel certificates shall not be a breach or default hereunder. Seller shall deliver via e-mail to Purchaser executed estoppels it receives from the tenants in order within two (2) Business Days after receipt thereof. Executed estoppels shall be deemed acceptable to do soPurchaser and shall apply toward the number of estoppels required above if such estoppel is dated not earlier than the date sixty (60) days prior to Closing and the applicable tenant does not allege any default by the landlord under its Lease and confirms the material business terms of its Lease. Notwithstanding anything herein to the foregoingcontrary, if Seller is unable to deliver the number of estoppel certificates referred to in the first sentence of this Section 7.3.7 in form acceptable to Purchaser, as provided in the preceding sentence, then Seller may, at its sole election, extend the Closing Date to two Business Days after Seller delivers such Tenant Estoppels from tenants occupying at least 60% tenant estoppel certificates (but in no event shall the Closing Date be so extended for more than sixteen (16) days). Notwithstanding anything herein to the contrary, if Seller remains unable to deliver such estoppel certificates by the extended Closing Date, then Purchaser’s sole remedies and recourses shall be limited to either (1) waive the requirement for the tenant estoppel certificate(s) in question and proceed to Closing without reduction of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after ClosingPurchase Price, or (b2) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing immediate notification to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shallthe Exxxxxx Money shall be immediately returned to Purchaser and the parties hereto shall have no further rights or obligations hereunder, at or before other than those that by their terms survive the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sametermination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Phillips Edison - ARC Shopping Center REIT Inc.)
Tenant Estoppel Certificates. Seller shall use commercially reasonable efforts to (a) prepare, or cause to be prepared, and deliver to Purchaser for review and approval, within three (3) Business Days following the date hereof, the estoppel certificates in substantially the form of Exhibit D attached hereto (each, a “Tenant Estoppel Certificate”, and collectively, the “Tenant Estoppel Certificates”), and (b) remit, or cause to be remitted, the Tenant Estoppel Certificates to the tenants identified on Exhibit C attached hereto and made a part hereof (collectively, the “Required Tenants”) for signature within two (2) Business Days following Purchaser’s written notice to Seller agrees that Purchaser has approved the Tenant Estoppel Certificates (which notice shall set forth any required corrections). If Purchaser fails to notify Seller of its approval of, or any changes to, the Tenant Estoppel Certificates it receives from and after Seller for approval within two (2) Business Days following Purchaser’s receipt of the Assumption Approval same, Seller may forward such Tenant Estoppel Certificates to the tenants without Purchaser’s prior approval. Subject to the further provisions of this Section 4.3, receipt of Tenant Estoppel Certificates substantially in the form prescribed above or as set forth in Section 9.1 provided below (i) from the Required Tenants and provided this Agreement is in full force (ii) from a sufficient number of other tenants occupying space at the Property such that Tenant Estoppel Certificates (x) shall have been received pursuant to clauses (i) and effect, within five (5ii) business days after being requested by Purchaser hereof with respect to do so, to deliver to all tenants not less than eighty percent (80%) of the total net rentable square footage of the Property covered by the Leases in effect as of the Scheduled Closing Date, (y) not disclosing the existence of any material uncured default under the leases referred to therein and (z) confirming the information contained in the Tenant Estoppel Certificate delivered to Purchaser for approval, shall be a request for an estoppel certificate condition precedent to Purchaser’s obligation to purchase the Property hereunder. Seller shall promptly, following receipt of the same, deliver copies of the completed Tenant Estoppel Certificates to Purchaser. Seller shall use commercially reasonable efforts (and, as used in this Agreement, commercially reasonable efforts shall not be deemed to include any obligation to institute legal proceedings, deliver notices of default or to expend any monies) to obtain executed Tenant Estoppel Certificates. Notwithstanding the foregoing, any Tenant Estoppel Certificate that is in the form, if any, prescribed in the applicable lease or other operative document or that is in any form which does not materially vary from the representations made in the form of EXHIBIT Tenant Estoppel Certificate in Exhibit D attached hereto(as modified to make the statement contained therein factually correct) shall be deemed to be a satisfactory Tenant Estoppel Certificate for all purposes under this Agreement, which form may be revised if so requested provided that such Tenant Estoppel Certificate does not disclose any material uncured default under the leases referred to therein and, to the extent required by the Existing Lenderterms of such tenant’s lease, confirms the information contained in the Tenant Estoppel Certificate delivered to Purchaser for approval. The parties agree thatSeller agrees that upon its receipt of a form subordination, subject non-disturbance and attornment agreement (an “SNDA”) from Purchaser or its lender, Seller shall promptly send such SNDAs to the provisions of subparagraph tenants, and shall use commercially reasonable efforts (b) belowand, it as used in this Agreement, commercially reasonable efforts shall not be a condition deemed to Purchaser's include any obligation to close under this Agreement that an estoppel certificate either substantially in institute legal proceedings, deliver notices of default or to expend any monies) to obtain the form of EXHIBIT D or in SNDAs, signed by the form required by a tenant's Leasetenants, dated not earlier than ten (10) business days prior to the Closing Date; provided, be delivered to however, that Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% acknowledges and agrees that receipt of any or all of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller SNDAs shall not be obligated a condition precedent to pay tenants in order Purchaser’s obligation to do sopurchase the Property. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% the delivery of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially SNDA by Xxx Xxxxxx LLP in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications Exhibit M attached hereto shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel condition precedent to Purchaser), at Seller's option (but Seller shall have no obligation), ’s obligation to cure consummate the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sametransactions contemplated hereby.
Appears in 1 contract
Samples: Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Tenant Estoppel Certificates. Subject to the following provisions of this Paragraph 7.2, Buyer shall have received estoppel certificates (a“Tenant Estoppel Certificates”), within the time frames set forth below, duly executed by tenants (and/or Seller, as applicable, as further set forth below) Seller agrees such that Buyer shall have received Tenant Estoppel Certificates from and after receipt tenants (and/or Seller, as applicable) under Leases accounting for at least sixty-five percent (65%) of the Assumption Approval Leased Rentable Square Footage (as set forth in Section 9.1 and provided this Agreement is in full force and effectdefined below), within five including Tenant Estoppel Certificates (5as part of the foregoing Tenant Estoppel Certificates) business days after being requested by Purchaser from all the following tenants at the Property (or their successors or assigns, if applicable) (collectively, the “Major Tenants”) (but only to do so, to deliver to all the extent such Major Tenants are then tenants of the Property a request for an estoppel certificate in Property, under Leases at the form Property, as of EXHIBIT D attached heretothe Estoppel Delivery Date, which form may be revised if so requested by the Existing Lender. The parties agree thatas defined below): Mxxxxx, Pxxxxx & Gxxxxxx LLP; MCI Communications Services, Inc., dba Verizon Business Services (“Verizon”) (subject to the provisions of subparagraph Non-Objectionable Information, as defined below); Quest Communications; and Cxxxxxx, Xxxxxx & Co. The “Leased Rentable Square Footage” is defined as the leased rentable square footage in the space in the Building, other than the space covered by the Final CRG Lease (b) as defined in Paragraph 22.22 below). It is understood by Buyer that Tenant Estoppel Certificates shall in no event be required from CRG (as defined in Paragraph 22.22 below), it and shall in no event be required with respect to the space covered by the Final CRG Lease (and neither such space, nor the occupants/licensees/tenants with respect thereto, shall be a condition to Purchaser's obligation to close required or considered under this Agreement that an estoppel certificate either Paragraph 7.2). The Tenant Estoppel Certificates shall be substantially in the form of EXHIBIT D Exhibit F or substantially in such other form which a particular tenant is required to execute pursuant to its Lease. In an attempt to comply with its obligations under the last sentence of this Paragraph 7.2, Seller agrees to request a Tenant Estoppel Certificate (in the form required of Exhibit F) from each of the tenants under the Leases relating to the Leased Rentable Square Footage, provided that Tenant Estoppel Certificates from all such tenants shall not be required, and the remaining provisions of this Paragraph 7.2 shall not be affected by a tenant's Leasethis sentence. To the extent received by Seller, dated not earlier Seller shall deliver the original executed Tenant Estoppel Certificates to Buyer no later than ten the date (10the "Estoppel Delivery Date”) that is three (3) business days prior to the Closing DateClose of Escrow (but Seller shall deliver to Buyer any executed Tenant Estoppel Certificates received by Seller from tenants within two (2) business days of such receipt); provided, be delivered however, if Seller is unable to Purchaser deliver timely to Buyer the appropriate number of Tenant Estoppel Certificates executed by tenants, Seller may, but without any obligation to do so, deliver to Buyer no later than five (5) business days before Closing from tenants under the Leases occupyingEstoppel Delivery Date, in lieu thereof, the aggregatenecessary number of Tenant Estoppel Certificates executed by Seller (each, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"“Seller Estoppel”), Seller agrees in substantially the form attached hereto as Exhibit “F-1” to use good faith efforts to obtain such Tenant Estoppelsmeet the 65% figure set forth above; provided, provided however, Seller Buyer shall not be obligated required to pay tenants in order accept any Seller Estoppels to do so. Notwithstanding the foregoing, if at Closing extent they are executed by Seller delivers such Tenant Estoppels from tenants occupying at least 60% on behalf of any of the Major Tenants, or to the extent the leased rentable area square footage of the Property, Building covered by the Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% Estoppels exceeds ten percent (10%) of the leased rentable area of the Property (substantially square footage in the form Building. Seller Estoppels shall be deemed executed by the applicable tenant(s) for purposes of EXHIBIT D or t he 65% figure set forth above, but shall be subject to the limitations contained in Paragraphs 13 and 22.15 and shall be deemed automatically null and void upon the form required by a tenant's Lease, appropriately modified to reflect that they are certificates delivery of Seller and made to Seller's knowledge; hereinafter, any Tenant Estoppel Certificate from the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom the Seller Estoppel was delivered a Seller's Estoppel Certificate.
(b) The parties agree that each so long as such Tenant Estoppel containing non-Certificate is not at variance in any material exceptions, qualifications or modifications respect with the applicable Seller Estoppel. Buyer shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller have three (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (53) business days after the receipt of each such executed Tenant Estoppel Certificate (or Seller Estoppel, as applicable) to approve or reasonably disapprove the applicable Tenant Estoppel Certificate (or Seller Estoppel, as applicable) so received (and failure to timely disapprove shall constitute approval); provided, however, notwithstanding the foregoing, Buyer may only disapprove an executed Tenant Estoppel Certificate (or Seller Estoppel, as applicable) if it (a) discloses material adverse economic terms of the applicable Lease (in the form delivered by Seller to Buyer) that were not disclosed to Buyer in writing (whether in the applicable Lease or any other document delivered to Buyer) prior to the Execution Date, (b) alleges a material default of Seller, as landlord, under such applicable Lease, (c) discloses a material dispute between the landlord and tenant in connection with such applicable Lease or discloses a material tenant default under such applicable Lease, (d) with respect to any Lease in full force and effect as of the date of delivery this Agreement and set forth on the Rent Roll attached hereto as Exhibit J, discloses a material inconsistency (that had not otherwise been disclosed to Purchaser Buyer in writing prior to the Execution Date) between the information for that Lease in the Rent Roll and the corresponding information in the applicable Tenant Estoppel Certificate (or Seller Estoppel, as applicable), other than simply a change in tenant as a result of an assignment or other transfer permitted under the applicable Lease, or (e) discloses that a tenant alleges (i) an unexpired right of first refusal or right of first offer to purchase the Property (a “ROFR”), or any portion thereof, or unexpired option to purchase the Property (a “Purchase Option”), or any portion thereof, in favor of such tenant, and (ii) that the ROFR or Purchase Option, as applicable, is operative and may be exercised as a result of the transactions contemplated by this Agreement. If Buyer reasonably disapproves any Tenant Estoppel Certificate (or Seller Estoppel, as applicable) as set forth above, Seller shall have until the Closing Date to deliver such Tenant Estoppel Certificate (or Seller Estoppel, as applicable) in a form which is reasonably acceptable to Buyer (provided that Buyer may only disapprove an executed Tenant Estoppel Certificate, or Seller Estoppel, as applicable, for the reasons set forth in (a), (b), (c), (d) and (e) of this paragraph above; otherwise the applicable Tenant Estoppel Certificate, or Seller Estoppel, as applicable, shall be deemed acceptable to and approved by Buyer; without limiting the foregoing, (1) Buyer shall not have any right to disapprove a Tenant Estoppel alleging a Material Default or Certificate on the Closing Date basis of any disclosure therein of the dispute described on Schedule 7.2 attached hereto (the "ESTOPPEL TERMINATION NOTICE"Non-Objectionable Information”), time being of the essence as and (2) notwithstanding anything to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Noticecontrary, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller Buyer shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing rights or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit claims against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit whatsoever with respect to the sameNon-Objectionable Information; and the provisions of this sentence and the following sentence shall survive the Close of Escrow, or any termination of this Agreement, and shall not be merged with the Deed. On and after the Close of Escrow, Buyer shall indemnify, defend and hold Seller and its officers, members, partners, directors, shareholders, participants, affiliates, managers, representatives and agents free and harmless from and against any and all claims, costs, losses, liabilities, damages and expenses arising out of or resulting from any claim or action by or on behalf of the tenant under the subject lease (or its affiliates, successors or assigns), as referenced under Schedule 7.2 attached hereto in connection with the Non-Objectionable Information. Subject to the last paragraph of this Paragraph 7, Seller shall use commercially reasonable efforts to satisfy the condition to Buyer’s obligation to close set forth in this Paragraph 7.2.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hines Real Estate Investment Trust Inc)
Tenant Estoppel Certificates. (a) Seller agrees shall use commercially reasonable efforts to obtain estoppel certificates directly from each and after receipt every tenant of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing LenderProject. The parties agree that, subject to the provisions of subparagraph (b) below, it It shall be a condition to Purchaser's of Buyer’s obligation to close under this Agreement title hereunder that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than at least five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided howeverClosing, Seller shall have delivered executed and currently dated (no earlier than thirty (30) days prior to the scheduled Closing Date) estoppel certificates in material conformance with the form attached hereto as Exhibit 8.1(a)-Tenant Estoppel Certificate from (i) each Major Tenant (defined below), and (ii) from tenants whose leases together with the leases of the Major Tenants represent at least eighty-two and one half percent (82½ %) of the aggregate rental revenue of the Project determined on an annualized basis. Notwithstanding the immediately preceding sentence, Seller may deliver a Seller’s estoppel certificate (“Seller Estoppel”) in the form attached hereto as Exhibit 8.1(b)-Seller Estoppel Certificate for any tenant (other than any Major Tenant) not providing an estoppel certificate directly, provided that Seller Estoppels may not be obligated delivered for leases representing more than five percent (5%) of the aggregate rental revenue of the Project such that the sum of the amount of the aggregate rental revenue of the Project covered by estoppel certificates delivered by Tenants and covered by the Seller’s estoppels shall be at least equal to pay tenants eighty-two and one half percent (82½ %) of the aggregate rental revenue of the Project determined on an annualized basis, in order which case the required tenant estoppels will be deemed to do sohave been obtained. “Major Tenants” means each of the following: (i) Xxxxxxx & Xxxxxxxx, (ii) Combined Insurance, (iii) Xxxxx Xxxxxx Communications, (iv) Monitor Company, and (v) Bankers Insurance. Executed estoppel certificates received by Buyer and currently dated (no earlier than forty-five (45) days prior to the scheduled Closing Date) shall be deemed acceptable unless Buyer objects to such estoppel certificate upon the earlier of: (i) five (5) business days of actual receipt or (ii) Closing. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains ’s lease provides for a different standard for an estoppel certificate from a tenant for whom certificate, delivery of an estoppel in compliance therewith by Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate compliance herewith with respect to such tenants tenant estoppel. Buyer further hereby agrees that knowledge qualifications by the tenant regarding landlord’s actions under subsections (g) and (yh) Seller elects (by written notice shall be deemed acceptable modifications to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such a tenant estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samecertificate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Parkway Properties Inc)
Tenant Estoppel Certificates. On or before the Closing, Buyer shall have received estoppel certificates (acollectively, "Estoppel Certificates" and individually, an "Estoppel Certificate") reasonably satisfactory to Buyer, which Seller agrees from shall use its good faith efforts to obtain, duly executed by Broadcast Microwave Services, Inc., Alex Machining Corporation and Sirius Acquisition, LLC (the "Existing Tenants"), dated not earlier than forty-five (45) days prior to the original Closing Date set forth in this Agreement (i.e., without extension thereof). The Estoppel Certificates shall be in the form of Exhibit "G" attached hereto or such other form as is required by or is otherwise consistent in all material respects with the requirements of the applicable Lease. Seller shall deliver to Buyer, for Buyer's approval, executed Estoppel Certificates promptly after Seller's receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, same. Buyer's failure to disapprove an executed Estoppel Certificate within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to PurchaserBusiness Days following Buyer's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications receipt thereof shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectivelyconstitute Buyer's approval thereof; provided, a "MATERIAL DEFAULT")however, subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser that Buyer shall not have the right to disapprove an executed Estoppel Certificate satisfying the criteria above (or terminate this Agreement if Tenant Estoppel(sbased thereon after the Contingency Date) allege Material Default(sunless it: (a) if discloses material adverse economic terms of the applicable Lease that were not disclosed to Buyer (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 whether in the aggregate for all such Tenant Estoppel(sapplicable Lease, this Agreement or any other document delivered to Buyer) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or date which is five (5) Business Days prior to the expiration of the Property Approval Period, (b) alleges a material default of Seller (as landlord) under the applicable Lease, (c) discloses a material dispute between the Seller (as landlord) and the Tenant in connection with the applicable Lease, or (d) contains any material adverse modification or qualification or the insertion therein of any other materially adverse information by the Tenant; provided, however, and notwithstanding the foregoing, Buyer shall not have the right to disapprove any Estoppel Certificate or to terminate this Agreement after the expiration of the Property Approval Period based upon (i) any matter disclosed in writing to Buyer prior to the date which is five (5) Business Days prior to the expiration of the Property Approval Period, or (ii) any matter disclosed in writing to Buyer after the Property Approval Period which is not disapproved in writing by Buyer to Seller within five (5) Business Days after Buyer receives written notice thereof (which disapproval notice shall constitute Buyer's election to terminate this Agreement). If Seller has been unable to timely obtain an Estoppel Certificate from a Tenant as provided herein, Seller may deliver its own certificate to Buyer ("Seller's Lease Certificate") in the form attached hereto as Exhibit "H" for such Tenants that did not deliver an Estoppel Certificate so as to provide Estoppel Certificates and Seller Lease Certificates that, taken together, shall satisfy this condition. In the event that after delivery of a Seller's Lease Certificate Seller receives an Estoppel Certificate from any Tenant for whom Seller previously delivered a Seller's Lease Certificate, Seller may deliver such Estoppel Certificate to Buyer and the corresponding Seller's Lease Certificate shall be automatically canceled upon Buyer's approval thereof (with Buyer's right to disapprove such Estoppel Certificate governed by the provisions set forth above). The immediately preceding sentence shall survive the Close of Escrow. Notwithstanding the foregoing, Buyer shall not be required to accept Seller's Lease Certificates for more than twenty (20%) of the leased rentable square footage of the Property or any Tenant occupying more than 50,000 rentable square feet at the Property. In addition, Seller will reasonably cooperate with Buyer and Buyer's lender, at no cost to Seller, to deliver to all Tenants a Subordination, Non-Disturbance and Attornment Agreement ("SNDAs"), in the form required by Buyer's lender in connection with its acquisition of the Property. The failure of Buyer or Buyer's lender to obtain an executed SNDAs shall not be a contingency to the Closing and shall not extend the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Tenant Estoppel Certificates. Prior to the date of this Amendment, Seller has delivered to Buyer copies of all Tenant Estoppel Certificates received by Seller as of September 15, 2010 (a) Seller agrees from and after receipt collectively, the “Delivered Estoppels”). If Buyer determines that the Delivered Estoppels do not satisfy the requirements of Section 4.1.3 of the Assumption Approval as set forth Agreement, Buyer will, on or before 5:00 p.m. Dallas, Texas time, on September 24, 2010, notify Seller in Section 9.1 and provided this Agreement is writing specifying in full force and effect, within five (5reasonable detail the reason(s) business days after being requested by Purchaser to do so, to deliver to all tenants why Buyer believes that any of the Property a request for an estoppel certificate in Delivered Estoppels do not satisfy the form requirements of EXHIBIT D attached heretoSection 4.1.3 of the Agreement (the “Estoppel Objection Notice”). If Buyer fails to timely deliver the Estoppel Objection Notice to Seller, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it then Buyer shall be a condition deemed to Purchaser's obligation have waived Section 4.1.3 of the Agreement and thereafter shall proceed to close under this Agreement that an estoppel certificate either substantially in accordance with the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% terms of the rentable area of Agreement, as amended by this Amendment. If Buyer timely delivers the PropertyEstoppel Objection Notice, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL")then Seller may, Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller but shall not be obligated to, attempt to pay tenants address the matters set forth in order the Estoppel Objection Notice to do sothe reasonable satisfaction of Buyer. Notwithstanding If Seller fails to address the foregoingmatters set forth in the Estoppel Objection Notice to the reasonable satisfaction of Buyer on or before 5:00 p.m. Dallas, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the PropertyTexas time, Seller may execute and deliver to Purchaseron September 30, 2010, then Buyer will on or before 5:00 p.m. Dallas, Texas time, on October 1, 2010, at ClosingBuyer’s option, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of either (a) one hundred elect to cancel this Agreement, in which case the Deposit shall be forthwith returned to Buyer and eighty (180) days after ClosingBuyer and Seller shall be relieved, as to each other, of all obligations under this Agreement, except as otherwise provided in this Agreement; or (b) elect to accept the date Purchaser obtains an estoppel certificate from a tenant for whom Delivered Estoppels without objection by confirming in writing that the requirements of Section 4.1.3 of the Agreement have been satisfied (the “Confirmation Notice”), and thereafter proceed to close in accordance with the terms of the Agreement, as amended by this Amendment. If Buyer does not give Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptionsthe Confirmation Notice within the time period set forth above, qualifications or modifications then Buyer shall be deemed to be an acceptable estoppel certificate for purposes have elected to cancel this Agreement pursuant to the terms of subparagraph (a) of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameSection.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Tenant Estoppel Certificates. At least one (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (51) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days day prior to the Closing Date, be delivered receipt of estoppel certificates (“Tenant Estoppel Certificates”) from each tenant at the Property listed on Exhibit R (each such tenant, a “Major Tenant”) and from at least seventy percent (70%) by square footage of the space occupied by tenants at the Property who are not Major Tenants. Seller shall use commercially reasonable efforts to Purchaser no later than five obtain all Tenant Estoppel Certificates. Prior to sending out to tenants any Tenant Estoppel Certificate, Seller shall provide to Buyer copies of such Tenant Estoppel Certificates. Buyer shall have two (52) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain confirm that such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or Estoppel Certificate is in the form required by a tenant's Leasethis Agreement. If Buyer shall fail to respond within such two (2) business day time frame, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinaftersuch Tenant Estoppel Certificate shall be deemed approved by Buyer. Except as otherwise provided herein, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel Certificate shall be dated not earlier than November 17, 2015 and shall be substantially in the form attached to Exhibit Q-1 subject to the applicable tenant's reasonable changes and other market changes and qualifications, including, without limitation, changes to comply with the estoppel requirements in the Tenant Leases (it being acknowledged and agreed that if a Tenant Lease provides for an estoppel 32 certificate containing non-material exceptionscertain specified items and such other items as a party may “reasonably require”, qualifications or modifications then the delivery by the tenant under such Tenant Lease without any items other than the specified items shall be deemed to be the delivery of an acceptable estoppel certificate in compliance with the terms of such Tenant Lease), or in the form, if any, prescribed in the applicable Tenant Lease or other operative document (or, if the tenant is a national tenant, the form may also be the standard form generally used by such tenant). In addition, (i) those provisions of the applicable Tenant Estoppel Certificates respecting defaults, defenses, disputes, claims, offsets, abatements, concessions and recaptures against rent and other charges may be limited to the knowledge of the applicable tenant and shall constitute a reasonable change for purposes of this Section 7.4.5. In the event foregoing sentence, (ii) the failure of any guarantor to sign a Tenant Estoppel contains Certificate shall be deemed a reasonable change for the purposes of the foregoing sentence. Seller’s sole obligation hereunder shall be to utilize commercially reasonable efforts to obtain Tenant Estoppel Certificates from each tenant (and, as used in this Agreement, commercially reasonable efforts shall not include any obligation to institute legal proceedings or to expend any monies). Seller shall deliver to Buyer all Tenant Estoppel Certificates it receives promptly after receipt. If on or before two (2) business day prior to the Closing Date, such condition is not satisfied (or waived by Buyer), then this Agreement shall terminate (and no party hereto shall have any further obligation in connection herewith except under those provisions that expressly survive a termination of this Agreement); provided, however, that Seller shall have the unilateral right (at its option) to extend the period for satisfying such condition (and, accordingly, the Closing Date) to a date not later than thirty (30) days following the original Closing Date in order to satisfy such condition and to minimize interest and other charges payable in connection with the prepayment at Closing of any financing encumbering Seller’s interest in the Property. Without limitation on the foregoing, if any Tenant Estoppel Certificate (i) discloses matters materially adverse to the Property (as reasonably determined by Buyer and described in written notice delivered to Seller, if at all, within two (2) business days from Buyer’s receipt of such Tenant Estoppel Certificate), (ii) omits material exception information required to be provided in a Tenant Estoppel Certificate; or qualification or alleges (iii) discloses matters that constitute a material default by Seller under the applicable Tenant Lease, and, in each case, which are not cured or satisfied by Seller (collectively, a "MATERIAL DEFAULT"), subject at Seller’s sole discretion without obligation to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, do so) on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or before the Closing Date (provided, however, that if Seller elects to cure or satisfy the "ESTOPPEL TERMINATION NOTICE"same, the Closing Date shall be extended for a reasonable period of time, not to exceed fifteen (15) days, to allow for such cure or satisfaction), time being of the essence then as to the giving of such notice. If Purchaser its sole remedy hereunder Buyer shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement on or before the Closing Date (and, if Tenant Estoppel(sBuyer so terminates this Agreement, then no party hereto shall have any further obligation in connection herewith except under those provisions that expressly survive a termination of this Agreement, and in which case the Deposit (minus the Independent Consideration) allege Material Default(s) if (x) such Material Default(s) can shall be remedied refunded to Buyer by the performance of work costing not more than $50,000 Title Company). If Buyer fails to provide written notice to Seller as described in the aggregate for all such immediately preceding sentence with respect to a Tenant Estoppel(s) or Estoppel Certificate, Buyer shall be deemed to have waived the payment of money not exceeding $50,000 condition contained in the aggregate this Section with respect to such Tenant Estoppel Certificate. Notwithstanding anything to the contrary herein, in the event Seller is unable to obtain a Tenant Estoppel Certificate from any particular tenant under any Tenant Lease or if any tenant makes an affirmative statement that such tenant will not be providing a Tenant Estoppel Certificate, Seller may (but shall not be obligated to): (1) if such tenant is not a Major Tenant, and for not more than fifteen percent (15%) of the leased square footage by tenants at the Property who are not Major Tenants, deliver to Buyer on the Closing Date a certificate (the “Seller Tenant Certificate”) in the applicable form attached as Exhibit Q-2 executed by Seller, certifying that the information set forth 33 in the Tenant Estoppel Certificate prepared for such tenant, to “Seller’s knowledge” (as defined in Section 8B), is correct in all material respects, and in such event, Buyer shall be deemed to have received a Tenant Estoppel Certificate with respect to such tenant for purposes of satisfying the condition under this Section 10B(3); or (y2) give written notice to Buyer stating that Seller elects has not obtained such Tenant Estoppel Certificate (together with a copy of the certificate, if any, Seller has obtained from such Tenant), in which event Buyer may terminate this Agreement by written notice to Purchaser given simultaneously Seller at any time prior to the earlier to occur of the Closing Date or three (3) days after receipt of Seller’s notice and if Buyer fails to terminate within such period, Buyer shall be deemed to have waived the condition contained in this Section with Seller's delivery of respect to such Tenant Estoppel Certificate. Any Seller Tenant Certificate shall be subject to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter limitations set forth in such estoppel by either performing or causing to Sections 8, 9 and 11B of this Agreement. In addition, Seller shall be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit released from any liability with respect to any Seller Tenant Certificate upon the samedelivery to Buyer of a Tenant Estoppel Certificate from the tenant for which Seller has delivered such Seller Tenant Certificate (but only to the extent such Tenant Estoppel Certificate is consistent with such Seller Tenant Certificate).
Appears in 1 contract
Samples: Purchase Agreement
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt Receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, certificates dated not earlier more than ten (10) business 60 days prior to the Closing Date, or not more than 90 days prior to the Closing Date if the same is extended pursuant to Paragraph 5 of this Agreement, from a sufficient number those certain tenants in the mall shop premises at the Property having lease terms equal to or in excess of one year so that estoppel certificates from such tenants shall be received with respect to not less than 80% of the gross leased area, in the aggregate (which shall include estoppel certificates from all such tenants individually occupying over 10,000 square feet of space in the Property), covered by such leases respecting the mall shop premises at the Property in effect as of the date hereof, is a condition precedent to Buyer's obligation to purchase the Property hereunder. Estoppel certificate from each such tenant shall be substantially in the form of Exhibit "E-1" attached hereto and made a part hereof; provided, however, with respect to the any major national tenant, the applicable estoppel certificate may be in the standard form otherwise required by such entity or, if applicable tenant lease prescribes the content or required form of estoppel certificate, then such content or required form shall be deemed acceptable. In addition, those provisions of the applicable estoppel certificates respecting defaults, defenses, disputes, claims, offsets, abatements, concessions and recaptures against rent or other charges may be limited to the knowledge of the applicable tenant. Seller's shall be obligated to utilize reasonable efforts to obtain such estoppel certificates (such reasonable efforts obligation not including any obligation to institute legal proceedings or to expend any monies therefor, other than for minor administrative charges, whether imposed by tenants or incurred by Seller or imposed on Seller pursuant to an applicable lease). Buyer shall have the option to waive the condition precedent set forth herein by notice to Seller (whereupon such condition will be deemed satisfied). In the event that prior to the Closing Date such condition is not satisfied (or waived as aforesaid), the obligations of Seller to sell, and Buyer to purchase, the Property hereunder shall terminate. Notwithstanding anything to the contrary in this Agreement, in the event Seller is unable to obtain an estoppel certificate from any particular tenant of the Property, Seller shall have the right (but not the obligation) to deliver to Buyer on the Closing Date a certificate (the "Seller Tenant Certificate") in the applicable form attached as Exhibit "E- 2" executed by Seller, certifying that the information set forth in the estoppel certificate prepared for such tenant, to "Seller's knowledge" (as defined in subparagraph 7B), is correct in all material respects, and in such event, Seller shall be deemed to have delivered an estoppel certificate with respect to Purchaser no later than five (5) business days before Closing from tenants such tenant for purposes of satisfying the condition under the Leases occupyingthis subparagraph 4E, provided that Buyer shall not be obligated to accept Seller Tenant Certificates covering, in the aggregate, not less more than 75% forty percent (40%) of the rentable of the gross leased area of the Property, including all tenants occupying at least a full floor or more . Any Seller Tenant Certificate shall be subject to the limitations set forth in subparagraph 7C and subparagraph 9B of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided howeverthis Agreement. In addition, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels released from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate any liability with respect to tenants occupying up any Seller Tenant Certificate upon the delivery to an additional 15% Buyer of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a the tenant for whom which Seller has delivered a Seller's Estoppel Certificate.
such Seller Tenant Certificate (b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed but only to be an acceptable the extent such estoppel certificate for purposes of this Section 7.4.5. In the event a is consistent with such Seller Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"Certificate), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Tenant Estoppel Certificates. Seller shall request from each of the tenants at the Property, and promptly deliver to Buyer to the extent received, estoppel certificates (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT Exhibit D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph hereto or (b) belowin such form as is permitted by any tenant Lease (in either case, it an “Estoppel Certificate” or “Estoppel Certificates”). For purposes of this Agreement, the "Estoppel Certificate Requirement" shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially receipt by Buyer of Estoppel Certificates duly executed by tenants collectively representing at least seventy percent (70%) of the leased square footage of the Property, and in the form of EXHIBIT D or in the form required by a tenant's Leaseany event, dated not earlier more than ten forty-five (1045) business days prior to Closing. An Estoppel Certificate shall be deemed to satisfy the Estoppel Certificate Requirement notwithstanding the respective tenant's qualifying any statement or certification therein by a “best of knowledge” standard or similar provision and notwithstanding any other revisions thereon except to the extent the same are inconsistent with the Lease documents provided by Seller to Buyer and/or the representations of Seller contained herein. Seller may extend the Closing Date one (1) or more times, for up to forty-five (45) days in the aggregate, to satisfy the Estoppel Certificate Requirement. To the extent the Closing is extended pursuant to the terms of this Agreement or by the mutual agreement of Buyer and Seller, Buyer agrees to accept Estoppel Certificates dated more than forty-five (45) days prior to the extended Closing Date and shall not require Seller to obtain new Estoppel Certificates dated within forty-five (45) of the extended Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hartman Short Term Income Properties XX, Inc.)
Tenant Estoppel Certificates. On or before the Estoppel Delivery Deadline, Seller shall deliver to Buyer a fully completed and executed estoppel certificate from each of the Tenants (aeach, a “Tenant Estoppel Certificate”), each of which shall be dated effective no earlier than thirty (30) Calendar Days prior to the Closing Date. Seller agrees from that each Tenant Estoppel Certificate shall contain the same terms and after receipt be in the same form and substance as the form of certificate attached hereto as Exhibit “H” and incorporated herein by reference, and shall otherwise be in form and substance satisfactory to Buyer. Each Tenant Estoppel Certificate shall be duly executed by the applicable Tenant thereof and each guarantor of the Assumption Approval as set forth in Section 9.1 and provided this Agreement applicable Lease, if any. In the event Seller is in full force and effectable to obtain Tenant Estoppel Certificates from those Tenants representing the Minimum Tenant Square Footage Requirement on or before the Estoppel Delivery Deadline, within five (5) business days after being requested by Purchaser but Seller is not able to do soobtain Tenant Estoppel Certificates from all of the Tenants, to then Seller shall deliver to all tenants of Buyer, prior to the Property Estoppel Delivery Deadline, a request for an landlord estoppel certificate in the form of EXHIBIT D Exhibit “I,” attached heretohereto and incorporated herein by reference (each, a “Landlord Estoppel Certificate”), with respect to each Lease for which form a Tenant Estoppel Certificate has not been obtained in lieu of the Tenant Estoppel Certificate for such Lease. If Seller has not timely delivered a Tenant Estoppel Certificate from those Tenants representing the Minimum Tenant Square Footage Requirement, or alternatively, if Seller has timely delivered a Tenant Estoppel Certificate from those representing the Minimum Tenant Square Footage Requirement, but has not provided a Tenant Estoppel Certificate nor provided a Landlord Estoppel Certificate to Buyer with respect to any remaining Lease before the Estoppel Delivery Deadline, then, in such a case, Buyer may exercise one of the following options on or before the Closing Date: (1) waive the requirement to receive the Estoppel Certificates which Seller failed to deliver, continue this Agreement in effect without modification and purchase and acquire the Property in accordance with the terms and conditions of this Agreement; provided the Scheduled Closing Date shall automatically be revised if so requested by extended to the Existing Lender. The parties agree that, subject Extended Closing Date; or (2) terminate this Agreement and the Escrow pursuant to the provisions of subparagraph (bSection 8.5(a) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% hereof. Upon Buyer’s receipt of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafterEstoppel Certificates, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller Sections 5.1(g)(i) and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same(ii) shall apply.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Office Properties Trust, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note Xxxxxxx Money and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreementthe Surviving Obligations. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Midlantic Office Trust, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within Not less than five (5) business days after being requested by Purchaser prior to do sothe Scheduled Closing Date, Seller shall have obtained and delivered to deliver to all tenants of the Property Buyer duly executed estoppel certificates (each, a request for an estoppel certificate "Tenant Estoppel Certificate") substantially in the form of EXHIBIT D "9" attached hereto, or covering estoppel matters required under the respective tenant's lease, made in favor of Buyer, which form may shall be revised if so requested dated no earlier than the Effective Date and which shall contain no Material Objection Matter (as defined below), from: (a) the following tenants, to the extent that their leases have commenced and are still in effect as of Closing: (1) College of Intercultural Communications, Inc., (2) the State of Hawaii, and (3) Tissue Genesis, Inc., and (b) at least fifty percent (50%) of the remaining tenants under the Tenant Leases (the "Tenant Estoppel Certificate Condition"). For purposes of this Section 6(a)(iii), "Material Objection Matter" shall mean any omission or statement in or modification to a Tenant Estoppel Certificate which indicates any of the following: (A) that Seller is in default under a Tenant Lease, (B) that there is a change in any material financial or economic term of a Tenant Lease such that the same is materially inconsistent with the information in the Tenant Lease materials as included among the Due Diligence Items, or (C) any claims of right of first refusal, first offer, or rights of purchase not contained in the Tenant Lease. Buyer acknowledges that Seller's only obligation hereunder is to use commercially reasonable efforts to obtain such estoppel certificates subject to the terms of the Tenant Leases, and any failure of Seller to satisfy this condition prior to Closing shall not constitute a default under this Agreement. If the Tenant Estoppel Certificate Condition is not met by the Existing Lender. The parties agree thatScheduled Closing Date (as defined below), the Scheduled Closing Date shall be extended to the date that is five business days following the date that the Tenant Estoppel Certificate Condition is met, subject to the provisions of subparagraph (bSection 11(a) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificatehereof.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Office Properties Trust, Inc.)
Tenant Estoppel Certificates. The Seller Parties shall have delivered current (adated no earlier than the date of this Agreement) Seller agrees estoppel certificates from and after receipt tenants leasing sixty (60) percent of the Assumption Approval aggregate leased square footage of the Partnership Properties (other than the U.K. Properties). In order to qualify as set forth an estoppel certificate meeting the requirements of the foregoing condition, each estoppel certificate must (A) be in Section 9.1 a form that is either (i) substantially in the form attached hereto as Exhibit F; (ii) substantially similar to that provided for under the applicable lease; or (iii) in the case of a so-called “national tenant”, in the form customarily used by such national tenant and provided this Agreement (B) must not (i) allege the existence of any default by the applicable Partnership Subsidiary landlord, (ii) allege any unperformed obligation by the applicable Partnership Subsidiary landlord, or (iii) disclose the existence of any delinquent fixed rent, additional rent or other material charges payable by the relevant tenant, or other material default by the relevant tenants, not disclosed on Schedule 2.9(d)-B of the Seller Parties Disclosure Letter. The Seller Parties shall forward copies of the executed estoppels to Buyer as and when received (including any received after the minimum threshold has been met), provided, however, that the Seller Parties shall use commercially reasonable efforts to have obtained and delivered all of the requisite executed estoppel certificates for Buyer’s review no later than seven (7) Business Days prior to the Closing Date. Any estoppels meeting the requirements of the foregoing clause (B) shall be deemed approved by Buyer upon receipt. To the extent any estoppel is in full force and effectreceived by Buyer which does not meet the requirements of clause (B), unless Buyer gives notice to the Seller Parties objecting to an executed estoppel certificate within five (5) business days Business Days after being requested by Purchaser to do soreceipt of such estoppel certificate, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications Buyer shall be deemed to be an acceptable have approved such estoppel certificate for purposes of this Section 7.4.5. In (and the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), closing on the Partnership Interest Purchase shall be subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter matters set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samecertificate).
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Liberty Property Limited Partnership)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.elects
Appears in 1 contract
Samples: Purchase and Sale Agreement (Midlantic Office Trust, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Midlantic Office Trust, Inc.)
Tenant Estoppel Certificates. 11.1. Promptly after the Effective Date, Seller shall request, in writing, from each Tenant, and each any guarantor under any Lease Guaranty, an Estoppel Certificate in a form reasonably requested by Buyer, which shall be addressed to Buyer and shall be currently dated (a) Seller agrees collectively the "Estoppel Certificates").
11.2. The current standard form of Lease provides the following with respect to the obligation of a Tenant to, upon request, provide an Estoppel Certificate: "Tenant will, at any time and from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effecttime to time, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior of its receipt of written request by Landlord, at no cost or expense to Landlord, execute, acknowledge, and deliver to Landlord an Estoppel Certificate in such form as may be reasonably required by Landlord, such Certificate to be executed by Tenant certifying: (i) that this Lease is unmodified and in full effect if such is the case (or, if there have been modifications, that this Lease is in full effect as modified, and setting forth such modification), (ii) the Commencement Date of the Lease, (iii) the Expiration Date of the Lease, (iv) the dates to which the Rent has been paid, and (v) either stating that to the Closing Date, knowledge of Tenant no default exists hereunder or specifying each such default of which Tenant may have knowledge and such other matters as may be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% reasonably requested by Landlord; it being intended that any such statement by Tenant may be relied upon by any prospective purchaser or current or prospective mortgagee of the rentable area Project (or the portion thereof which includes the Premises)."
00.0. Xx the current actual knowledge of Seller, the PropertyEstoppel provision set out in Section 11.2, including above, is contained in all tenants occupying at least a full floor or more of space Leases without material modifications.
11.4. During Buyer's Examination Period (a "TENANT ESTOPPEL"defined below), Seller agrees to will use good faith its best efforts to obtain such secure from each Tenant Estoppelsa Tenant Estoppel Certificate in form reasonably requested by Buyer; provided, provided however, Seller shall if and to the extent that the "Required Estoppels" (as hereinafter defined) are not be obligated provided to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Buyer by Closing, its own certificate with respect then Buyer shall be entitled only to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of either (a) one hundred waive such requirement for the Required Estoppels and eighty (180) days after Closingproceed to Close, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice accordingly from Buyer to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), Seller at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying in which case the money on or prior Initial Xxxxxxx Money Payment, less One Hundred Dollars ($100.00) to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined be retained by Seller as consideration for this Agreement, and Purchaserthe Xxxxxxx Money Deposit will be refunded to Buyer and the parties shall have no further obligations under this Agreement except as to obligations which specifically are provided in this Agreement to survive termination of this Agreement.
11.4.1. For purposes of this Section 11.4, "Required Estoppels" shall mean the delivery to Buyer of Estoppel Certificates which do not disclose any facts objectionable to Buyer in its reasonable opinion, which event Seller shallCertificates shall be in form reasonably required by Buyer, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.from:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mack Cali Realty Corp)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within At least five (5) business days after being requested by Purchaser Business Days prior to do sothe Closing, to Seller shall deliver to all tenants of the Property a request for Purchaser an estoppel certificate in the form of EXHIBIT D attached hereto(each, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease“Estoppel Certificate”), dated not earlier no more than ten thirty (1030) business days prior to the Closing Dateand containing no information inconsistent with any of the representations and warranties made by the Seller in Section 6.1 hereof (the foregoing, be delivered the “Estoppel Condition”), duly executed by tenants of the Property having the right to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupyingoccupy, in the aggregate, not less than seventy-five percent (75% %) of the rentable area premises at the Real Property and Improvements subject to the Leases. Each Estoppel Certificate shall be substantially in the form as set forth on Exhibit I attached hereto, provided, however, that in the event that any tenant has agreed to execute an estoppel certificate pursuant to a specific form of estoppel as agreed upon in such tenant’s applicable Lease, Purchaser agrees that Seller’s delivery of an Estoppel Certificate from such tenant on such agreed upon form, as provided in such tenant’s Lease, shall constitute Seller’s compliance with the Propertyprovisions of this Section 3.7 with respect to such tenant (provided that any such certificate satisfies the Estoppel Condition). Seller shall deliver an Estoppel Certificate, including all tenants occupying in the form of Exhibit I to each tenant at least a full floor or more of space (a "TENANT ESTOPPEL"), the Property and shall request each tenant to execute and deliver an Estoppel Certificate. Provided Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided howevercomplies with the immediately proceeding sentence, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes in default of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate its obligations under this Agreement by delivering notice thereof in writing as a result of Seller’s failure to Sellerdeliver the requisite Estoppel Certificates as requested hereunder, on but such failure shall constitute the earlier of five (5) business days after the date of delivery to Purchaser failure of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as condition precedent pursuant to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(sSection 7.3(a) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samehereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Corporate Realty Income Fund I L P)
Tenant Estoppel Certificates. Receipt of estoppel certificates (each, a “Tenant Estoppel Certificate”, and collectively, the “Tenant Estoppel Certificates”) from (a) Seller agrees from the tenants identified on Exhibit C attached hereto and after receipt made a part hereof (collectively, the “Required Tenants”), and (b) a sufficient number of other tenants such that estoppel certificates shall have been received pursuant to clauses (a) and (b) hereof with respect to not less than seventy percent (70%) of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants total net rentable square footage of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested covered by the Existing Lender. The parties agree thatLeases in effect as of the date hereof, shall, subject to the provisions terms of subparagraph (b) belowSection 7.2.3(b), it shall be a condition precedent to Purchaser's ’s obligation to close under purchase the Property hereunder. Seller shall use commercially reasonable efforts (and, as used in this Agreement that an estoppel certificate either Agreement, commercially reasonable efforts shall not be deemed to include any obligation to institute legal proceedings, deliver notices of default or to expend any monies) to obtain such Tenant Estoppel Certificates, which certificates shall be substantially in the form of EXHIBIT D or in the form required by attached hereto and made a tenant's Leasepart hereof as Exhibit D, dated not earlier than ten (10) business days prior as modified to conform to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% requirements of the rentable area of applicable lease or operative agreement, if any such requirements exist, and to make the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do sostatements contained therein factually correct. Notwithstanding the foregoing, if at Closing Seller delivers such may, in compliance with its obligations hereunder, deliver a Tenant Estoppels Estoppel Certificate in any form which does not materially vary from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially representations made in the form of EXHIBIT Tenant Estoppel Certificate in Exhibit D or (as modified to make the statement contained therein factually correct). Notwithstanding anything contained in this Agreement to the contrary, in the event Seller is unable to obtain a Tenant Estoppel Certificate from any particular tenant under any Lease, Seller shall have the right (but not the obligation) to deliver to Purchaser on the Closing Date a certificate (a “Seller’s Estoppel Certificate”) in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller attached hereto and made to a part hereof as Exhibit E, executed by Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of in such event, Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate have delivered a Tenant Estoppel Certificate with respect to such tenant for purposes of satisfying the condition under this Section 7.4.54.3. In no event shall Seller have the event right to deliver a Tenant Seller’s Estoppel contains a material exception Certificate for more than ten percent (10%) of the total net rentable square footage of the Property or qualification or alleges a material default by for any Required Tenant. In addition, Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be released from any liability with respect to terminate this Agreement by delivering notice thereof in writing such Seller’s Estoppel Certificate upon the sooner to Seller, on occur of (i) six (6) months following the earlier of five Closing Date and (5ii) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or Certificate executed by the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of tenant for which Seller has delivered such noticeSeller’s Estoppel Certificate. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Scheduled Closing Date, by paying Tenant Estoppel Certificates sufficient to satisfy the money on or prior condition precedent to Purchaser’s obligation to purchase the Property described in this Section 4.3 are not received, Seller may postpone the Closing Date, or by granting Purchaser for a credit against maximum of thirty (30) days beyond the Purchase Price Scheduled Closing Date to allow Seller additional time in an amount reasonably necessary order to perform obtain Tenant Estoppel Certificates sufficient to satisfy such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the samecondition precedent.
Appears in 1 contract
Tenant Estoppel Certificates. Seller shall use commercially reasonable efforts to (a) prepare, or cause to be prepared, and deliver to Purchaser for review and approval, within three (3) Business Days following the date hereof, the estoppel certificates in substantially the form of Exhibit D attached hereto (each, a “Tenant Estoppel Certificate”, and collectively, the “Tenant Estoppel Certificates”), and (b) remit, or cause to be remitted, the Tenant Estoppel Certificates to the tenants identified on Exhibit C attached hereto and made a part hereof (collectively, the “Required Tenants”) for signature within two (2) Business Days following Purchaser’s written notice to Seller agrees that Purchaser has approved the Tenant Estoppel Certificates (which notice shall set forth any required corrections). If Purchaser fails to notify Seller of its approval of, or any changes to, the Tenant Estoppel Certificates it receives from and after Seller for approval within two (2) Business Days following Purchaser’s receipt of the Assumption Approval same, Seller may forward such Tenant Estoppel Certificates to the tenants without Purchaser’s prior approval. Subject to the further provisions of this Section 4.3, receipt of Tenant Estoppel Certificates substantially in the form prescribed above or as set forth in Section 9.1 provided below (i) from the Required Tenants and provided this Agreement is in full force (ii) from a sufficient number of other tenants occupying space at the Property such that Tenant Estoppel Certificates (x) shall have been received pursuant to clauses (i) and effect, within five (5ii) business days after being requested by Purchaser hereof with respect to do so, to deliver to all tenants not less than eighty percent (80%) of the total net rentable square footage of the Property covered by the Leases in effect as of the Scheduled Closing Date, (y) not disclosing the existence of any material uncured default under the leases referred to therein and (z) confirming the information contained in the Tenant Estoppel Certificate delivered to Purchaser for approval, shall be a request for an estoppel certificate condition precedent to Purchaser’s obligation to purchase the Property hereunder. Seller shall promptly, following receipt of the same, deliver copies of the completed Tenant Estoppel Certificates to Purchaser. Seller shall use commercially reasonable efforts (and, as used in this Agreement, commercially reasonable efforts shall not be deemed to include any obligation to institute legal proceedings, deliver notices of default or to expend any monies) to obtain executed Tenant Estoppel Certificates. Notwithstanding the foregoing, any Tenant Estoppel Certificate that is in the form, if any, prescribed in the applicable lease or other operative document or that is in any form which does not materially vary from the representations made in the form of EXHIBIT Tenant Estoppel Certificate in Exhibit D attached hereto(as modified to make the statement contained therein factually correct) shall be deemed to be a satisfactory Tenant Estoppel Certificate for all purposes under this Agreement, which form may be revised if so requested provided that such Tenant Estoppel Certificate does not disclose any material uncured default under the leases referred to therein and, to the extent required by the Existing Lenderterms of such tenant’s lease, confirms the information contained in the Tenant Estoppel Certificate delivered to Purchaser for approval. The parties agree thatSeller agrees that upon its receipt of a form subordination, subject non-disturbance and attornment agreement (an “SNDA”) from Purchaser or its lender, Seller shall promptly send such SNDAs to the provisions of subparagraph tenants, and shall use commercially reasonable efforts (b) belowand, it as used in this Agreement, commercially reasonable efforts shall not be a condition deemed to Purchaser's include any obligation to close under this Agreement that an estoppel certificate either substantially in institute legal proceedings, deliver notices of default or to expend any monies) to obtain the form of EXHIBIT D or in SNDAs, signed by the form required by a tenant's Leasetenants, dated not earlier than ten (10) business days prior to the Closing Date; provided, be delivered to however, that Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% acknowledges and agrees that receipt of any or all of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller SNDAs shall not be obligated a condition precedent to pay tenants in order Purchaser’s obligation to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of purchase the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt As of the Assumption Approval Effective Date, there are two Tenants occupying the Real Property. The Parties acknowledge that Seller may be unable to provide a "TENANT ESTOPPEL CERTIFICATE" (in substantially the same form and substance as set forth in Section 9.1 the Tenant's Estoppel Certificate attached hereto as EXHIBIT "B") from both Tenants prior to the Closing, and provided the Parties agree that Seller's failure to obtain such a Tenant Estoppel Certificate from both Tenants shall not be a default under this Agreement, however, Buyer shall have the right to terminate this Agreement is pursuant to Section 2.6, above, in full force and effect, within five the event that either or both Tenants fail to deliver a Tenant Estoppel Certificate not less than three (53) business days after being requested by Purchaser prior to do so, the Closing. Seller shall use commercially reasonable efforts to obtain and deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached heretoBuyer, which form may be revised if so requested by the Existing Lender. The parties agree that, subject prior to the provisions of subparagraph (b) belowClosing, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, Tenant Estoppel Certificate from each Tenant dated not no earlier than ten thirty (1030) business calendar days prior to the Closing Date, be confirming the rent and other payments due and alleging no defaults, offsets, or claims against Seller, or if there any, setting forth such defaults, offsets, or claims against Seller. If both Tenant Estoppel Certificates are timely delivered to Purchaser no Buyer and both reflect terms materially consistent with the terms of each such Tenant's Lease, and neither of such Tenant Estoppel Certificates alleges a material variance from any rent roll delivered to Buyer or a material default by Seller under a Lease (unless such variance and/or default was disclosed, in writing, to Buyer not later than five (5) business days before Closing from tenants under prior to the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"Due Diligence Expiration Date), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller then Buyer shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be have no right to terminate this Agreement under this Subsection 3.1(d). Additionally, and if requested by delivering notice thereof in writing Buyer, Seller shall request that each Tenant execute and return to Seller, on the earlier of Buyer and/or Escrow, not later than five (5) business days after the date of delivery prior to Purchaser of Closing, a subordination, non-disturbance and attornment agreement, in form and substance reasonably acceptable to such Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICESNDA"), time being for the benefit of Wachovia Bank, National Association, however, the execution and/or delivery of the essence as to the giving SNDA by each Tenant shall not be a condition or contingency of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Credit Property Trust II Inc)
Tenant Estoppel Certificates. (a) Seller agrees Transferor shall use all reasonable and diligent efforts to obtain a Tenant Estoppel Certificate from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's LeaseTenants, dated not no earlier than ten thirty (1030) business days prior to the Closing Date, be delivered conforming to Purchaser the most recent Rent Roll and Delinquency Report approved by Transferee and alleging no defaults, offsets, or claims against Transfer. Transferor shall deliver completed Tenant Estoppel Certificates to Transferee as they are received by Transferor, and shall use all reasonable efforts to deliver all Tenant Estoppel Certificates to Transferee not later than five (5) business days before Closing from tenants under prior to the Leases occupying, in Closing. It shall be a condition to Transferee's obligation to close the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute Contribution and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area acquisition of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of not later than five (5) business days after prior to the date of delivery Closing:
(a) Transferor delivers to Purchaser of Transferee Tenant Estoppel Certificates from the Required Tenants, and, with respect to all Non-Required Tenants there shall exist no Material Non-Required Tenant Dispute. Transferee shall be allowed to ask any Non-Required Tenant which does not provide a Tenant Estoppel alleging a Certificate whether any such dispute exists; or
(b) To the extent Transferor is unable to obtain Tenant Estoppel Certificates, or any items required to be therein, from the Required Tenants, or to the extent that there is any Material Default or Non-Required Tenant Dispute, Transferor shall deliver to Transferee and Transferee may, but shall not be obligated to, accept, on the Closing Date (the "ESTOPPEL TERMINATION NOTICE")a certification in which Transferor warrants and represents to Transferee, time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such missing Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing Certificates or causing any missing items required items required to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such workincluded therein, as reasonably determined to all matters that were to be included therein and/or indemnifies Transferee as to any such Material Non- Required Tenant Dispute; provided however, that Transferee shall be required to accept such a Transferor certification as to missing Required Tenant Estoppel Certificates if the total square footage represented by Seller and Purchaser, in which event Seller shall, at or before such Transferor Certification does not exceed the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameNon-Required Tenants.
Appears in 1 contract
Samples: Contribution Agreement (Haagen Alexander Properties Inc)
Tenant Estoppel Certificates. Seller shall use reasonable efforts (abut shall not be obligated to provide a tenant with monetary compensation) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants cause each tenant of the Property a request for to provide Buyer with an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by hereto as Schedule G. Seller shall deliver the Existing Lender. The parties agree that, subject estoppel certificates to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in tenants for execution on or before the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than date which is five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding Buyer's obligations under this Agreement are conditioned upon its receipt of an estoppel certificate in the foregoingform attached hereto as Schedule G five days prior to the end of the Review Period from the following tenants: AMC, Purchaser Home Depot and LA Fitness Club (individually, each a "Major Tenant") and with respect to other tenants occupying not less than seventy five percent (75~) of the net rentable square footage of the Property which is not leased to a Major Tenant. Buyer shall have the right to approve or disapprove an estoppel certificate, in Buyer's sole and absolute discretion. Buyer shall be conclusively deemed to have accepted the executed estoppel certificates with respect to any tenant at the Property if Buyer has failed to object in writing to Seller with respect to such certificate on or before the expiration of three (3) business days after receipt of the estoppel certificate. If Buyer disapproves an estoppel certificate, Buyer shall provide Seller with a written explanation of the reason for its disapproval. Within three (3) business days after receipt of Buyer's written notice of disapproval, Seller shall have the right to elect to remedy the objection of Buyer to such certificate. Seller's remedy shall be acceptable to Buyer, in Buyer's sole and absolute discretion. Seller shall have no obligation to remedy an objection of Buyer to an estoppel certificate, but Seller shall cooperate with Buyer in attempting to cause the tenant that provided the unacceptable estoppel certificate to provide an acceptable estoppel certificate. If Seller does not elect to remedy Buyer's objection to any estoppel certificate, Buyer shall have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if without liability to either party (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter except as set forth in such estoppel by either performing or causing Section 4.4, 5.2(b) and 9.6 hereof) and the Xxxxxxx Money Deposit shall be returned to Buyer. The foregoing conditions contained in this Article IV.A are intended solely for the benefit of, and may be performed the work on or prior to the Closing Datewaived by, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameBuyer.
Appears in 1 contract
Samples: Credit Agreement (Price Reit Inc)
Tenant Estoppel Certificates. Subject to the balance of this Paragraph 5(a)(iv), Buyer shall have received estoppel certificates (acollectively, "ESTOPPEL CERTIFICATES" and individually, an "ESTOPPEL CERTIFICATE") satisfactory to Buyer in its sole discretion, which Seller agrees from shall use its good faith efforts to obtain, duly executed by (i) those Tenants occupying, in the aggregate, at least eighty-five percent (85%) of the gross leasable area that is occupied by Tenants as of the Opening of Escrow and (ii) each Tenant occupying premises containing more than 6,000 square feet of gross leasable area. Such Estoppel Certificates shall be dated not earlier than sixty (60) days prior to the original Scheduled Closing Date. The Estoppel Certificates shall be in the form of EXHIBIT "G-1" attached hereto, and containing fill-in information consistent with the Rent Roll and Schedule of Leases (hereinafter defined) or otherwise approved by Buyer (in its sole discretion), except for Tenants which are anchor department stores, in which case the Estoppel Certificate shall be in the form of EXHIBIT "G-2" attached hereto. Seller shall deliver to Xxxxx executed original Estoppel Certificates as soon as possible after Xxxxxx's receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, same. Xxxxx's failure to disapprove an executed Estoppel Certificate within five (5) business days after being requested by Purchaser following Xxxxx's receipt thereof shall be deemed to do soconstitute Buyer's approval thereof. Notwithstanding Tenant's changes in form or wording from the form Estoppel Certificate attached as G-1 or G-2, to Buyer may only disapprove an Estoppel Certificate if the substance of the Estoppel Certificate is (i) materially different from the form of Estoppel Certificate; provided, however, the deletion or modification of paragraphs 13, 14, 15 and/or 16 shall not be considered a material modification, or (ii) contains fill-in information not consistent with the Rent Roll and Schedule of Leases. In addition, Seller shall deliver to all tenants Buyer a Seller's Lease Certificate for each occupied Tenant space with greater than 6,000 square feet of gross leasable area for which an Estoppel Certificate was not obtained (which Estoppel Certificates shall count against the above 85% requirement). If Seller has obtained acceptable Estoppel Certificates from those Tenants occupying at least fifty-five percent (55%) of the Property a request gross leasable area ("THRESHOLD AMOUNT") that is occupied by Tenants as of the Opening of Escrow, but has not been able to obtain acceptable Estoppel Certificates from Tenants occupying at least eighty-five percent (85%) of the gross leasable area that is occupied by Tenants as of the Opening of Escrow, then Seller shall deliver its own, separate certificate to Buyer for an estoppel certificate specific Leases as determined by Seller and as may be necessary to satisfy the foregoing requirement ("SELLER'S LEASE CERTIFICATE") in the form of EXHIBIT D "G-3" attached hereto, which form may be revised if so requested by . Seller shall deliver the Existing Lender. The parties agree that, subject original executed Xxxxxx's Lease Certificates to the provisions of subparagraph Buyer no later than one (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (101) business days day prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under . In the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect event that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive after the Closing until Date Seller receives an Estoppel Certificate in a form acceptable (on the earlier of (aterms described above) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate to Buyer from a tenant Tenant for whom Seller previously delivered a Seller's Lease Certificate, Seller may deliver such Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications Certificate to Buyer and the corresponding Seller's Lease Certificate shall be deemed to be an acceptable estoppel certificate for purposes canceled AB INITIO. The immediately preceding sentence shall survive the Close of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such noticeEscrow. If Purchaser shall Buyer disapproves of, or should Seller fail to timely give obtain the Threshold Amount of Estoppel Termination NoticeCertificates, then subject to at Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (Buyer's election by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), the other and Escrow Holder received at Seller's option least one (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or 1) business day prior to the Scheduled Closing Date, by paying the money on or Scheduled Closing Date shall be postponed for up to fifteen (15) days, and Seller shall continue to diligently seek to obtain any missing Estoppel Certificate and/or remedy any disapproved Estoppel Certificate. If, as of the postponed Scheduled Closing Date, Seller has not delivered the Threshold Amount of Estoppel Certificates, then this Agreement, the Escrow and the rights and obligations of the parties hereunder shall, at the option of Buyer, terminate, except as provided in the Surviving Provisions. If the Scheduled Closing Date is extended pursuant to the terms of this Paragraph, the requirement that the Estoppel Certificates be dated no more than sixty (60) days prior to the Scheduled Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit Date shall be waived with respect to those Estoppel Certificates that have previously been delivered to Buyer and which were dated within sixty (60) days of the sameoriginal Scheduled Closing Date.
Appears in 1 contract
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it It shall be a condition precedent to Purchaser's Buyer’s obligation to close under this Agreement acquire the Property hereunder that the Buyer receives an estoppel certificate either (the “Tenant Estoppel Certificate”) from REMEC, Inc., a California corporation, and REMEC Microwave, Inc., a California corporation (collectively, “REMEC”), for each of the “Leases” (as hereinafter defined). For the purposes of this Agreement, “Leases” means, collectively, (a) that certain Lease Agreement dated as of April 14, 2003 by and between Seller and REMEC with respect to 0000 Xxxxxx Xxxxx, (b) that certain Lease Agreement dated as of April 14, 2003 by and between Seller and REMEC with respect to 0000 Xxxxxx Xxxxx, (c) that certain Lease Agreement dated as of April 14, 2003 by and between Seller and REMEC with respect to 0000 Xxxxxx Xxxxx, and (c) that certain Lease Agreement dated as of April 14, 2003 by and between Seller and REMEC with respect to 0000 Xxxxxxxxxx Xxxxx. The Tenant Estoppel Certificate shall be substantially in the applicable form of EXHIBIT D attached as Exhibit ”C”, or in the form required prescribed in the Leases. Seller’s sole obligation hereunder shall be to utilize commercially reasonable efforts to obtain the Tenant Estoppel Certificates from REMEC (and, as used in this Agreement, commercially reasonable efforts shall not include any obligation to institute legal proceedings or to expend any monies). If on or before the Closing Date such condition is not satisfied (or waived by Buyer), then this Agreement shall terminate (and no party hereto shall have any further obligation in connection herewith except under those provisions that expressly survive a tenant's Leasetermination of this Agreement). Without limitation on the foregoing, dated if the Tenant Estoppel Certificate discloses material adverse matters which are not earlier than ten (10) business days prior to consistent with the Leases and are not cured or satisfied by Seller on or before the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller then Buyer shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the ClosingClosing Date (and, cureif Buyer so terminates this Agreement, perform, pay or grant Purchaser then no party hereto shall have any further obligation in connection herewith except under those provisions that expressly survive a credit with respect to the sametermination of this Agreement).
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Tenant Estoppel Certificates. No later than three (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (103) business days prior to the Closing Date, be delivered to Purchaser no later shall have received estoppel certificates (the "Tenant Estoppel Certificates"), dated not more than forty-five (545) business days before prior to the Closing Date, from tenants all Tenants under the Leases occupying, of portions of the Condominium Units included in the aggregateClosing. The Tenant Estoppel Certificates shall be substantially in the form of Exhibit J hereto or alternatively upon the form of Estoppel Certificate required to be provided by Tenants in accordance with the terms of such Tenant's Lease; provided, not however, if any Tenant Estoppel Certificate received from a Tenant alleges, or contains any changed or inserted or deleted language which constitutes or could be reasonably construed as an allegation of, (A) a material default by Seller under the applicable Tenant Lease, or (B) facts which, with the giving of notice or the passage of time or both, would constitute a material default by Seller under the applicable Tenant Lease, or (C) facts which are materially different (and less than 75% of favorable to the rentable area of landlord) from the Propertyapplicable information set forth in (i) any representation and warranty made by Seller in Paragraph 12.1 below or (ii) the Tenant Estoppel Certificate delivered to such Tenant for execution, including all tenants occupying at least a full floor then Purchaser shall have the option to either approve the modified Tenant Estoppel Certificate and proceed with the Closing or more of space (a "TENANT ESTOPPEL"), terminate this Agreement in accordance with Paragraph 6.6 below. Seller agrees shall deliver the proposed Tenant Estoppel Certificates to Purchaser for Purchaser's review and approval prior to distributing the same to the Tenants for execution and Seller shall use good faith Seller's best efforts to obtain such the executed Tenant EstoppelsEstoppel Certificates from Tenants; provided, provided however, Seller shall not be obligated to pay tenants in order initiate suit or other proceedings, waive any rights or grant any concessions to do soa Tenant or expend any out-of-pocket sums to obtain Tenant Estoppel Certificates. Notwithstanding the foregoing, if at Closing if, despite Seller's best efforts, Seller delivers such is unable to obtain executed Tenant Estoppels Estoppel Certificates as provided above Purchaser will consider, on a case by case basis accepting from tenants occupying at least 60% Seller estoppel certificates certifying to Purchaser the same information in the respective unreturned Tenant Estoppel Certificates for up to twenty percent (20%) of the rentable area of Tenants. After the PropertyClosing, Seller may execute replace and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of substitute any Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each executed Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event Certificate with a Tenant Estoppel contains a material exception or qualification or alleges a material default Certificate which has been executed by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being any of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and PurchaserTenants, in which event Seller shall, at or before shall have no further liability under the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameSeller furnished estoppel certificates.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Urstadt Biddle Properties Inc)
Tenant Estoppel Certificates. As a condition to Purchaser’s obligation to close hereunder, Purchaser shall have received at least two (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (52) business days after being requested by Purchaser before the Closing Date estoppel certificates (“Tenant Estoppel Certificates”), dated no more than forty-five (45) days prior to do sothe originally scheduled Closing Date, to deliver to all from tenants of the Real Property a request (“Required Tenants”) occupying not less than seventy-five percent (75%) of the rented rentable square footage of the Xxxxxx Real Property and seventy-five percent (75%) of the rented rentable square footage of the Division Real Property, unless the Early Closing Condition is satisfied or Purchaser fails to extend the Closing Date pursuant to Section 4 above (and Seller does not extend the Closing Date on account of the Ground Lease Release pursuant to Section 4 above), in which case Purchaser shall accept those Tenant Estoppel Certificates which have actually been delivered. The Tenant Estoppel Certificates delivered to the tenants for an estoppel certificate execution shall be in the form of EXHIBIT D Exhibit L attached hereto, which form may be revised if so requested by hereto (the Existing Lender“Form Tenant Estoppel Certificate”). The parties agree that, subject to the provisions of subparagraph (b) below, it Tenant Estoppel Certificates executed by tenants shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either in substantially in the form of EXHIBIT D or in the form required Form Tenant Estoppel Certificate without materially adverse modification; provided, however, that a Tenant Estoppel Certificate executed by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller tenant shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to deemed an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each unacceptable Tenant Estoppel containing non-material exceptions, qualifications or modifications Certificate (and shall not be deemed to be an acceptable estoppel certificate adversely modified) for purposes of this Section 7.4.58.2.1 if it (a) contains the qualification by the tenant of any statement as being to its knowledge, (b) does not contain any more information than that which the tenant is required to give in any such certificate pursuant to its Lease, (c) fails to certify to Purchaser’s lender, (d) is in the form attached to such tenant’s Lease, or (e) with respect to a national tenant, is in the form typically provided by such tenant. In the event a Closing does not occur on or before January 1, 2011, and Seller is unable to provide to Purchaser the Tenant Estoppel contains a material exception Certificates for the Required Tenants without materially adverse modification on or qualification or alleges a material default by Seller before the date that is two (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (52) business days after before the date of delivery then scheduled Closing Date, Seller may, at its option, elect to execute and deliver to Purchaser of certificates (individually, a “Seller Tenant Estoppel alleging a Material Default or Certificate,” and, collectively, the “Seller Tenant Estoppel Certificates”), substantially in the same form as the certificate attached hereto as Exhibit M (the “Form Seller Tenant Estoppel Certificate”), covering tenants necessary so that Purchaser shall be deemed to have received, at Closing, Tenant Estoppel Certificates and Seller Tenant Estoppel Certificates with respect to the Required Tenants. Notwithstanding anything to the contrary set forth in this Agreement, if the Early Closing Condition is satisfied (and Seller does not extend the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being on account of the essence as Ground Lease Release pursuant to Section 4 above) or if for any reason Purchaser elects for the giving of such notice. If Purchaser shall timely give the Estoppel Termination NoticeClosing to occur prior to January 1, 2011, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation)obligation to deliver any Seller Tenant Estoppel Certificates. In the event that Seller elects to deliver such Seller Tenant Estoppel Certificates, each statement therein shall survive for a period terminating on the earlier to cure occur of (i) the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work date on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting which Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.has received
Appears in 1 contract
Samples: Purchase and Sale Agreement (Retail Opportunity Investments Corp)
Tenant Estoppel Certificates. Receipt of tenant estoppel certificates (a“Tenant Estoppel Certificates”) from tenants under Leases in effect as of the Closing Date and representing seventy-five percent (75%) of the rentable square footage of the building on the Land (i.e., 20,400 square feet), one of which must be from Chef Xxxxxxx, Inc. (collectively, the “Required Tenants”), in the form attached hereto as Exhibit “G” (or if Buyer’s lender will not accept that form, then in a form reasonably required by Buyer’s lender) shall be a condition precedent to Buyer’s obligation to acquire the Property hereunder. For the avoidance of doubt, the “Required Tenants”, as used in the preceding sentence, shall not include any area subject to or covered by any billboard, rooftop, telecommunications, or antenna lease or license (collectively, “Non-Space Leases”). If on the Closing Date such condition is not satisfied, then Seller shall have the right to extend the Closing Date up to ten (10) business days by delivering notice thereof to Buyer on or before the Closing Date. If Seller does not elect to extend the Closing Date (or if such Closing Date was extended but such condition is not satisfied by such extended Closing Date), the Buyer shall have the right to terminate this Agreement by written notice given prior to the Closing, in which case this Agreement shall terminate and Buyer shall be entitled to a refund of the Deposit, and no party hereto shall have any further obligation under this Agreement except under those provisions that expressly survive a termination of this Agreement.
(i) Seller agrees shall utilize commercially reasonable efforts to obtain Tenant Estoppel Certificates from and after receipt the tenant under each Lease (other than Non-Space Leases). As used in this Agreement, “commercially reasonable efforts” shall not include any obligation to institute or threaten legal proceedings, to declare or threaten to declare any person in default, to expend any monies or to cause any other person to do any of the Assumption Approval as set forth same.
(ii) Notwithstanding anything to the contrary herein, in Section 9.1 and provided the event Seller fails to obtain a Tenant Estoppel Certificate from any particular tenant under any Lease (after requesting the same) other than any Non-Space Lease:
(1) In the case of a Tenant Estoppel Certificate to be obtained from a Required Tenant, Seller shall give written notice to Buyer stating that Seller has not obtained such Tenant Estoppel Certificate, in which event Buyer may terminate this Agreement is in full force and effect, within by written notice to Seller at any time prior to the earlier to occur of the Closing Date or five (5) business days after being requested by Purchaser to do soreceipt of Seller’s notice, to deliver to all tenants of in which case the Property a request for an estoppel certificate in Deposit (less the form of EXHIBIT D attached heretoIndependent Consideration, which form may shall be revised paid to Seller) shall be returned to Buyer and no party hereto shall have any further obligation under this Agreement except under those provisions that survive a termination of this Agreement, and if so requested by the Existing Lender. The parties agree thatBuyer fails to terminate this Agreement within such period, subject to the provisions Buyer shall be deemed (except for purposes of subparagraph clause (b) below, it shall be ) to have received a Tenant Estoppel Certificate with respect to such tenant for purposes of satisfying the condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten Section 9.2.2; and.
(102) business days prior to the Closing Date, be delivered to Purchaser no later than five Seller may (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller but shall not be obligated to) deliver to pay tenants Buyer on the Closing Date a certificate (the “Seller Tenant Certificate”) in order a form reasonably acceptable to do so. Notwithstanding the foregoingBuyer, if at Closing Seller delivers and in such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Propertyevent, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event have delivered a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate Certificate with respect to such tenants and (y) tenant for purposes of satisfying the condition under this Section 9.2.2. Any Seller elects (by written notice Tenant Certificate shall be subject to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter limitations set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller Sections 12.2 and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same12.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rexford Industrial Realty, Inc.)
Tenant Estoppel Certificates. (a) Prior to Closing, each Seller agrees from shall use commercially reasonable efforts to obtain and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants Purchaser from the Tenant under each Lease of the such Seller’s Property a request for an estoppel certificate in substantially the form of EXHIBIT D attached heretohereto as Exhibit “O-1” or, which form may be revised if so requested by the Existing Lender. The parties agree thatany Lease requires a different form, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's such Lease, all dated not earlier no more than ten thirty (1030) business days prior to the Closing DateDate (each, a “Tenant Estoppel Certificate”). None of the Sellers shall be delivered in default for failure to obtain any Tenant Estoppel Certificates, although for the avoidance of doubt the failure by the Sellers to deliver the Tenant Estoppel Certificates as contemplated by Section 8.2.4 shall be a failure of a condition to Purchaser’s obligation to close the transactions contemplated by this Agreement. Prior to the date on which Seller intends to distribute the Tenant Estoppels to the Tenants for their completion and execution, Seller shall deliver the draft Tenant Estoppels to Purchaser no later than five (5i) business days for Purchaser’s review and, (ii) as relates to the factual information included in such draft Tenant Estoppels or to the extent the draft Tenant Estoppels are not substantially in the form attached hereto as Exhibit “O-1” , for Purchaser’s approval, which approval shall not be unreasonably withheld, conditioned or delayed. Purchaser shall either give such approval or provide comments to such draft Tenant Estoppels within two (2) Business Days of receipt thereof. If any of the Properties includes a Lease under which the Tenant is the GSA, such Property’s Seller shall use commercially reasonable efforts to obtain a novation agreement with respect to such Lease before Closing from tenants under the Leases occupyingand, in the aggregate, if such novation agreement is not less than 75% obtained as of the rentable area of the PropertyClosing, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), such Seller agrees shall continue to use good faith commercially reasonable efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do sonovation agreement as soon as is practicable after Closing. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with With respect to tenants occupying up any such Lease to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafterGSA Tenant, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's term “Tenant Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications ” as used herein shall be deemed to be an acceptable estoppel certificate for purposes mean a statement of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject lease in form reasonably satisfactory to the following GSA Tenant thereunder. The provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy 6.1.3 pertaining to novation agreements shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before survive the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Purchase and Sale Agreement (First Potomac Realty Trust)
Tenant Estoppel Certificates. One (a1) Seller agrees from original counterpart of a Tenant Estoppel Certificate executed by (i) all tenants listed on Schedule 7.3.7 hereto (the "Key Tenants"), and after receipt (ii) tenants whose leases generate not less than sixty (60%) of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants rental income of the Property derived from tenants other than the Key Tenants. Seller will request that each tenant execute a request for an estoppel certificate Tenant Estoppel Certificate in substantially the form of EXHIBIT D attached heretoExhibit F (or, which form may be revised with respect to Kohl's and Hobby Lobby, on such tenant's form, and if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's LeaseLease specifies or contemplates another form of tenant estoppel certificate, dated not earlier than ten (10) business days prior then on substantially such other specified or contemplated form). Seller shall make a reasonable effort to the Closing Date, be delivered obtain and deliver copies of such tenant estoppel certificates to Purchaser no later than five (5) business days before Closing from tenants under prior to the Leases occupyingClosing. In order to be acceptable for purposes of satisfying the terms of this Section 7.3.7, the tenant estoppel certificates delivered to Purchaser (1) shall not be dated earlier than July 25, 2014, (2) shall have all blanks completed or marked not applicable, as appropriate, (3) shall have all exhibits completed and attached, as applicable, and (4) shall not (x) contain any assertions adverse or contrary to the provisions of the Lease, or (y) indicate any material landlord default that has not been cured. Notwithstanding anything to the contrary set forth herein, Purchaser acknowledges that the executed estoppel certificates listed on Exhibit L attached hereto -15- that have been delivered by Seller to Purchaser prior to the Effective Date are acceptable to Purchaser for purposes of this Section 7.3.7. Purchaser acknowledges that the form of estoppel certificate attached hereto as Exhibit F includes information and statements in excess of what is required in the aggregatestandard estoppel provision in Seller's form lease and Purchaser agrees that an executed estoppel shall be deemed acceptable for purposes of this Section 7.3.7 even if such additional statements are deleted or modified, not less than 75% so long as the items in clause (1) through (4) of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), immediately preceding sentence are satisfied. Seller agrees to use good faith efforts forward a copy of any executed estoppel received by Seller from a tenant to obtain such Tenant EstoppelsPurchaser within three (3) business days after Seller's receipt of same. If Purchaser does not object in writing (which may be via email) to an executed estoppel within three (3) business days after receiving same, provided however, the executed estoppel will be deemed acceptable for purposes of satisfying the condition in this Section 7.3.7. Seller shall not be obligated to pay tenants expend any funds in order connection with obtaining any such tenant estoppel certificates, and the failure of Seller to do soobtain any such tenant estoppel certificates shall not be a breach or default hereunder. Notwithstanding If Seller is not able to obtain a sufficient number of acceptable tenant estoppel certificates to satisfy the foregoingthreshold in clause (ii) above, if at Closing such requirement may be satisfied by Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, providing a certificate executed by Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying for up to an additional 15% two (2) leases (other than the leases of the rentable area of the Property (substantially Key Tenants) in the form of EXHIBIT D Exhibit I attached hereto (a "Seller Certificate"). If Seller is unable to deliver the tenant estoppel certificates or Seller Certificates referred to in the form required by a tenantthis Section 7.3.7, then Purchaser's Lease, appropriately modified sole remedies and recourse shall be limited to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of either (a) one hundred waiving the requirement for the tenant estoppel certificates in question and eighty proceeding to Closing without reduction of the Purchase Price, (180b) adjourning the Closing Date for a period of up to twenty (20) days after Closingby giving written notice to Seller in order to allow Seller additional time to obtain such tenant estoppel certificates, or (bc) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate terminating this Agreement by delivering notice thereof in writing written notification to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect this Agreement shall be terminated as provided for in Section 7.2. Notwithstanding anything to the samecontrary set forth herein, if the Closing is extended for any reason, Seller shall not be required to obtain (and it shall not be a condition precedent to Purchaser's obligation to close that Seller obtain) updated estoppel certificates. Notwithstanding anything to the contrary set forth herein, Seller shall not be required to obtain an estoppel certificate for the Men's Wearhouse Lease or any new Lease entered into after the Effective Date, and any such Leases shall be excluded from the calculation of the estoppel threshold in clause (ii) above.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Credit Property Trust V, Inc.)
Tenant Estoppel Certificates. (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement It is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition precedent to Purchaser's obligation ’s obligations to close under this Agreement proceed to Closing that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be Seller shall have delivered to Purchaser Purchaser, no later than five three (53) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"“Estoppel Deadline”), time being a tenant estoppel certificate substantially in the form attached hereto as Exhibit I from tenant under the Lease (the “Tenant Estoppel Certificate”). The Tenant Estoppel Certificate shall (a) be substantially in form and substance of that which was delivered by Seller to the tenant, or in the form permitted to be provided by the tenant, in each case pursuant to the terms of this Agreement, and (b) not contain any descriptions of terms and conditions that are inconsistent in any material respect with the actual terms and conditions of the essence Lease delivered to Purchaser; provided, however, that a Tenant Estoppel Certificate shall not fail to qualify as an acceptable Tenant Estoppel Certificate if the tenant (1) inserts “to tenant’s knowledge” or “in all material respects” or other similar knowledge or materiality qualification to any of the statements contained in its Tenant Estoppel Certificate; (2) delivers an estoppel letter that does not contain any more information than that which the tenant is required to give under its Lease; or (3) inserts “approximately” or other similar qualification to the giving amount of such noticesquare feet leased by the tenant. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, In no event will Seller be in default under this Agreement shall terminateor have any liability to Purchaser if Seller is unable to obtain the Tenant Estoppel Certificate. For purposes hereof, and upon such terminationdelivery of a Tenant Estoppel Certificate from a Tenant that shows defaults by the lessor or the lessee, Purchaser shall be entitled to the return other obligations of the Deposit Note and all interest thereonlessor or the lessee that are materially inconsistent with the Rent Roll obtained separately by Purchaser or other adverse matters (in any case, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser an “Adverse Matter”) shall not have the right to terminate this Agreement if be deemed a satisfactory delivery of a Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate Estoppel Certificate with respect to such tenants Tenant. If Seller is unable to obtain the Tenant Estoppel Certificate on or before the Estoppel Deadline, then (i) Seller and Purchaser shall each have a one-time right to extend the Estoppel Deadline and the Closing Date by up to ten (10) days in the aggregate; and (yii) if Seller elects is unable to obtain the Tenant Estoppel Certificate on or before Estoppel Deadline, as extended pursuant to (i) above, Purchaser, as its sole and exclusive remedy, may either: (A) terminate this Agreement by written notice to Purchaser given simultaneously with Seller's delivery Seller whereupon the Xxxxxxx Money shall be returned to Purchaser, and the parties will have no further rights or obligations under this Agreement, except for those rights or obligations that expressly survive termination; or (B) waive the requirement of such the Tenant Estoppel Certificate and proceed to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a without receiving any credit against or reduction of the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameSales Price.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rodin Global Property Trust, Inc.)
Tenant Estoppel Certificates. SAFECARE shall use reasonable ---------------------------- efforts to obtain Tenant Estoppel Certificates (aherein so called) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in substantially the form of EXHIBIT D attached heretoSchedule 7.7 hereto from all of the MOB Tenants under the MOB Leases. Notwithstanding the foregoing, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to PurchaserBuyer's obligation to close under the transactions contemplated by this Agreement that an estoppel certificate either substantially in is subject to the form following condition precedent, to be satisfied prior to the date of EXHIBIT D or in the form required by a tenant's LeaseClosing. SAFECARE shall have obtained, and delivered to Buyer, original executed Tenant Estoppel Certificates dated not earlier than ten within thirty (1030) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants and executed by MOB Tenants under the MOB Leases occupying, in the aggregate, leasing not less than 75% eighty percent (80%) of the rentable area square footage of the PropertyMOB, including including, without limitation, all tenants occupying at least a full floor or more MOB Tenants under MOB Leases in excess of space three thousand (a "TENANT ESTOPPEL"), Seller agrees to 3,000) rentable square feet. SAFECARE shall use good faith reasonable efforts to obtain such the Tenant Estoppels, provided however, Seller Estoppel Certificates but shall not be obligated have no obligation to pay tenants make any payment or to institute any action or proceeding pursuant to the MOB Leases in order to do sosatisfy this condition. Notwithstanding If this condition is not satisfied by SAFECARE or waived by Buyer on or prior to the foregoingdate of Closing, if at Closing Seller delivers Buyer may terminate this Agreement. If such Tenant Estoppels from tenants occupying at least 60% condition precedent has been satisfied but less than all of the rentable area of MOB Tenants have executed and delivered Tenant Estoppel Certificates to Buyer, Seller, at the PropertyClosing, Seller may shall execute and deliver to Purchaser, at Closing, its own certificate with respect to Buyer Tenant Estoppel Certificates for such tenants occupying up to an additional 15% (the "Substitute Estoppel Certificates"). The certifications made in each of the rentable area of the Property Substitute Estoppel Certificates shall (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made i) be to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE"knowledge and (ii) and the statements of Seller contained therein shall survive the Closing until the earlier (unless displaced by delivery to Buyer of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception Certificate from the applicable tenant on or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of before forty-five (545) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"Closing), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Appears in 1 contract
Samples: Asset Purchase Agreement (Health Management Associates Inc)
Tenant Estoppel Certificates. Seller shall use commercially reasonable efforts to obtain and deliver to Purchaser not more than thirty (a30) Seller agrees days prior to Closing and not later than ten (10) days prior to Closing (the “Tenant Estoppel Deadline”), a written estoppel certificate from each tenant on the approved form of such tenant, which Estoppel Certificate shall be certified to Purchaser and after receipt of its lender, and which Estoppel Certificate shall certify that the Assumption Approval as set forth in Section 9.1 and provided this Agreement Lease is in full force and effecteffect and has not been further amended, the amount of the current monthly rental payable, the date through which such rental has been paid, and that there is no default thereunder by landlord or tenant (an “Estoppel Certificate”). Purchaser shall have three (3) days from receipt of any Estoppel Certificate to approve of such Estoppel Certificate in Purchaser’s commercially reasonable discretion, it being understood that if Purchaser does not disapprove of any Estoppel Certificate in writing within such three (3) day period, then Purchaser shall be deemed to have approved such Estoppel Certificate. Purchaser acknowledges that tenant is only required to deliver an Estoppel Certificate on either tenant’s preferred form or pursuant to the applicable Lease. In the event that Seller is unable to deliver the Estoppel Certificates as required herein to Purchaser prior to or on the Tenant Estoppel Deadline, then Purchaser shall have the right to extend the Tenant Estoppel Deadline until it has received the Estoppel Certificates as required herein and, in such event, the Closing Date shall be extended to the later of: (i) the Closing Date set forth in Section 8(a); or (ii) the date which is five (5) business days after being requested by Purchaser to do so, to deliver to all tenants following the date of Purchaser’s receipt of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Seller is unable to deliver the Estoppel contains a material exception or qualification or alleges Certificates satisfying the requirements set forth above, such failure shall constitute a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the exercise its right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by and receive the performance return of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the sameEscrow Deposit.
Appears in 1 contract
Samples: Purchase Agreement (Aei Income & Growth Fund Xxii LTD Partnership)
