Tenant Estoppels. Purchaser shall have received a tenant estoppel certificate (each, a “Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”) substantially in the form attached hereto as Exhibit C (or, if different, the form and content required under the applicable Lease) from (a) the following tenants (collectively, the “Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with the Major Tenants, occupy at least seventy percent (70%) of the leased rentable square footage of the Property (“Required Estoppel Amount”); provided, however, if Purchaser has not notified Seller in writing of the failure of the conditions set forth in this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is five (5) business days prior to Closing, these conditions shall be deemed satisfied. Notwithstanding the foregoing, at Seller’s sole option, Seller may extend the Closing Date for up to an additional thirty (30) days in order to satisfy the foregoing requirement in which event Seller shall deliver notice of such extension to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination. If Seller acts under item (ii) of the sentence prior to the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day prior to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Banc of California, Inc.)
Tenant Estoppels. (i) Receipt by Purchaser shall have received a tenant of an executed estoppel certificate certificate, in substantially the form required below (each, a an “Tenant Estoppel Certificate”), from the following tenants (1) each “Anchor Tenant” identified on Exhibit U (individually, an “Anchor Tenant Estoppel” and collectively, the “Anchor Tenant Estoppel CertificatesEstoppels”) substantially in if, as and to the form attached hereto as Exhibit C extent that an Anchor Tenant is contractually obligated to deliver an Estoppel Certificate to Seller and (or, if different, 2) enough of the form and content required under the applicable Lease) from (a) the following remaining tenants (excluding any licensees, or storage, temporary, kiosk or cart tenants) (individually, a “Remaining Tenant Estoppel” and collectively, the “Major TenantsRemaining Tenant Estoppels”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with the Major Tenants, occupy so that Remaining Tenant Estoppels received by Purchaser cover at least seventy sixty-five percent (7065%) of the leased rentable square footage of the Property Shopping Center that is occupied by tenants (excluding any rentable square feet leased by an Anchor Tenant and any licensees, or storage, temporary, kiosk or cart tenant) (such tenants, the “Required Estoppel AmountRemaining Tenants”); provided, however, if Purchaser has not notified Seller in writing that the Remaining Tenant Estoppels must include Estoppel Certificates (collectively, the “Major Tenant Estoppels”) from each “Major Tenant” identified on Exhibit U (collectively, the “Major Tenants”). Subject to the penultimate paragraph of the failure of the conditions set forth in this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is five 4.1, each Estoppel Certificate shall be dated no earlier than sixty (560) business days prior to Closing; provided, these conditions however, Purchaser shall be deemed satisfied. Notwithstanding have the foregoing, at Seller’s sole option, Seller may right to extend the Closing Date for up a period not to exceed an additional thirty (30) days (subject to Section 5.1(e) below), in order to satisfy the foregoing requirement in which event Seller that Purchaser’s lender shall deliver notice of such extension to Purchaser not less than one accept any Estoppel Certificate because (1) day prior of its date, in which case Seller agrees to use commercially reasonable efforts to obtain a confirmation or update of any Estoppel Certificate previously delivered, as required by Purchaser’s lender, or (2) it is not certified to Purchaser, Purchaser’s lender and their successors and assigns, in which case Seller agrees to use commercially reasonable efforts to obtain a confirmation or update of any Estoppel Certificate previously delivered, as required by Purchaser’s lender; provided, however, that obtaining any such confirmation or update to an Estoppel Certificate is not a condition precedent to Purchaser’s obligations hereunder.
(ii) The Anchor Tenant Estoppels and the then existing Closing Date. In order Remaining Tenant Estoppels (including the Major Tenant Estoppels) shall each be in substantially the same form of Exhibit P-2 or, in each case, such other form as is specified in the applicable Lease or containing such information as is expressly specified in the applicable Lease to be treated as a delivered Tenant Estoppel Certificate for purposes of provided by the tenant thereunder, provided that any estoppel certificate under this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant 4.1(f) shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the acceptable (an “Acceptable Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, Estoppel”) if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, only if it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material subject to Sections 4.1(f)(iii) and (iv) below, does not indicate the existence of an actual landlord default by a tenant under the applicable Lease (other than minor technical or Seller as landlord de minimis breaches), (2) confirms the amount of current base monthly rent under the applicable Lease, (23) does not indicate any material adverse document conflict with or term constituting part contain information contradictory to the terms and conditions of the Lease, applicable Lease (3other than minor technical or de minimis conflicts or contradictions) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or and (4) contains economic lease information does not state that the applicable Lease is inconsistent with that shown on not in full force and effect.
(iii) Seller shall have the Rent Roll or in the tenant files for the Leaseoption, but shall not be deemed required, to execute an estoppel certificate in the form of Exhibit P-3 attached hereto (“Seller Estoppel”) for Remaining Tenants other than the Major Tenants (“Other Tenants”) who have not provided an Estoppel Certificate in order to satisfy the estoppel threshold required to be obtained by Seller in Section 4.1(f)(i)(2) (the delivery of a Tenant “Estoppel Certificate for purposes of this Section 10.2.2Threshold”); provided, however, that the provisions in the following sentences shall apply aggregate square footage of leased premises with respect to any the Shopping Center for which Seller default under a Lease which is disclosed Estoppels may be delivered by such Tenant Seller in lieu of Estoppel Certificate and Certificates in order to satisfy the Estoppel Threshold shall not exceed ten percent (z10%) of the provisions leased rentable square footage of ARTICLE VII shall apply Other Tenants with respect to any materially untrue Sellerthe Shopping Center. Notwithstanding the foregoing, Seller Estoppels shall not satisfy the Estoppel Threshold if Purchaser’s Representations disclosed by such lender does not permit Seller Estoppels to satisfy the Estoppel Threshold; provided that Purchaser shall use its commercially reasonable efforts to cause its lender to accept Seller Estoppels or other assurances from Seller or TRG, which they are willing to provide, in their sole discretion.
(iv) Any REA Estoppel that does not meet the requirements of an Acceptable REA Estoppel, or Estoppel Certificate that does not meet the requirements of an Acceptable Tenant Estoppel Certificate. If a shall be deemed to be an Acceptable REA Estoppel or Acceptable Tenant Estoppel Certificate delivered by a tenant discloses a Estoppel, as applicable, if Seller agrees to indemnify Purchaser for the monetized value of the disclosed default by Seller under such tenant’s Leaseor claim (collectively, then Seller “REA/Tenant Claims”), prior to the Closing; provided that if the aggregate amount of REA/Tenant Claims at the Shopping Center is equal to or greater than Five Million Dollars ($5,000,000.00), this condition precedent shall have the rightnot be satisfied and Purchaser, at Seller’s sole its option, to may either (i1) cure require that Seller indemnify Purchaser or Purchaser’s lender for such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by SellerREA/Tenant Claims, or (iii2) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this AgreementAgreement in writing, in which event case Escrow Agent shall refund the provisions Deposit (except for the Independent Consideration) to Purchaser and both Purchaser and Seller will be relieved of Section 5.5 any further obligations hereunder, except for the obligations hereunder which expressly survive the Closing or other termination of this Agreement shall apply to such termination. If Seller acts Agreement; provided, further, however that if Purchaser’s lender does not find Seller’s or TRG’s indemnification of Purchaser under item (ii) of the sentence prior to the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under this clause (iiiv) above. If Seller acts under item (iii) aboveas an acceptable remedy to cure any REA/Tenant Claims, then this condition precedent shall not be satisfied and Purchaser shall, on or before the earlier of two may terminate this Agreement in writing in accordance with clause (2) business days above (provided that Purchaser shall use commercially reasonable efforts to cause its lender to accept any indemnification as set forth in this clause (iv)). Notwithstanding the foregoing, if after Purchaser receives delivering an executed Estoppel Certificate for a tenant, such tenant delivers to Seller a written notice from Seller pursuant to of default or a written notice contradicting any material information contained in a previously delivered Estoppel Certificate, such item (iii) Estoppel Certificate shall not be an Acceptable Estoppel unless the default or one (1) business day contradictory statement is cured prior to the Closing Date, deliver notice or deemed to be an Acceptable REA Estoppel or an Acceptable Tenant Estoppel pursuant to this clause (iv). Any indemnity provide by Seller stating either under this clause (Aiv) that Purchaser elects to proceed shall be guaranteed by TRG pursuant to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationattached Joinder.
Appears in 1 contract
Tenant Estoppels. Purchaser shall have received a tenant estoppel certificate At least three (each, a “Tenant Estoppel Certificate” and collectively, 3) business days prior to the Document Delivery Date (the “Tenant Estoppel CertificatesDeadline”), Seller shall deliver to Purchaser an estoppel letter (the “Estoppel Letters”) in substantially in the form attached annexed hereto as Exhibit C B, which Estoppel Letters shall be dated no earlier than the date which is thirty (or30) days prior to Closing, if different, executed by the form and content required tenants under the applicable Lease) from (a) Leases, who in the following tenants (collectively, the “Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with the Major Tenants, aggregate occupy at least seventy eighty-five percent (7085%) of the leased rentable square footage of space in each Building, and specifically including the Property following named tenants (such named tenants, the “Major Tenants”, and the Leases of such tenants, the “Major Leases”): (i) Petrobras; (ii) Precision Drilling; (iii) Crom & Forester; (iv) Ranger Offshore; (v) Fumanite Corp; and (vi) IADC (the “Required Estoppel AmountPercentage”). In determining whether the foregoing requirement has been satisfied, Purchaser agrees not to object to (i) any non-material reasonable qualifications or modifications which tenants may make to the form of Estoppel Letters, and (ii) any modifications to the Estoppel Letters necessary to conform the Estoppel Letters to the requirements of each tenant’s Lease; provided in each case that such qualifications or modifications do not disclose any default and are not inconsistent with the representations of Seller hereunder. If Seller does not deliver sufficient Estoppel Letters to Purchaser to satisfy the Required Estoppel Percentage on or before the Estoppel Deadline, then Purchaser’s sole remedy will be to terminate this Contract by delivering written notice to Seller prior to the Closing Date, in which event the Xxxxxxx Money Deposit and any other funds deposited by Purchaser hereunder shall be refunded to Purchaser; provided, however, that if Purchaser has Seller receives such a termination notice from Purchaser, then Seller may, at Seller’s option either (x) accept such termination notice, or (y): (1) extend the Estoppel Deadline and the Closing Date for a period not notified to exceed twenty-one (21) days to continue Seller’s efforts to obtain sufficient Estoppel Letters to satisfy the Required Estoppel Percentage; and/or (2) execute a Seller Estoppel Letter in writing substantially the same form as the Estoppel Letters with respect to any of the failure Leases for which Estoppel Letters were not obtained in order to satisfy the Required Estoppel Percentage; provided that Seller may not so provide a Seller Estoppel Letter with respect to any of the conditions set forth Major Tenants; and in either of which events, Purchaser’s foregoing termination right, will be stayed unless and until Seller fails to satisfy the Required Estoppel Percentage (either by delivery of Estoppel Letters and/or a Seller Estoppel Letter) on or before the extended Estoppel Deadline. Notwithstanding any provision of this Contract to the contrary, the parties to this Contract acknowledge that some or all of the Leases may include provisions requiring a specific form of tenant estoppel certificate or letter. In such event, Purchaser agrees that delivery by Seller to Purchaser of a tenant estoppel certificate or letter that complies with the respective provisions of any such Lease, shall fully satisfy the provisions of this Section 10.2.2 prior 8, notwithstanding any variance between such documents and the Estoppel Letters. Notwithstanding the Required Estoppel Percentage, Seller shall use commercially reasonable efforts to 5:00 p.m. Pacific Time on obtain Estoppel Letters from all of the tenants under Leases, together with the execution of the joinders and/or reaffirmations thereto by any guarantors under the Leases, and it shall be a condition to the satisfaction of the condition under this Section 8 that day that is the guarantors under any Major Leases so execute a joinder and/or reaffirmation of their respective guaranties. Seller shall deliver to Purchaser copies of all responses received from tenants with respect to requests for Estoppel Letters. Prior to sending the Estoppel Letters to tenants, Seller shall provide Purchaser with copies of same and Purchaser shall have five (5) business days prior within which to Closingprovide Seller with comments to same, these conditions shall be deemed satisfied. Notwithstanding the foregoing, at Seller’s sole option, Seller may extend the Closing Date for up to an additional thirty (30) days in order to satisfy the foregoing requirement in which event Seller shall deliver notice of such extension to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one include such reasonable additions or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination. If Seller acts under item (ii) of the sentence prior changes to the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day prior Estoppel Letters delivered to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationtenants.
Appears in 1 contract
Samples: Contract of Sale (Franklin Street Properties Corp /Ma/)
Tenant Estoppels. Seller shall have delivered to Purchaser, no later than three (3) days prior to the Closing Date, estoppel certificates, substantially in the form of Exhibit C attached hereto or in the form of estoppel required under such tenant's lease or on a national tenant's estoppel form, from (a) all tenants leasing in excess of 7,000 square feet (the "Major Tenants"), (b) each of Apple and Lululemon (collectively, the "Identified Tenants"), and (c) additional tenants such that along with the estoppel certificates from the Major Tenants and the Identified Tenants, Purchaser shall have received a tenant estoppel certificate (each, a “Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”) substantially in the form attached hereto as Exhibit C (or, if different, the form and content required under the applicable Lease) certificates from (a) the following tenants (collectively, the “Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with the Major Tenants, occupy at least seventy seventy-five percent (7075%) of the leased rentable square footage of the Property (“Required Estoppel Amount”); provided, however, if Purchaser has not notified Seller in writing of the failure of the conditions currently leased. The requirements set forth in this Section 10.2.2 prior 3.4 are referred to 5:00 p.m. Pacific Time on that day that is five (5) business days prior to Closing, these conditions shall be deemed satisfied. Notwithstanding herein as the "Tenant Estoppel Requirements." For purposes of the foregoing, at Seller’s sole option, Seller may extend a tenant shall not be considered to be leasing the Property if the term of its lease is month-to-month or expires within six (6) months after the Closing Date for up Date. An estoppel certificate shall not fail to qualify as an additional thirty (30) days in order to satisfy acceptable estoppel certificate if the foregoing requirement in which event Seller shall deliver notice of such extension to Purchaser not less than one applicable tenant (1) day prior inserts "to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates tenant's knowledge" or "in all material respects" or other similar knowledge or materiality qualification to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of statements contained in its estoppel certificate; (2) delivers an estoppel certificate that does not contain any more information than that which the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails tenant is required to deliver a written objection notice to Seller within three give under its Lease; or (3) business days following inserts "approximately" or other similar qualification to the date amount of delivery, such signed Tenant Estoppel Certificates will be deemed approved square feet leased by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Leasetenant. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate under this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) have any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known liability to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event obtain any of the provisions of Section 5.5 of this Agreement shall apply to such terminationforegoing described estoppel certificates. If Seller acts under item does not satisfy the Tenant Estoppel Requirements by the date that is three (ii3) of the sentence prior to the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day prior to the Closing Date, deliver then upon written notice to the other, either party has the right to extend the Closing Date twice by up to one (1) week per extension to provide additional time for Seller stating to satisfy the Tenant Estoppel Requirements provided that the Closing Date shall not be extended by more than a total of two (2) weeks. If Seller does not satisfy the Tenant Estoppel Requirements by the second extended Closing Date, then Purchaser may elect to either (Ay) that Purchaser elects to waive the Tenant Estoppel Requirements and proceed to the Closing without abatement of adjustment to the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (Bz) that Purchaser elects to terminate this Agreement, in which event the provisions of Agreement pursuant to Section 5.5 of this Agreement shall apply to such termination4.4.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Glimcher Realty Trust)
Tenant Estoppels. Purchaser shall have Borrower acknowledges that it is a condition to Lender making the Loan that, on or before the date hereof, Lxxxxx has received a tenant estoppel certificate (each, a “Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”) substantially in the form attached hereto as Exhibit C (or, if different, the form and content required under the applicable Lease) from (a) the following tenants (collectively, the “Major "Minimum Estoppel Requirements"):
(i) a "Clean Tenant Estoppel" from each of the Tenants set forth on Exhibit D (the "Primary Tenants”): Pacific Union Financial"); and
(ii) a "Clean Tenant Estoppel" from a sufficient number of other Tenants at the Property (in addition to the Primary Tenants) that, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together when aggregated with the Major Primary Tenants, occupy at least seventy eighty percent (7080%) of the leased rentable square footage total gross leaseable area of the Property (“Required Estoppel Amount”)Property; provided, however, if Purchaser that, in relation to each Tenant whose estoppel is required to meet the Minimum Estoppel Requirements and for which Lender has not notified Seller in writing received any Tenant Estoppel on or prior to the date hereof, Borrower shall be deemed to certify (each a "Clean Borrower Estoppel Certificate"), as of the failure date hereof, in the place and stead of the conditions such Tenant, all matters set forth in this Section 10.2.2 the Tenant Estoppel on behalf of such Tenant as if a "Clean Tenant Estoppel" had been received by Lender from such Tenant on or prior to 5:00 p.m. Pacific Time on that day the date hereof, and such Clean Borrower Certificates shall be included in determining Borrower's compliance with the Minimum Estoppel Requirements and are collectively referred to herein as the "Deemed Deliveries". A Clean Borrower Estoppel Certificate will not be available for use in satisfying the Minimum Estoppel Requirements with respect to any Tenant Estoppel issued by a Tenant at the Property that is five not a "Clean Tenant Estoppel", exclusive of the MarchFirst Space; provided, further, however, that Borrower shall have ninety (590) business days following the Closing Date, during which period Borrower shall diligently pursue replacing each Clean Borrower Estoppel Certificate by obtaining a "Clean Tenant Estoppel" from each Primary Tenant who failed to deliver such "Clean Tenant Estoppel" prior to Closingthe Closing Date and upon delivery to Lender of such "Clean Tenant Estoppel", these conditions the Clean Borrower Estoppel Certificate delivered to Lender in lieu thereof shall be deemed satisfiednull and void. Notwithstanding Borrower will protect, indemnify and save harmless Lender from and against all liabilities, obligations, claims, damages, loss, penalties, costs and expenses (including, without limitation, all attorney's fees and disbursements) imposed upon, incurred by or asserted against Lender or the foregoing, at Seller’s sole option, Seller may extend the Closing Date for up to an additional thirty (30) days Mortgaged Property and arising from or in order to satisfy the foregoing requirement connection with any inaccuracy or misrepresentation contained in which event Seller shall deliver notice of such extension to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Clean Borrower Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2; provided, however, that as and when Lender shall receive a "Clean Tenant Estoppel" from any Tenant for which a Clean Borrower Estoppel Certificate was deemed delivered on the provisions date hereof, the indemnity provided in this paragraph shall be automatically released in relation to such Tenant. The indemnification obligations contained herein are collectively referred to as the following sentences shall apply with respect "Estoppel Indemnity Obligations". For the purposes of this Section 3(f), the term "Clean Tenant Estoppel" in relation to any Seller default under a Tenant and its Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If mean a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either certifying that: (i) cure such default prior to Closing (Tenant's Lease is in full force and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), effect; (ii) grant Purchaser a credit against the Purchase Price fixed rental payable under the Lease is in an amount as set forth on the amount reasonably necessary rent roll (the "Rent Roll") for the Property delivered to effectuate such cure as reasonably determined by Seller, Lender on or prior to the date hereof; (iii) notify Purchaser that Seller does not intend the term of Lease, including any options to cure renew, and such default or grant Purchaser such credit against Tenant's obligation to pay its proportionate share of operating and other costs is as set forth in the Purchase Price. If Seller acts under item Rent Roll; (iiv) all construction and other obligations of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default a material nature to be corrected at or prior performed by Borrower, as landlord under the Lease have been satisfied, other than as disclosed in writing to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination. If Seller acts under item (ii) of the sentence Lender prior to the foregoing sentencedate hereof; (v) all required payments by Borrower, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) aboveas landlord for tenant improvements have been made, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant other than as disclosed in writing to such item (iii) or one (1) business day Lender prior to the Closing Date, deliver notice to Seller stating either date hereof; (Avi) that Purchaser elects to proceed to there are no existing defenses or offsets which such Tenant has against the Closing without abatement enforcement of the Purchase Price lease by Borrower and without further obligation of Seller in respect of such Tenant Estoppel Certificate has no knowledge of any event which with the giving of notice, the passage of time or both would constitute a default under the Lease, other than as disclosed to Lender in the schedule of arrearages heretofore delivered pursuant to Section 15(a); (Bvii) that Purchaser elects such Tenant is not entitled to terminate this Agreementany offsets, abatements, deductions or otherwise against the rent payable under the Lease from and after the date hereof; and (viii) no rental, other than for the current month, has been paid in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationadvance.
Appears in 1 contract
Samples: Secured Indebtedness Agreement (Parkway Properties Inc)
Tenant Estoppels. Purchaser shall have received a tenant estoppel certificate On or before ten (each, a “10) days prior to the Closing Date ("Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”Deadline") substantially Seller shall deliver (at its expense) to Purchaser estoppels in the form attached hereto as Exhibit C 9.
2.1 A (or, if different, the form and content required under the applicable Lease"Tenant Estoppels") from (a) the following tenants (collectively, the “Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with the Major Tenants, occupy at least seventy percent (70%) executed by each Existing Tenant of the leased rentable square footage of the Property (“Required Estoppel Amount”); provided, however, if Purchaser has not notified Seller in writing of the failure of the conditions set forth in this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is five (5) business days prior to Closing, these conditions shall be deemed satisfied. Notwithstanding the foregoing, at Seller’s sole option, Seller may extend the Closing Date for up to an additional thirty (30) days in order to satisfy the foregoing requirement in which event Seller shall deliver notice of such extension to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the Office Buildings, except as hereafter provided. Provided however, (i) Seller shall use commercially reasonable efforts to obtain a Tenant Estoppel Certificates. executed by Publicis Bloom, Inc. ("Bloom") which currently occupies space at Reverchon Plaza pursuant to a lease dated August 17, 1989, as amended ("Bloom Lease"), but if Seller will deliver Purchaser copies of the signed is unable to obtain a Tenant Estoppel Certificates promptly following Seller’s receipt andfrom Bloom, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure pursuant to deliver any required this Section; (ii) in calculating the percentage of rentable square feet in Reverchon Plaza represented by executed Tenant Estoppel CertificateEstoppels, it being agreed that Purchaser’s sole remedy for such failure the number of rentable square feet leased pursuant to the Bloom Lease shall be excluded, unless Seller is able to terminate this Agreement and receive an immediate refund of secure the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery execution of a Tenant Estoppel Certificate for purposes of this Section 10.2.2by Bloom; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller shall not be in default pursuant to this Section if it delivers on or before the Closing Date Tenant Estoppels and Substitute Certificates representing at least an aggregate of eighty-five percent (85%) of the rentable square feet leased by Existing Tenants as of the Tenant Estoppel Deadline in each Office Building (the "85% Requirement"); and (iv) in the event Seller does not intend to cure such default or grant Purchaser such credit against satisfy the Purchase Price. If Seller acts under item (i) of the foregoing sentence85% Requirement, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s 's sole remedy shall be to waive the requirement and close the transactions hereunder or terminate this Agreement, Agreement in which event the provisions of Section 5.5 of Earnxxx Xxxey shall be returned to Purchaser and thereafter neither party shall have any further rights or obligations pursuant to this Agreement shall apply except pursuant to such terminationSection 21.10. If "Substitute Certificate Condition" means that Seller acts under item (ii) of the sentence prior executes and delivers to the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day prior to the Closing DateDate a written certificate (a "Substitute Certificate"), deliver notice dated as of Closing in substantially the form of Exhibit 9.2.1-B setting forth the information called for in the form of Tenant Estoppel, with respect to any Lease for which Seller stating either has not obtained a Tenant Estoppel as shall be required to provide to Purchaser a combination of Tenant Estoppels and Substitute Certificates with respect to Existing Leases covering not less than eighty-five percent (A85%) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation total rentable square feet of Seller in respect each Office Building covered by Existing Leases (hereafter defined) as of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 date of this Agreement and including each Existing Lease listed on the First Rent Roll. Notwithstanding any provision hereof to the contrary, the Substitute Certificate shall apply survive Closing for a period of six (6) months and then lapse except to such termination.the extent Purchaser has notified Seller in writing of any claim related thereto. If at any time prior to or after the Closing Date Seller obtains a Tenant
Appears in 1 contract
Tenant Estoppels. Purchaser shall have received a Each of GL, POAL and GDHI, as to the portions of the Project owned by each: tenant estoppel certificate certificates as described below which shall be dated not more than forty-five (each45) days prior to the Closing Date:
(i) tenant estoppel certificates executed by each Major Tenant (A) in the appropriate form attached hereto as Exhibit M-1 (as to retail tenants in the Project), a “Tenant Estoppel Certificate” or M-2 (as to office tenants in the Project) or (B) in the form and/or with the substance provided for in the Lease; plus
(ii) tenant estoppel certificates executed by at least 75% of the retail Tenants (by gross leasable area) having greater than 5,000 and collectively, fewer than 10,000 square feet of gross leasable area in the “Tenant Estoppel Certificates”Shopping Center Building or the WT Property (A) substantially in the form attached hereto as Exhibit C M-1 or (orB) in the form and/or with the substance provided for in the Lease; plus
(iii) tenant estoppel certificates from 75% of the remaining retail tenants (i.e., if differentthose with fewer than 5,000 square feet) in the Shopping Center Building and the WT Property (by gross leasable area) and 75% of the remaining office tenants (by net rentable area), such certificates to be (A) in the appropriate form attached hereto as Exhibit M-1 or M-2 (as the case may be) or (B) in the form and/or with the substance provided for in the Lease, provided that to the extent that a tenant described in this paragraph (iii) fails to provide the estoppel certificate required to be delivered hereunder, the form and content required under applicable Seller may, at its election, deliver an estoppel certificate from Seller certifying the applicable Lease) from (a) the following tenants (collectively, the “Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with the Major Tenants, occupy at least seventy percent (70%) substance of the leased rentable square footage of the Property (“Required Estoppel Amount”); provided, however, if Purchaser has not notified Seller in writing of the failure of the conditions matters set forth (A) in this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is five (5) business days prior to Closing, these conditions shall be deemed satisfied. Notwithstanding the foregoing, at Seller’s sole option, Seller may extend the Closing Date for up to an additional thirty (30) days in order to satisfy the foregoing requirement in which event Seller shall deliver notice of such extension to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute as Exhibit M-1 or modified Tenant Estoppel Certificate M-2, as long as same is consistent the case may be or (B) in the form and/or with the applicable Lease. substance provided for in the Lease (the "Seller Estoppel") except that Seller shall not be in default for failure only have the right to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy Seller Estoppels for up to 15% of such failure shall be remaining retail and office tenants (by gross leasable area as to terminate this Agreement retail tenants and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses by net rentable area as to other tenants); plus
(1iv) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or estoppel certificate from Westin in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure form attached hereto as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to ClosingExhibit M-3, provided that if such estoppel certificate is not delivered, Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, deliver a Seller Estoppel with respect thereto in which event the provisions of Section 5.5 of this Agreement shall apply to such termination. If Seller acts under item (ii) of the sentence prior to the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day prior form attached as Exhibit M-4 updated to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed . . Notwithstanding anything to the Closing without abatement contrary contained herein, the certification by (i) a retail tenant of the Purchase Price and without further obligation matters set forth in paragraph15 (audit rights) and/or paragraph 18 (hazardous materials) of Seller in respect of such Tenant Estoppel Certificate the form set forth at Exhibit M-1 or (Bii) that Purchaser elects an office tenant of the matters set forth in paragraph 12 (audit rights) of the form set forth at Exhibit M-2 shall not be a condition to terminate this AgreementPurchaser's obligations to close hereunder, in which event the provisions of Section 5.5 of this Agreement nor shall apply to such terminationit constitute a default by Sellers hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Urban Shopping Centers Inc)
Tenant Estoppels. Purchaser Seller shall have received make commercially reasonable efforts to obtain and deliver to Purchaser, no later than five (5) days prior to the Closing Date (the "Estoppel Return Date"), a tenant estoppel certificate (each, a “Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”) substantially in the form of EXHIBIT "B" attached hereto as Exhibit C (orexecuted by each tenant at the Property; provided, if differenthowever, the form and content required under of tenant estoppel certificate shall reflect appropriate changes thereto for any tenant whose lease requires a different form of tenant estoppel certificate. An executed tenant estoppel certificate in the applicable Leaseform of EXHIBIT "B" (as such form may be changed for any tenant whose lease requires a different form of tenant estoppel certificate) from is herein referred to as a "Tenant Estoppel". Seller shall deliver each executed tenant estoppel certificate to Purchaser (regardless of whether it complies with this Agreement) promptly following Seller's receipt thereof. Notwithstanding anything contained herein to the contrary, it shall be a condition precedent to the obligation of Purchaser to consummate the transaction that is the subject of this Agreement that Seller deliver to Purchaser, on or before the Estoppel Return Date, Tenant Estoppels executed by (a) tenants occupying, in the following tenants (collectivelyaggregate, the “Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with the Major Tenants, occupy at least seventy ninety percent (7090%) of the leased rentable square footage of at the Property, and (b) each tenant that leases more than two thousand (2,000) square feet at the Property (“Required such condition being herein referred to as the "Tenant Estoppel Amount”Condition"); provided. In the event that Seller is unable to satisfy the Tenant Estoppel Condition by the Estoppel Return Date, howeverSeller shall not be in default under this Agreement. However, if Purchaser has the Tenant Estoppel Condition is not notified Seller in writing fulfilled as of the failure of the conditions set forth in this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is five Estoppel Return Date, then, for three (53) business days prior thereafter, Purchaser shall have the option either to Closing(i) waive the Tenant Estoppel Condition, these conditions shall be deemed satisfied. Notwithstanding the foregoing, at Seller’s sole option, Seller may (ii) extend the Closing Date for up to an additional thirty fourteen (3014) days in order to satisfy the foregoing requirement in which event allow Seller shall deliver notice of such extension more time to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a obtain additional tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2estoppel certificates; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event all of the provisions of Section 5.5 of this Agreement Earnest Money shall apply be returned to such terminationPurchaser. If Seller acts under item Purchaser elects to xxxxxx the Closing Date pursuant to clause (ii) of the preceding sentence prior to and the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, Tenant Estoppel Condition is still not fulfilled on or before the earlier expiration of two the fourteen (214) business days after day extension period, then Purchaser receives notice from Seller pursuant to such item may elect one of the options set forth in clauses (i) and (iii) or one (1) business day prior to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationpreceding sentence.
Appears in 1 contract
Tenant Estoppels. Purchaser shall have received It will be a tenant estoppel certificate (each, condition to Purchaser’s obligation to close hereunder that Seller obtain a “Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”) substantially in the form attached hereto as Exhibit C (or, if different, the form and content required under the applicable Lease) from (ai) the following tenants Montefiore Medical Center (collectivelyexcept for its separate lease of 7,300 square feet), the “Major Tenants”): Pacific Union Financial(ii) Tierpoint New York LLC, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (bii) such other tenants whichTenants or, together with the Major sellers under the Other PSAs, “Tenants, occupy at least seventy percent ” under and as defined in the Other PSAs to the extent required to bring the aggregate rented square footage covered by Tenant Estoppels to no less than 75% (70%the “Required Percentage”) of the leased rentable aggregate rented square footage of the Property Improvements under this Agreement and the Other PSAs, on a combined basis and deliver, together with the sellers under the Other PSAs, such Tenant Estoppels to Purchaser at least three (3) Business Days prior to Closing. Notwithstanding anything to the contrary set forth above, in no event shall the square footage demised pursuant to a Lease or a “Required Lease” under and as defined in the Other PSAs, that is scheduled to expire prior to or within sixty (60) days after the Scheduled Closing Date, be included in calculating such rented square footage. Seller has delivered by email to Purchaser’s counsel a draft Tenant Estoppel Amount”); provided, however, if for each Major Tenant. Purchaser has not notified approved the drafts of Major Tenant Estoppels. At a time selected by Seller but in writing of the failure of the conditions set forth in this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is any event no later than five (5) business days prior Business Days after Purchaser’s timely deposit with the Escrow Agent of the Additional Xxxxxxx Money Deposit pursuant to ClosingSection 4.1 above, these conditions shall be deemed satisfied. Notwithstanding the foregoing, at Seller’s sole option, Seller may extend the Closing Date for up to an additional thirty (30) days in order to satisfy the foregoing requirement in which event Seller shall deliver notice a draft Major Tenant Estoppel to each respective Major Tenant for execution. Seller may, but is not required to, deliver by email draft non-Major Tenant Estoppels to Purchaser’s counsel for review and comment. At a time selected by Seller but in any event no later than five (5) Business Days after Purchaser’s timely deposit with the Escrow Agent of such extension the Additional Xxxxxxx Money Deposit pursuant to Section 4.1 above, Seller shall deliver a draft Tenant Estoppel to each respective non-Major Tenant for execution. Seller will use commercially reasonable efforts to obtain and deliver to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2from all Tenants. Furthermore, the Tenant Estoppel Certificate delivered by a tenant Seller shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to Purchaser any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify in the form attached hereto and Purchaser agrees to accept such substitute or modified that Seller receives from a Tenant Estoppel Certificate as long as same is consistent with even if the applicable LeaseRequired Percentage has been achieved. Seller shall not be in default for failure of its obligations hereunder if any Major Tenant or Tenant fails to deliver any required a Tenant Estoppel, or delivers a Tenant Estoppel Certificatewhich is not in accordance with this Agreement. Seller agrees to deliver by email (NOTING IN SUCH EMAIL THE DEEMED APPROVAL PROVISIONS OF THIS SECTION FOR PURCHASER’S FAILURE TO TIMELY RESPOND) to Purchaser (sent to Xxx Xxxxx - xxxxxx@xxxxxx.xxx, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement Xxxxx Spring - xxxxxxx@xxxxxx.xxx, Xxxxxx Xxxxx - xxxxxx@xxxxxx.xxx, Xxxxxxxxx Xxxxxxx - xxxxxxxx@xxxxxx.xxx, Xxxxx Xxxxxx - xxxxxxx@xxxxxx.xxx, Xxxxxxx X. Xxxx, Xx. — xxxxx@xxxxxxxxx.xxx, Xxxxxxxxxxx X. Xxxx — xxxxx@xxxxxxxxx.xxx, Xxxx Xxxxx — xxxxxx@xxxxxxxxx.xxx, and receive an immediate refund of the Deposit from the Escrow Agent. A Xxxxxx Xxxxx - Xxxxxx.Xxxxx@xxx.xxx), each executed Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, within three (3) Business Days after Seller’s receipt of the same from the applicable Tenant. If Purchaser fails to provide comments by email (sent to Xxxxx Xxxxxxx - xxxxxxxx@xxxx-xxxx.xxx, Xxxxxxxx Xxxxx - XXxxxx@xxxx-xxxx.xxx, Xxxxx Xxxxxxx- XXxxxxxx@xxxx-xxxx.xxx, and Miles Xxxxxx - xxxxxxx@xxxxxxxx.xxx) to any material claim or such executed estoppel certificate within three (3) Business Days’ after Purchaser’s receipt thereof by an email containing the requisite deemed approval provisions described in the immediately preceding sentence, Purchaser shall be deemed to have approved and accepted such estoppel certificate, WITH TIME BEING OF THE ESSENCE WITH RESPECT TO PROVIDING ANY SUCH COMMENTS. Notwithstanding anything to the contrary, Purchaser shall have no right to set off against Seller as landlord in favor of object to a tenant which, in each case, was not Tenant Estoppel based on information disclosed by Seller or made available to Purchaser, or otherwise known by Purchaser, if (i) (x) prior to 6:00 p.m. on the Effective Date, Seller has disclosed to Purchaser in the Data Room materials which expressly and clearly confirm, or expressly and clearly support, any statement in such estoppel certificate, or (y) after 6:00 p.m. on the Effective Date, but prior to the expiration of the Feasibility Evaluation Period, or Seller has disclosed to Purchaser by email (4sent to Xxx Xxxxx - XXxxxx@xxxxxx.xxx, and Xxxxxxx Xxxx - XXxxx@xxxxxxxxx.xxx) contains economic lease information that is inconsistent with that shown on the Rent Roll or and by posting in the tenant files for the LeaseData Room, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2materials that are described in such email as “DISCLOSURE MATERIALS” and which expressly and clearly confirm, or expressly and clearly support, any statement in such estoppel certificate; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser obtains actual knowledge prior to the expiration of the Evaluation Period, including, without limitation, as a credit against result of Purchaser’s due diligence tests, investigations and inspections of the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by SellerProperty that expressly and clearly confirm, or (iii) notify Purchaser that Seller does not intend to cure expressly and clearly support, any such default or grant Purchaser statement in such credit against the Purchase PriceTenant Estoppel. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event the provisions of Section 5.5 actual knowledge for all purposes of this Agreement shall apply be deemed to such termination. If Seller acts under item mean the actual knowledge (iias opposed to constructive or imputed) of the sentence prior to the foregoing sentenceXxxxxxx Xxxxx and/or Xxxxxx X. Xxxxx, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on without any independent investigation or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day prior to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationinquiry whatsoever.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Tenant Estoppels. (i) Receipt by Purchaser shall have received a tenant of an executed estoppel certificate certificate, in substantially the form required below (each, a an “Tenant Estoppel Certificate”), from the following tenants (1) each “Anchor Tenant” identified on Exhibit U (individually, an “Anchor Tenant Estoppel” and collectively, the “Anchor Tenant Estoppels”), if, as and to the extent that an Anchor Tenant is contractually obligated to deliver an Estoppel Certificates”) substantially in the form attached hereto as Exhibit C (or, if different, the form and content required under Certificate to the applicable LeaseSeller and (2) from (a) enough of the following remaining tenants (excluding any licensees, or storage, temporary, kiosk or cart tenants) (individually, a “Remaining Tenant Estoppel” and collectively, the “Major TenantsRemaining Tenant Estoppels”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with so that Remaining Tenant Estoppels received by Purchaser cover in the Major Tenants, occupy aggregate at least seventy percent (70%) of the leased rentable square footage of all of the Property Shopping Centers (but in no event less than sixty-five percent (65%) for any one Shopping Center) that is occupied by tenants (excluding any rentable square feet leased by an Anchor Tenant and any licensees, or storage, temporary, kiosk or cart tenant) (such tenants, the “Required Estoppel AmountRemaining Tenants”); provided, however, if Purchaser has not notified Seller in writing that the Remaining Tenant Estoppels must include Estoppel Certificates (collectively, the “Major Tenant Estoppels”) from each “Major Tenant” identified on Exhibit U (collectively, the “Major Tenants”). Subject to the penultimate paragraph of the failure of the conditions set forth in this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is five 4.1, each Estoppel Certificate shall be dated no earlier than sixty (560) business days prior to Closing; provided, these conditions however, Purchaser shall be deemed satisfied. Notwithstanding have the foregoing, at Seller’s sole option, Seller may right to extend the Closing Date for up a period not to exceed an additional thirty (30) days (subject to Section 5.1(e) below), in order to satisfy the foregoing requirement in which event Seller that Purchaser’s lender shall deliver notice of such extension to Purchaser not less than one accept any Estoppel Certificate because (1) day prior of its date, in which case the applicable Seller agrees to use commercially reasonable efforts to obtain a confirmation or update of any Estoppel Certificate previously delivered, as required by Purchaser’s lender, or (2) it is not certified to Purchaser, Purchaser’s lender and their successors and assigns, in which case the then existing Closing Date. In order applicable Seller agrees to use commercially reasonable efforts to obtain a confirmation or update of any Estoppel Certificate previously delivered, as required by Purchaser’s lender; provided, however, that obtaining any such confirmation or update to an Estoppel Certificate is not a condition precedent to Purchaser’s obligations hereunder.
(ii) The Anchor Tenant Estoppels and the Remaining Tenant Estoppels (including the Major Tenant Estoppels) shall each be in substantially the same form of Exhibit P-2 or, in each case, such other form as is specified in the applicable Lease or containing such information as is expressly specified in the applicable Lease to be treated as a delivered Tenant Estoppel Certificate for purposes of provided by the tenant thereunder, provided that any estoppel certificate under this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant 4.1(f) shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the acceptable (an “Acceptable Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, Estoppel”) if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, only if it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material subject to Sections 4.1(f)(iii) and (iv) below, does not indicate the existence of an actual landlord default by a tenant under the applicable Lease (other than minor technical or Seller as landlord de minimis breaches), (2) confirms the amount of current base monthly rent under the applicable Lease, (23) does not indicate any material adverse document conflict with or term constituting part contain information contradictory to the terms and conditions of the Lease, applicable Lease (3other than minor technical or de minimis conflicts or contradictions) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or and (4) contains economic lease information does not state that the applicable Lease is inconsistent with that shown on not in full force and effect.
(iii) Sellers shall have the Rent Roll or in the tenant files for the Leaseoption, but shall not be deemed required, to execute an estoppel certificate in the form of Exhibit P-3 attached hereto (“Seller Estoppel”) for Remaining Tenants other than the Major Tenants (“Other Tenants”) who have not provided an Estoppel Certificate in order to satisfy the estoppel threshold required to be obtained by Sellers in Section 4.1(f)(i)(2) (the delivery of a Tenant “Estoppel Certificate for purposes of this Section 10.2.2Threshold”); provided, however, that the provisions aggregate square footage of leased premises with respect to each Shopping Center for which Seller Estoppels may be delivered by Seller in lieu of Estoppel Certificates in order to satisfy the following sentences Estoppel Threshold shall apply not exceed (1) ten percent (10%) of the leased rentable square footage of Other Tenants with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate one Shopping Center and (z2) five percent (5%) of the provisions leased rentable square footage of ARTICLE VII shall apply Other Tenants with respect to all the Shopping Centers. Notwithstanding the foregoing, Seller Estoppels shall not satisfy the Estoppel Threshold if Purchaser’s lender does not permit such Seller Estoppel to satisfy the Estoppel Threshold; provided that Purchaser shall use its commercially reasonable efforts to cause its lender to accept any materially untrue Seller Estoppel or other assurances from Seller or TRG, which they are willing to provide, in their sole discretion.
(iv) Any REA Estoppel that does not meet the requirements of an Acceptable REA Estoppel, or Estoppel Certificate that does not meet the requirements of an Acceptable Tenant Estoppel shall be deemed to be an Acceptable REA Estoppel or Acceptable Tenant Estoppel, as applicable, if the applicable Seller agrees to indemnify Purchaser for the monetized value of the disclosed default or claim (collectively, “REA/Tenant Claims”), prior to the Closing; provided that if the aggregate amount of REA/Tenant Claims at a Shopping Center is equal to or greater than Five Million Dollars ($5,000,000.00), this condition precedent shall not be satisfied and Purchaser, at its option, may either (1) require that such Seller indemnify Purchaser or Purchaser’s lender for such REA/Tenant Claims, or (2) have the rights described in the final paragraph of this Section 4.1; provided, further, however that if Purchaser’s lender does not find Seller’s Representations disclosed by such or TRG’s indemnification of Purchaser under this clause (iv) as an acceptable remedy to cure any REA/Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s LeaseClaims, then Seller this condition precedent shall not be satisfied and Purchaser shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days rights described in the aggregate) final paragraph of this Section 4.1 (provided that Purchaser shall use commercially reasonable efforts to effectuate cause its lender to accept any indemnification as set forth in this clause (iv)). Notwithstanding the foregoing, if after delivering an executed Estoppel Certificate for a tenant, such cure), (ii) grant Purchaser tenant delivers to the applicable Seller a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such written notice of default or grant Purchaser a written notice contradicting any material information contained in a previously delivered Estoppel Certificate, such credit against Estoppel Certificate shall not be an Acceptable Estoppel unless the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller or contradictory statement is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination. If Seller acts under item (ii) of the sentence prior to the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day cured prior to the Closing Date, deliver notice or deemed to Seller stating either be an Acceptable REA Estoppel or an Acceptable Tenant Estoppel pursuant to this clause (Aiv). Any indemnity provide by Sellers under this clause (iv) that Purchaser elects to proceed shall be guaranteed by TRG pursuant to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationattached Joinder.
Appears in 1 contract
Tenant Estoppels. Purchaser Seller shall have received a tenant estoppel certificate (eachmake commercially reasonable efforts to obtain and deliver to Purchaser, a “Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”) substantially in the form attached hereto as Exhibit C (or, if different, the form and content required under the applicable Lease) from (a) the following tenants (collectively, the “Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with the Major Tenants, occupy at least seventy percent (70%) of the leased rentable square footage of the Property (“Required Estoppel Amount”); provided, however, if Purchaser has not notified Seller in writing of the failure of the conditions set forth in this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is no later than five (5) business days prior to Closingthe Closing Date (the “Estoppel Return Date”), these conditions a tenant estoppel certificate in substantially the form of Exhibit K attached hereto executed by each tenant at the Property; provided, however, the form of tenant estoppel certificate shall reflect appropriate changes thereto for any tenant that has specific requirements in its Lease regarding the form of the tenant estoppel certificate. An executed tenant estoppel certificate in the form of Exhibit K (as such form may be changed for any tenant that has specific requirements in its Lease regarding the form of the tenant estoppel certificate) is herein referred to as a “Tenant Estoppel.” Seller shall deliver each Tenant Estoppel to Purchaser (regardless of whether it complies with this Agreement) promptly following Seller’s receipt thereof. Notwithstanding anything contained herein to the contrary, it shall be deemed satisfied. Notwithstanding a condition precedent to the foregoingobligation of Purchaser to consummate the transaction that is the subject of this Agreement that Seller deliver to Purchaser, on or before the Estoppel Return Date, Tenant Estoppels executed by (a) tenants occupying, in the aggregate, at Seller’s sole optionleast ninety percent (90%) of the leased square footage at the Property, and (b) each tenant that leases more than four thousand (4,000) square feet at the Property (such condition being herein referred to as the “Tenant Estoppel Condition”). In the event that Seller is unable to satisfy the Tenant Estoppel Condition by the Estoppel Return Date, Seller may shall not be in default under this Agreement. However, if the Tenant Estoppel Condition is not fulfilled as of the Estoppel Return Date, then, for three (3) business days thereafter, Purchaser shall have the option either to (i) waive the Tenant Estoppel Condition, (ii) extend the Closing Date for up to an additional thirty fourteen (3014) days in order to satisfy the foregoing requirement in which event allow Seller shall deliver notice of such extension more time to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2obtain additional estoppel certificates; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event all of the provisions of Section 5.5 of this Agreement Xxxxxxx Money shall apply be returned to such terminationPurchaser. If Seller acts under item Purchaser elects to extend the Closing Date pursuant to clause (ii) of the preceding sentence prior to and the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, Tenant Estoppel Condition is still not fulfilled on or before the earlier expiration of two the fourteen (214) business days after day extension period, then Purchaser receives notice from Seller pursuant to such item may elect one of the options set forth in clauses (i) and (iii) or one (1) business day prior to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationpreceding sentence.
Appears in 1 contract
Samples: Limited Partnership Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Tenant Estoppels. Purchaser It is a condition precedent to Purchaser’s obligation to proceed to close hereunder that, on or before the date that is three (3) Business Days prior to the Closing Date (the “Estoppel Deadline”) Seller shall have received a tenant and provided to Purchaser estoppel certificate (eachcertificates, a “Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”) substantially in the form attached hereto as Exhibit C F without material modification (or, if different, except such certificate need only comply with the provisions of any Lease that specify the form and or content required under of an estoppel to be delivered by the applicable Leasetenant thereunder) (each, a “Tenant Estoppel”) from the Key Tenants (aas defined in the Basic Provisions) the following tenants (collectively, the “Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such from other tenants whichwhich in the aggregate, together with the Major Key Tenants, occupy lease at least seventy seventy-five percent (7075%) of the leased rentable square footage of the Property Improvements leased to all tenants (the “Required Estoppel AmountPercentage”); provided, however, if Purchaser has not notified Seller all in writing accordance with and subject to the provisions of the failure of the conditions set forth in this Section 10.2.2 prior 6.4. Seller will furnish Purchaser copies of Tenant Estoppels promptly following receipt. In the event that Seller is unable to 5:00 p.m. Pacific Time deliver the Required Estoppel Percentage of Tenant Estoppels on that day that is five (5) business days prior to Closingor before the Estoppel Deadline, these conditions shall be deemed satisfied. Notwithstanding the foregoingSeller, at Seller’s its sole option, Seller may extend the Closing Date for up to execute an additional thirty (30) days estoppel certificate in order to satisfy the foregoing requirement in which event Seller shall deliver notice of such extension to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify substantially the form attached hereto as Exhibit F (except such certificate need only comply with the provisions of any Lease that specify the form or content of an estoppel to be delivered by the tenant thereunder) (each, a “Seller Estoppel”) on behalf of the tenants necessary to meet the Required Estoppel Percentage and deliver same to Purchaser agrees to accept on or before the Estoppel Deadline; provided, that (a) Seller’s liability under any such substitute or modified Seller Estoppel so executed and delivered by Seller shall cease and terminate upon the earlier of the receipt by Purchaser following the Closing of a duly executed Tenant Estoppel Certificate as long as same is consistent with from the applicable Lease. tenant or the date that is nine (9) months after the Closing Date, (b) Seller shall not be in default for failure permitted to deliver any required execute a Tenant Estoppel Certificateon behalf of any Key Tenant, it being agreed that Purchaser’s sole remedy (c) Seller shall not be permitted to execute Tenant Estoppels for other tenants (i.e., non-Key Tenants) under leases covering more than ten percent (10%) of the total rentable square footage of the Improvements leased to all such failure other tenants, and (d) any Seller Estoppel shall be expressly subject to the limitations set forth in Sections 9.3 and 9.4 of this Agreement. Subject to the preceding sentence, each Seller Estoppel shall survive Closing. If Seller is unable to provide Purchaser with Tenant Estoppels (and does not elect to provide a Seller Estoppel) for the Required Estoppel Percentage of Tenant Estoppels in compliance with the provisions of this Section 6.4, then Purchaser, as its sole remedies and recourses, may either (1) waive the estoppel requirement and proceed to Closing without any reduction in the Purchase Price or (2) terminate this Agreement by immediate written notice thereof to Seller, whereupon the Xxxxxxx Money shall be immediately returned to Purchaser, and receive an immediate refund the parties hereto shall have no further rights or obligations, other than those that by their terms survive the termination of this Agreement. An estoppel from a Tenant shall not constitute a “Tenant Estoppel” under this Section 6.4 if: (A) the terms of the Deposit lease and other agreements confirmed by the estoppel are materially different from the Escrow Agent. A Tenant Estoppel Certificate that discloses terms in the Property Documents; (1B) a material default by a the tenant or Seller as landlord under the applicable Lease, (2) modifies any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was statements which discloses materially adverse matters and about which Purchaser had not disclosed by Seller or otherwise known to Purchaser received written notice prior to the expiration of the Feasibility Inspection Period, or (4C) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery indicates any of a Tenant Estoppel Certificate for purposes of this Section 10.2.2; provided, however, that the provisions in the following sentences shall apply with respect which has not been previously disclosed to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) Purchaser in writing prior to the provisions expiration of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either Inspection Period: (i) cure such that Seller is in material default prior pursuant to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure)respective Lease, (ii) grant that the tenant as a material claim or material offset right for which Seller is unwilling or unable to give Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Sellercash at Closing, or (iii) notify Purchaser that there is a material dispute. Additionally, Seller does not intend hereby agrees to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) deliver to each of the foregoing sentencetenants under the Leases Purchaser’s (or its lender’s) form of subordination, then Seller non-disturbance and attornment agreement, which shall endeavor to cure not be factually inaccurate or contain any manifest, errors provided that in no event shall the applicable default receipt of such subordination, non-disturbance or attornment agreements by Seller prior Purchaser or its lender be a condition to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination. If Seller acts under item (ii) of the sentence prior to the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day prior to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hines Real Estate Investment Trust Inc)
Tenant Estoppels. Purchaser shall have received a tenant estoppel certificate Notwithstanding anything contained in Section 6.2 of the Agreement to the contrary, Seller will use good faith efforts to obtain either (each, a “Tenant Estoppel Certificate” and collectively, the “Tenant "New Estoppel Certificates”Requirement"): (i) an Estoppel Certificate substantially in the form attached hereto as Exhibit C "C" or (or, if different, ii) a reliance letter substantially in the form and content required under the applicable Lease) attached hereto as Exhibit "D" from (aA) the following tenants each of (i) Japan Inn, (ii) Brasero Grill, (iii) East City Grill, (iv) Xxxxxxxxxx'x Pizzeria, (v) Tarpon Bend Restaurant, (vi) Wild Hare and (vii) Swig (collectively, the “Major "Estoppel Tenants”): Pacific Union Financial"), Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; (B) Publix substantially in the form attached to this First Amendment as Exhibit "G" and (bC) such other tenants which, together representing (in combination with the Major Tenants, occupy at least seventy other estoppel certificates) no less than ninety percent (7090%) of the leased rentable square footage total space and rental income of the Property (“Required Purchaser and Seller acknowledge and agree that the new estoppel certificate or reliance letter obtained from the Estoppel Amount”Tenants will be included in, and count towards, achieving the ninety percent (90%) requirement described herein); provided, however, if Purchaser has not notified Seller in writing . All Estoppel Certificates which are dated within sixty (60) days of the failure date of the conditions closing will be accepted and counted toward achieving the ninety percent (90%) requirement described herein and will be accepted by Column. If the New Estoppel Requirement is not achieved, Seller will not be in default under the Agreement or this Amendment, and Purchaser will, at Purchaser's option, elect, prior to the extended Closing Date set forth in Section 2 above, either to: (i) terminate the Agreement and the parties hereto will be relieved of any further liability arising out of or from the Agreement and this Section 10.2.2 prior Amendment (except for the obligations thereunder and hereunder specifically designated as surviving such termination) and the Deposits and accrued interest will be returned to 5:00 p.m. Pacific Time on that day that is five Purchaser, or (5ii) business days prior proceed to ClosingClosing without any reduction in the Purchase Price. Seller expressly disclaims making any express or implied representation, these conditions shall be deemed satisfied. Notwithstanding the foregoingwarranty, at Seller’s sole option, Seller may extend the Closing Date for up to an additional thirty (30) days in order to satisfy the foregoing requirement in which event Seller shall deliver notice of such extension to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates or guaranty whatsoever with regard to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of information contained in the signed Tenant Estoppel Certificates promptly following Seller’s receipt andor reliance letters. Notwithstanding anything contained herein or in the Agreement to the contrary, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges and agrees that the tenants may use their own form of Tenant deletions in the Estoppel Certificate and the Subordination, Non-Disturbance and Attornment Agreement made by M Squared Enterprises, LLC (d/b/a SWIG) will not render the Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate SNDA issued thereby ineffectual for purposes of this satisfying the New Estoppel Requirement or the SNDA requirements in Section 10.2.2; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination. If Seller acts under item (ii) of the sentence prior to the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day prior to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination9.A. below.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Arvida JMB Partners L P)
Tenant Estoppels. Purchaser shall have received It is a tenant estoppel certificate (each, a “condition precedent to Purchaser's objections hereunder that Seller obtain fully executed Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”) substantially Certificates in the form of Exhibit B attached hereto as Exhibit C (or, if different, the form and content required under the applicable Lease) made a part hereof from (ai) the following tenants (collectivelyWinn-Dixie, the “Major Tenants”): Pacific Union FinancialInc., Xxxxx 000 xxx Xxxxx 000Big "B" Xxxx Xxxxes, Xxxxxxxxx XxxxxLos Bravos Mexican Restaurant, Suite 600McDonalds Corporation, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 SOM Video Wonderland and ProMark Financial, Suite 920; Cambridge Cleaners and (bii) such other 80% of all remaining tenants which, together with the Major Tenants, occupy at least seventy percent (70%) of the leased rentable square footage of the Property (“Required computed on the basis of net rentable square feet) ("Other Tenants") and (iii) Tenant Estoppel Amount”); providedCertificates executed by Seller on behalf of all Other Tenants who do not furnish Tenant Estoppel Certificates within ten (10) days prior to the Closing hereunder. In the event that (a) Seller does not deliver to Purchaser fully executed Tenant Estoppel Certificates as aforesaid within the time period set forth herein, however(b) any Tenant Estoppel Certificate delivered to Purchaser indicates a default by the Landlord under the Lease, which default is not cured by Seller on or prior to Closing or (c) any information contained on any Tenant Estoppel Certificate delivered to Purchaser materially differs from the information set forth in the leases of the Property previously delivered to Purchaser pursuant to the terms of Paragraph 3.2 hereof, (A) Purchaser will have the right to terminate this Agreement upon notice to Seller given at any time on or prior to Closing and, in such event, the Deposit will be returned to Purchaser and this Agreement will terminate without further liability on the part of Seller or Purchaser, other than Purchaser's indemnity contained in Paragraph 8.17 hereof, or (B) if Purchaser has not notified Seller in writing of the failure of the conditions set forth in terminated this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is five (5) business days prior to Closing, these conditions shall be deemed satisfied. Notwithstanding the foregoing, at Seller’s sole option, Seller may extend the Closing Date for up to an additional thirty (30) days in order to satisfy the foregoing requirement in which event Seller shall deliver notice of such extension to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated Agreement as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2aforesaid, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated purchase and sale will close without regard to deliver updates to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination. If Seller acts under item (ii) of the sentence prior to the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day prior to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationParagraph 4.
Appears in 1 contract
Tenant Estoppels. Purchaser Seller shall have received a tenant estoppel certificate (eachmake commercially reasonable efforts to obtain and deliver to Purchaser, a “Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”) substantially in the form attached hereto as Exhibit C (or, if different, the form and content required under the applicable Lease) from (a) the following tenants (collectively, the “Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with the Major Tenants, occupy at least seventy percent (70%) of the leased rentable square footage of the Property (“Required Estoppel Amount”); provided, however, if Purchaser has not notified Seller in writing of the failure of the conditions set forth in this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is no later than five (5) business days prior to Closingthe Closing Date (the “Estoppel Return Date”), these conditions a tenant estoppel certificate in substantially the form of Exhibit K attached hereto executed by each tenant at the Property; provided, however, the form of tenant estoppel certificate shall reflect appropriate changes thereto for any tenant that has specific requirements in its Lease regarding the form of the tenant estoppel certificate. An executed tenant estoppel certificate in the form of Exhibit K (as such form may be changed for any tenant that has specific requirements in its Lease regarding the form of the tenant estoppel certificate) is herein referred to as a “Tenant Estoppel.” Seller shall deliver each Tenant Estoppel to Purchaser (regardless of whether it complies with this Agreement) promptly following Seller’s receipt thereof. Notwithstanding anything contained herein to the contrary, it shall be deemed satisfied. Notwithstanding a condition precedent to the foregoingobligation of Purchaser to consummate the transaction that is the subject of this Agreement that Seller deliver to Purchaser, on or before the Estoppel Return Date, Tenant Estoppels executed by (a) tenants occupying, in the aggregate, at Seller’s sole optionleast ninety percent (90%) of the leased square footage at the Property, and (b) each tenant that leases more than four thousand (4,000) square feet at the Property (such condition being herein referred to as the “Tenant Estoppel Condition”). In the event that Seller is unable to satisfy the Tenant Estoppel Condition by the Estoppel Return Date, Seller may shall not be in default under this Agreement. However, if the Tenant Estoppel Condition is not fulfilled as of the Estoppel Return Date, then, for three (3) business days thereafter, Purchaser shall have the option either to (i) waive the Tenant Estoppel Condition, (ii) extend the Closing Date for up to an additional thirty fourteen (3014) days in order to satisfy the foregoing requirement in which event allow Seller shall deliver notice of such extension more time to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2obtain additional estoppel certificates; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event all of the provisions of Section 5.5 of this Agreement Exxxxxx Money shall apply be returned to such terminationPurchaser. If Seller acts under item Purchaser elects to extend the Closing Date pursuant to clause (ii) of the preceding sentence prior to and the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, Tenant Estoppel Condition is still not fulfilled on or before the earlier expiration of two the fourteen (214) business days after day extension period, then Purchaser receives notice from Seller pursuant to such item may elect one of the options set forth in clauses (i) and (iii) or one (1) business day prior to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationpreceding sentence.
Appears in 1 contract
Samples: Liquidating Trust Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Tenant Estoppels. Purchaser shall have received a tenant estoppel certificate certificates (each, a “Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”i) substantially in the form attached hereto as Exhibit C (orH, if different, or the form and content required under by the applicable LeaseLeases, (ii) from (a) the following tenants (collectively, the other than Potlatch Corporation (“Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with the Major Tenants, occupy at least seventy Potlatch”))occupying not less than one hundred percent (70100%) in the aggregate of the leased net rentable square footage of space in the Property (“Required Estoppel Amount”)Properties then closing; provided, however, if Purchaser has not notified Seller in writing of the failure of the conditions condition set forth in this Section 10.2.2 10.1.1 prior to 5:00 p.m. Pacific Time on that day that is five (5) business days Central time prior to Closing, these conditions this condition shall be deemed satisfied. Notwithstanding the foregoing, at Seller’s sole option, Seller may (i) extend the applicable Closing Date for up to an additional thirty (30) days (but, in no event, later than November 5, 2004) in order to satisfy the foregoing requirement requirement, in which event Seller shall deliver notice of such extension to Purchaser not less than one (1) day prior to the then existing applicable Closing Date, and/or (ii) provide its own estoppel (“Seller’s Estoppel”) in the form attached as Exhibit I to Purchaser in satisfaction of any or all of the foregoing requirements. In order the event that, after the applicable Closing, Seller delivers to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by Purchaser a tenant estoppel certificate from a tenant for whom Seller executed a Seller’s Estoppel at the applicable Closing and such tenant estoppel certificate contains no information which is contradictory to or inconsistent with the information contained in the Seller’s Estoppel, then Seller thereafter shall be dated no earlier than the Effective Datereleased from all liability relating to Seller’s Estoppel with respect to such tenant’s Lease. In no event shall Seller be obligated to deliver updates to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following tenant estoppel certificate or Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination. If Seller acts under item (ii) of the sentence prior to the foregoing sentence, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day prior to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationEstoppel.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Centerpoint Properties Trust)
Tenant Estoppels. Purchaser POPLP shall have received endeavor to obtain estoppel certificates (a) in a tenant estoppel certificate form that is substantially similar to either: (eachi) the applicable form set forth on Exhibit 20 annexed hereto, as populated with the information left blank with respect to each specific Lease and subject to such modifications as shall be made by each Tenant; (ii) substantially in the form provided for in the applicable Lease; or (iii) as delivered by a “Tenant Estoppel Certificate” and collectively, within the two hundred ten (210) day period prior to the Effective Date with such updates as may be made by such Tenants (the “Tenant Estoppel Certificates”) substantially and from each Tenant occupying more than 7,000 square feet in the form attached hereto as Exhibit C Buildings, it being understood that the Estoppel Threshold (or, defined below) shall be deemed satisfied if different, the form and content required under the applicable Lease) POPLP delivers Tenant Estoppel Certificates from (aA) each Tenant occupying, in the following tenants aggregate, more than 75,000 square feet of space in a Building as of the Effective Date as listed on Exhibit 21 (collectively, the “Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; ) and (bB) such other tenants which, together with the from all Tenants (including all Major Tenants), occupy in occupancy of any portion of the Real Property as of the Effective Date with an aggregate of amount of square feet collectively representing at least seventy percent (70%) 75% of the leased rentable aggregate square footage of in the Property Buildings that is currently leased to commercial office Tenants (the “Required Estoppel AmountThreshold”); provided, however, if Purchaser has . The parties acknowledge that an estoppel certificate shall not notified Seller in writing of the failure of the conditions set forth in this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is five (5) business days prior to Closing, these conditions shall be deemed satisfied. Notwithstanding the foregoing, at Seller’s sole option, Seller may extend the Closing Date for up to an additional thirty (30) days in order to satisfy the foregoing requirement in which event Seller shall deliver notice of such extension to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2, the Tenant Estoppel Certificate delivered by a tenant shall be dated no earlier than the Effective Date. In no event shall Seller be obligated to deliver updates to any of the Tenant Estoppel Certificates. Seller will deliver Purchaser copies of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify the form attached hereto and Purchaser agrees to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) contains any material adverse document modifications or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known to Purchaser prior inconsistencies with respect to the expiration of the Feasibility Period, Leases or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or if it shall disclose any alleged material default or unfulfilled material obligation on the part of the landlord not previously disclosed in writing to each Purchasing Party (in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (zData Room) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination. If Seller acts under item (ii) of the sentence prior to the foregoing sentenceEffective Date (such estoppel certificate, then Seller will grant Purchaser the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant to such item (iii) or one (1) business day prior to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationa “Disregarded Estoppel”).
Appears in 1 contract
Samples: Omnibus Contribution and Partial Interest Assignment Agreement (Parkway, Inc.)
Tenant Estoppels. Purchaser Seller shall have received a tenant delivered to Purchaser, no later than three (3) days prior to the Closing Date: (i) estoppel certificate (eachcertificates, a “Tenant Estoppel Certificate” and collectively, the “Tenant Estoppel Certificates”) substantially in the form of Exhibit E-1 attached hereto as Exhibit C (or, if different, or in the form and content of estoppel required under the applicable Lease) such tenant's lease, from (a) the following tenants (collectively, the “Major Tenants”): Pacific Union Financial, Xxxxx 000 xxx Xxxxx 000, Xxxxxxxxx Xxxxx, Suite 600, Xxxxxx Xxxxxx, Suite 700, The Planning Center, Xxxxx 0000, Xxxxxx, Aitkin & Xxxx, Suite 800 and ProMark Financial, Suite 920; and (b) such other tenants which, together with the Major Tenants, occupy leasing at least seventy eighty percent (7080%) of the leased rentable square footage of the Property currently leased (“Required Estoppel Amount”); provided, however, if Purchaser has not notified Seller in writing of the failure of the conditions set forth in this Section 10.2.2 prior to 5:00 p.m. Pacific Time on that day that is five (5) business days prior to Closing, these conditions shall be deemed satisfied. Notwithstanding the foregoing, at Seller’s sole option, Seller may extend the Closing Date for up to an additional thirty (30) days in order to satisfy the foregoing requirement in which event Seller shall deliver notice of such extension to Purchaser not less than one (1) day prior to the then existing Closing Date. In order to be treated as a delivered Tenant Estoppel Certificate for purposes of this Section 10.2.2provision, the Tenant Estoppel Certificate delivered by a tenant shall not be dated no earlier than the Effective Date. In no event shall Seller considered to be obligated to deliver updates to any leasing a portion of the Property if the term of its lease is month-to-month or expires within six (6) months after the Closing Date), excepting the Anchors (the "Tenant Estoppel Certificates. Estoppels") and which shall include all tenants occupying space of 10,000 square feet or more, all Limited divisions, the Gap, CVS, Vision World and Disc Jockey (the "Tenant Estoppels"), excepting the Anchors; (ii) estoppel certificates, substantially in the form of Exhibit E-1 attached hereto, or in the form of estoppel customarily given, by Sears and JC Penney (the "Anchor Lease Estoppels") and all tenants occupying space of 10,000 square feet or more, all Limited divisions, the Gap, CVS, Vision World and Disc Jockey; it being understood that Seller will deliver Purchaser copies shall submit to all of the signed Tenant Estoppel Certificates promptly following Seller’s receipt and, if Purchaser fails to deliver a written objection notice to Seller within three (3) business days following tenants the date of delivery, such signed Tenant Estoppel Certificates will be deemed approved by Purchaser. Purchaser acknowledges that the tenants may use their own form of Tenant Estoppel Certificate or may modify estoppel attached hereto as Exhibit E-1; and (iii) estoppel certificates, substantially in the form of Exhibit E-2 attached hereto hereto, or in the form of estoppel customarily given, by Bon Ton and Purchaser agrees Boscov's (the "REA Estoppels"). The Tenant Estoppels, Anchor Lease Estoppels, and REA Estoppels shall be collectively referred to accept such substitute or modified Tenant Estoppel Certificate as long as same is consistent with the applicable Lease. "Necessary Estoppels." Seller shall not be in default for failure to deliver any required Tenant Estoppel Certificate, it being agreed that Purchaser’s sole remedy for such failure shall be to terminate under this Agreement and receive an immediate refund of the Deposit from the Escrow Agent. A Tenant Estoppel Certificate that discloses (1) a material default by a tenant or Seller as landlord under the applicable Lease, (2) have any material adverse document or term constituting part of the Lease, (3) any material claim or right to set off against Seller as landlord in favor of a tenant which, in each case, was not disclosed by Seller or otherwise known liability to Purchaser prior to the expiration of the Feasibility Period, or (4) contains economic lease information that is inconsistent with that shown on the Rent Roll or in the tenant files for the Lease, shall not be deemed to be the delivery of a Tenant Estoppel Certificate for purposes of this Section 10.2.2; provided, however, that the provisions in the following sentences shall apply with respect to any Seller default under a Lease which is disclosed by such Tenant Estoppel Certificate and (z) the provisions of ARTICLE VII shall apply with respect to any materially untrue Seller’s Representations disclosed by such Tenant Estoppel Certificate. If a Tenant Estoppel Certificate delivered by a tenant discloses a default by Seller under such tenant’s Lease, then Seller shall have the right, at Seller’s sole option, to either (i) cure such default prior to Closing (and Seller shall be entitled to adjourn the Closing one or more times (but for not more than fifteen (15) days in the aggregate) to effectuate such cure), (ii) grant Purchaser a credit against the Purchase Price in the amount reasonably necessary to effectuate such cure as reasonably determined by Seller, or (iii) notify Purchaser that Seller does not intend to cure such default or grant Purchaser such credit against the Purchase Price. If Seller acts under item (i) of the foregoing sentence, then Seller shall endeavor to cure the applicable default by Seller prior to Closing, provided that if Seller is unable to cause such default to be corrected at or prior to Closing, then Purchaser’s sole remedy shall be to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such termination. If Seller acts under item (ii) obtain any of the sentence prior Necessary Estoppels. Further, even after Seller obtains the Necessary Estoppels, Seller shall use commercially reasonable efforts to obtain the foregoing sentence, then Seller will grant remaining estoppels and Purchaser shall have the credit at Closing required under clause (ii) above. If Seller acts under item (iii) above, then Purchaser shall, on or before the earlier of two (2) business days after Purchaser receives notice from Seller pursuant ability to such item (iii) or one (1) business day prior to the Closing Date, deliver notice to Seller stating either (A) that Purchaser elects to proceed to the Closing without abatement of the Purchase Price and without further obligation of assist Seller in respect of procuring such Tenant Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement, in which event the provisions of Section 5.5 of this Agreement shall apply to such terminationestoppels.
Appears in 1 contract
Samples: Purchase and Sale Agreement (CBL & Associates Properties Inc)
