The Closing; Closing Deliveries. 4.1 The closing of the transaction provided for in this Agreement (the "CLOSING") will be held at a time and place mutually agreed between the parties on the first business day following the satisfaction of the conditions set forth in Section 3.1 (the "SCHEDULED CLOSING DATE"); PROVIDED that Purchaser shall have a one-time right to schedule the Closing on a business day occurring at any time within 60 days following the Scheduled Closing Date. The date on which the Closing occurs is referred to as the "CLOSING DATE." 4.2 At the Closing, Seller shall deliver the following to Purchaser: (i) a general warranty deed duly executed and acknowledged by Seller, in proper statutory form for recording, so as to convey to Purchaser fee simple title to the Property, subject to and in accordance with the provisions of this Agreement (the "DEED"); (ii) [Intentionally Omitted] (iii) an instrument (the "ASSIGNMENT") duly executed and acknowledged by Seller, in which Seller assigns to Purchaser all of Seller's right, title and interest as landlord in, to and under the leases or tenancies of all tenants and other occupants of the Property (the "LEASES") and the security deposits with interest to the extent provided in such Leases (which security deposits and interest amounts shall be paid over to Purchaser at the Closing or credited against other amounts payable by Seller to Purchaser at the Closing); (iv) a list of the current rents now being collected on each of the apartment units in the Property which includes: apartment number, unit type, tenant name, commencement and termination dates, lease rent and security deposits (including parking deposits and last month's rent, if any); (v) an instrument duly executed and acknowledged by Seller in which Seller assigns to Purchaser all of Seller's right, title and interest in and to the utility deposits, if any, described in Section 4.5 hereof; (vi) all other instruments and documents, including a statement of adjustments, provided for herein; Seller shall also make any other payments required by this Agreement to be paid by Seller; (vii) an affidavit executed by or on behalf of Seller providing Seller's taxpayer identification number and a statement that Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Internal Revenue Code, as amended and the regulations promulgated thereunder; (viii) the keys to the Property; (ix) an instrument duly executed and acknowledged by Seller in which Seller assigns to Purchaser all of Seller's right, title and interest under any service or management contracts effecting the Property (the "SERVICE CONTRACTS") in effect as at the Closing Date, which instrument shall contain no warranties, express or implied; (x) a letter to all tenants or other occupants of the Property (the "TENANTS") advising them (x) of the change in ownership of the Property and (y) directing them to pay Rent (as defined in Section 4.4(v)) to Purchaser or as Purchaser may direct; and (xi) original or copies of payroll records and other files necessary for the administration of employees or contracts which Purchaser is required to assume pursuant to this Agreement. 4.3 At the Closing, Purchaser will deliver to Seller the following: (i) the Purchase Price as provided in Section 2.1 hereof (as adjusted pursuant to Section 4.4 hereof); (ii) all other instruments and documents, including a statement of adjustments, provided for herein; Purchaser shall also make any other payments required by this Agreement to be paid by Purchaser; (iii) [Intentionally Omitted] (iv) an instrument or counterparts of the Assignment described in Section 4.2(iii) hereof, duly executed and acknowledged by Purchaser, in which Purchaser assumes and agrees to observe and perform all of the obligations of Seller under the Leases which arise on and after the Closing Date and to indemnify Seller in respect thereof; and (v) an instrument or counterparts of the instrument described in Section 4.2(ix) hereof, duly executed and acknowledged by Purchaser, in which Purchaser assumes and agrees to observe and perform all of the obligations of Seller under the Service Contracts which arise on and after the Closing Date and to indemnify Seller in respect thereof. 4.4 Subject to Section 4.6 hereof, the following items shall be shared between the parties as of 11:59 p.m. of the day immediately preceding the Closing Date (the "ADJUSTMENT DATE"): (i) real estate taxes on the basis of the fiscal year for which assessed; (ii) water, sewer and vault charges on the basis of the fiscal year for which assessed, on the basis of current bills and readings obtained by Seller from the appropriate governmental entity or a reputable water meter reading company within fifteen (15) days prior to the Adjustment Date. Notwithstanding the foregoing, Seller shall not be responsible for paying and no adjustment will be made between Purchaser and Seller for water, sewer and vault charges which are the direct responsibility of any of the Tenants; (iii) fees or charges for all transferable licenses and permits, if any; (iv) fuel on hand based on Seller's cost therefor (including sales tax, if any), based on a written statement of the computation and measurements thereof by Seller's regular suppliers based on a reading performed no earlier than fifteen (15) days prior to the Closing Date; (v) rents as and when collected. The word "RENTS" as used in this Section 4.4(v) shall be deemed to include fixed monthly rents as well as any additional rents or other income payable by Tenants. The term "COSTS OF COLLECTION" shall mean and include reasonable attorneys' fees and other costs incurred by Purchaser or Seller in collecting any Rents, but shall not include the regular fees payable to any managing agent of the Property, the payroll cost of either party's employees or any other internal costs or overhead of either party.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Krupp Co Limited Partnership Ii)
The Closing; Closing Deliveries. 4.1 (a) The closing of the transaction provided for in this Agreement transactions contemplated hereby (the "CLOSING"“Closing”) will be held shall take place (i) at a time and place mutually agreed between the parties offices of Xxxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxxxxxx, XX 00000 (or remotely via the electronic exchange of closing deliveries), commencing at 9:00 a.m. Central time, on the first business day date that is three Business Days following the date on which the satisfaction or, if permissible, waiver of the last of the conditions set forth in Article VIII (other than any such conditions that by their terms will not be satisfied until deliveries are made at the Closing, but subject to the satisfaction or, if permissible, waiver of such conditions at the Closing) takes place; provided, however, that if the Marketing Period has not ended at the time of satisfaction or waiver of all of the conditions set forth in Article VIII (other than any such conditions that by their terms will not be satisfied until deliveries are made at the Closing, but subject to the satisfaction or, if permissible, waiver of such conditions at the Closing), the Closing shall occur on the earlier of (A) a date during the Marketing Period specified by Buyer on no less than two (2) Business Days’ notice to the Company and (B) the second (2nd) Business Day after the end of the Marketing Period (subject to in each case to the satisfaction or waiver of all of the conditions set forth in Article VIII) or (ii) on such other date or at such other time or place as the Parties may mutually agree in writing. The date on which the Closing actually occurs is hereinafter referred to as the “Closing Date.” The Closing shall be deemed to have been consummated at 12:01 a.m. Central time on the Closing Date, and all actions required to be taken pursuant hereto at the Closing (including the delivery of all closing deliveries pursuant to Section 2.03(b) and Section 2.03(c)) shall occur and shall be deemed to take place simultaneously.
(b) At the Closing, Sellers shall deliver, or cause to be delivered, to Buyer:
(i) the Assignment Agreement, duly executed by each Seller or Sellers’ Representative on any Seller’s behalf;
(ii) the Escrow Agreement, duly executed by Sellers’ Representative;
(iii) evidence of the resignation or removal, effective as of the Closing, of each of the individuals serving as a director, manager or officer (in his or her capacity as such) of the Company, the General Partner or each Blocker Company set forth on SCHEDULE C as of immediately prior to the Closing, and evidence of the resignation or removal, effective as of the Closing, of those other directors, managers and officers (in his or her capacity as such) of each Acquired Company as of immediately prior to the Closing as requested by Buyer in writing at least five Business Days prior to the Closing;
(iv) a valid IRS Form W-9 or applicable IRS Form W-8 from each Seller, provided that if such form is not provided with respect to any Seller, the delivery requirements of this Section 2.03(b)(iii) shall be deemed satisfied and Buyer’s sole recourse is to withhold any applicable Taxes from the consideration payable to such Seller;
(v) a certificate from the Company, dated of the Closing Date in form attached hereto as Exhibit C-1, which satisfies the requirements set forth in Treasury Regulations Section 1.1445-11T(d)(2), attesting that either (A) fifty percent or more of the value of the gross assets of the Company does not consist of U.S. real property interests or (B) ninety percent or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;
(vi) a certificate from each Blocker Company, dated as of the Closing Date in form attached hereto as Exhibit C-2, which satisfies the requirements set forth in Treasury Regulations Section 1.1445-2(c)(3) and 1.897-2(h), attesting that such Blocker Company is not, and has not been during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code;
(vii) a certificate duly executed by each Seller (where not an individual, by an authorized officer) or an authorized officer of Sellers’ Representative on any Seller’s behalf, dated as of the Closing Date, confirming the satisfaction of the conditions set forth in Section 3.1 8.02(a), Section 8.02(b) and Section 8.02(d);
(viii) invoices or, with respect to Company Transaction Expenses payable to employees of the "SCHEDULED CLOSING DATE"); PROVIDED Group Companies through payroll, other reasonable supporting information reflecting amounts included in Company Transaction Expenses reflected in the Estimated Adjustment Amount set forth on the Estimated Closing Statement;
(ix) a counterpart to the Stockholders’ Agreement, duly executed by each Blackstone Seller;
(x) a Rollover Interest Assignment Agreement, duly executed by each Rollover Holder or the General Partner on behalf of any Rollover Holder that Purchaser shall have does not execute a one-time right Rollover Interest Assignment Agreement at least one Business Day prior to schedule the Closing on a business day occurring Date; and
(xi) all other documents required to be delivered by Sellers to Buyer at any time within 60 days following the Scheduled Closing Date. The date on which the Closing occurs is referred pursuant to as the "CLOSING DATEthis Agreement."
4.2 (c) At the Closing, Seller without limiting Buyer’s obligation to pay (i) the Closing Cash Payment Amount, (ii) the Adjustment Escrow Amount, (iii) the Indemnity Escrow Amount, (iv) the Indemnified Tax Escrow Amount, (v) the Representative Expense Amount, and (vi) the Payoff Amounts set forth in one or more Payoff Letters provided to Buyer in accordance with Section 2.02 in each case, in accordance with Section 2.01(b), Buyer shall deliver the following deliver, or cause to Purchaserbe delivered:
(i) to Sellers’ Representative, a general warranty deed counterpart to the Assignment Agreement, duly executed and acknowledged by Seller, in proper statutory form for recording, so as to convey to Purchaser fee simple title to the Property, subject to and in accordance with the provisions of this Agreement (the "DEED")Buyer;
(ii) [Intentionally Omitted]to Sellers’ Representative, a counterpart to the Escrow Agreement, duly executed by Buyer;
(iii) an instrument (to Sellers’ Representative, a counterpart to the "ASSIGNMENT") Stockholders’ Agreement, duly executed by Buyer Parent and acknowledged by Seller, in which Seller assigns to Purchaser all of Seller's right, title and interest each other Person who will be a party thereto as landlord in, to and under the leases or tenancies of all tenants and other occupants of the Property Closing (the "LEASES") and the security deposits with interest to the extent provided in such Leases (which security deposits and interest amounts shall be paid over to Purchaser at the Closing or credited against other amounts payable by Seller to Purchaser at the Closingthan any Seller);
(iv) to Sellers’ Representative, a list certificate duly executed by Buyer and Buyer Parent, dated as of the current rents now being collected on each Closing Date, confirming the satisfaction of the apartment units conditions set forth in the Property which includes: apartment number, unit type, tenant name, commencement Section 8.03(a) and termination dates, lease rent and security deposits (including parking deposits and last month's rent, if anySection 8.03(b);
(v) an instrument duly executed to each Rollover Holder (or, if applicable, a custodian designated by such Rollover Holder), the Buyer Parent Common Shares to be delivered to such Rollover Holder pursuant to such Rollover Holder’s Rollover Agreement, in book entry form and acknowledged by Seller in which Seller assigns to Purchaser all the name of Seller's right, title and interest such Rollover Holder (or its nominee in and accordance with such Rollover Holder’s written delivery instructions provided to the utility deposits, if any, described in Section 4.5 hereofCompany at least three (3) Business Days before the Closing Date);
(vi) all other instruments and documentsto Sellers’ Representative, including an executed binder agreement with respect to the R&W Insurance Policy in a statement of adjustments, provided for hereinform reasonably satisfactory to the Seller Representative; Seller shall also make any other payments required by this Agreement to be paid by Seller;and
(vii) an affidavit executed to Sellers’ Representative, all other documents required to be delivered by or on behalf of Seller providing Seller's taxpayer identification number and a statement that Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Internal Revenue Code, as amended and the regulations promulgated thereunder;
(viii) the keys Buyer to the Property;
(ix) an instrument duly executed and acknowledged by Seller in which Seller assigns to Purchaser all of Seller's right, title and interest under any service or management contracts effecting the Property (the "SERVICE CONTRACTS") in effect as Sellers at the Closing Date, which instrument shall contain no warranties, express or implied;
(x) a letter to all tenants or other occupants of the Property (the "TENANTS") advising them (x) of the change in ownership of the Property and (y) directing them to pay Rent (as defined in Section 4.4(v)) to Purchaser or as Purchaser may direct; and
(xi) original or copies of payroll records and other files necessary for the administration of employees or contracts which Purchaser is required to assume pursuant to this Agreement.
4.3 At the Closing, Purchaser will deliver to Seller the following:
(i) the Purchase Price as provided in Section 2.1 hereof (as adjusted pursuant to Section 4.4 hereof);
(ii) all other instruments and documents, including a statement of adjustments, provided for herein; Purchaser shall also make any other payments required by this Agreement to be paid by Purchaser;
(iii) [Intentionally Omitted]
(iv) an instrument or counterparts of the Assignment described in Section 4.2(iii) hereof, duly executed and acknowledged by Purchaser, in which Purchaser assumes and agrees to observe and perform all of the obligations of Seller under the Leases which arise on and after the Closing Date and to indemnify Seller in respect thereof; and
(v) an instrument or counterparts of the instrument described in Section 4.2(ix) hereof, duly executed and acknowledged by Purchaser, in which Purchaser assumes and agrees to observe and perform all of the obligations of Seller under the Service Contracts which arise on and after the Closing Date and to indemnify Seller in respect thereof.
4.4 Subject to Section 4.6 hereof, the following items shall be shared between the parties as of 11:59 p.m. of the day immediately preceding the Closing Date (the "ADJUSTMENT DATE"):
(i) real estate taxes on the basis of the fiscal year for which assessed;
(ii) water, sewer and vault charges on the basis of the fiscal year for which assessed, on the basis of current bills and readings obtained by Seller from the appropriate governmental entity or a reputable water meter reading company within fifteen (15) days prior to the Adjustment Date. Notwithstanding the foregoing, Seller shall not be responsible for paying and no adjustment will be made between Purchaser and Seller for water, sewer and vault charges which are the direct responsibility of any of the Tenants;
(iii) fees or charges for all transferable licenses and permits, if any;
(iv) fuel on hand based on Seller's cost therefor (including sales tax, if any), based on a written statement of the computation and measurements thereof by Seller's regular suppliers based on a reading performed no earlier than fifteen (15) days prior to the Closing Date;
(v) rents as and when collected. The word "RENTS" as used in this Section 4.4(v) shall be deemed to include fixed monthly rents as well as any additional rents or other income payable by Tenants. The term "COSTS OF COLLECTION" shall mean and include reasonable attorneys' fees and other costs incurred by Purchaser or Seller in collecting any Rents, but shall not include the regular fees payable to any managing agent of the Property, the payroll cost of either party's employees or any other internal costs or overhead of either party.
Appears in 1 contract
The Closing; Closing Deliveries. 4.1 The 5.1 Subject to the terms and conditions hereof, the closing of the transaction transactions provided for in this Agreement herein (the "CLOSINGClosing") will be held at a time and place mutually agreed between the location determined by the parties and on the first business day following the satisfaction of the conditions set forth in Section 3.1 Mall Release Date (the "SCHEDULED CLOSING DATEClosing Date"); PROVIDED that Purchaser shall have a one-time right to schedule the Closing on a business day occurring at any time within 60 days following the Scheduled Closing Date. The date on which the Closing occurs is referred to as the "CLOSING DATE."
4.2 5.2 At the Closing, Seller shall deliver or cause to be delivered the following to Purchaser:
(ia) If the Subdivision shall have been implemented on or before the Closing Date a general limited warranty deed (or such other form of deed as shall be required in Xxxxx County, Nevada in order for Purchaser, GMAC and GSMC to obtain the title insurance they require) in proper statutory form for recording, duly executed and acknowledged by Seller, in proper statutory form for recording, so as to convey to Purchaser fee simple title to the PropertyMall Parcels, subject only to GCCLLC Permitted Encumbrances (as defined in the FADAA) in the form attached hereto and in accordance with the provisions of this Agreement made a part hereof as Exhibit G (the "DEEDDeed");.
(iib) [Intentionally Omitted]
In the alternative to (iiia) an instrument above, if the Subdivision shall not have been implemented on or before the Closing Date, assignment and assumption of lease (collectively, the "ASSIGNMENTMall I Airspace/Ground Lease Assignment") in proper statutory form for recording, duly executed and acknowledged by Seller, in which Seller assigns so as to assign and transfer to Purchaser all of Seller's right, title and interest as landlord in, (subject only to and under the leases or tenancies of all tenants and other occupants of the Property (the "LEASES"GCCLLC Permitted Encumbrances) and the security deposits with interest to the extent provided in such Leases (which security deposits and interest amounts shall be paid over to Purchaser at the Closing or credited against other amounts payable by Seller to Purchaser at the Closing);
(iv) a list of the current rents now being collected on each of the apartment units in the Property which includes: apartment number, unit type, tenant name, commencement and termination dates, lease rent and security deposits (including parking deposits and last month's rent, if any);
(v) an instrument duly executed and acknowledged by Seller in which Seller assigns to Purchaser all of Seller's right, title and interest in and to the Mall I Airspace/Ground Lease, in the form attached hereto and made a part hereof as Exhibit H and a limited warranty deed (or such other form of deed as shall be required in Xxxxx County, Nevada in order for Purchaser, GMAC and GSMC to obtain the title insurance they require) in proper statutory form for recording, duly executed and acknowledged by Seller, so as to convey to Purchaser fee simple title to all of the improvements and fixtures located or constructed on the Mall Parcel, subject only to GCCLLC Permitted Encumbrances (as defined in the FADAA) in the form attached hereto and made a part hereof as Exhibit G-1 (the "Deed For Improvements").
(c) Regardless of whether the Subdivision shall have been implemented on or before the Closing Date, an Assignment and Assumption of Master Lease for Additional Billboard Space (the "Assignment of Master Lease for Additional Billboard Space") in proper statutory form for recording, duly executed and acknowledged by Seller, so as to assign and transfer to Purchaser (subject only to GCCLLC Permitted Encumbrances) all of Seller's right, title and interest in and to the Seller's interests under the Master Lease for Additional Billboard Space, in the form attached hereto and made a part hereof as Exhibit I.
(d) Notwithstanding anything to the contrary in this Section 5.2.1, the parties agree that if at Closing Purchaser shall take title to Seller's Interest subject to the liens in favor of the lender(s) under the GMAC Loan to secure the GMAC Loan, in accordance with Section 3.2, (i) said liens shall be, and shall be deemed to be, a GCCLLC Permitted Encumbrance, and (ii) Seller shall deliver to Purchaser and GMAC at Closing an assumption of mortgage agreement (the "Mortgage Assumption") in proper statutory form for recording, duly executed and acknowledged by Seller, (x) if the Subdivision has occurred, whereby Purchaser assumes all of Seller's obligations under the GMAC Mortgage, in the form attached hereto and made a part hereof as Exhibit J1, and (y) whereby Purchaser assumes all of Seller's obligations under the GMAC Leasehold Mortgage, in the form attached hereto and made a part hereof as Exhibit J2, if the Subdivision has not occurred.
5.2.2 a xxxx of sale duly executed by Seller evidencing the Sale of the Mall Personal Property, substantially in the form attached hereto as Exhibit C;
5.2.3 Cash in the following amounts:
(a) the Mall Reserves Amount; the cash to be delivered pursuant to this Section 5.2.3(a) shall be transferred by assignment of all of Seller's right, title and interest in an account pledged to GMAC pursuant to the GMAC Loan Agreement;
(b) the Mall Retainage/Punchlist Amount. The cash to be delivered pursuant to this Section 5.2.3(b) shall be delivered by Seller causing the same to be deposited into an escrow account to be maintained at the Disbursement Agent for the benefit of the Purchaser. In connection with the delivery of such cash, Seller further shall execute and deliver (and shall cause the Disbursement Agent to execute and deliver) to Purchaser a Mall Retainage/Punchlist Escrow Agreement substantially in the form attached hereto as Exhibit D (the "Mall Retainage/Punchlist Escrow Agreement");
5.2.4 an assignment duly executed by Seller of all of its right, title and interest in and to all Mall Intangible Property Rights, to the extent assignable, and all utility deposits then held for Seller's benefit with respect to the Assets, substantially in the form attached hereto as Exhibit E (with the exhibits thereto accurately completed to reflect the pertinent facts as of the Closing Date);
5.2.5 an assignment duly executed and acknowledged by Seller, pursuant to which Seller shall assign to Purchaser all of Seller's right, title and interest as landlord, in, to and under all Mall Tenant Leases (including, without limitation, the Billboard Operating Lease), and the balance of any security and similar deposits, if any, described made by tenants pursuant to the terms of the Mall Tenant Leases as of the Closing Date, all as more particularly set forth in Section 4.5 hereofthe form of Assignment and Assumption of Leases attached hereto as Exhibit F (with the exhibits thereto accurately completed to reflect the pertinent facts as of the Closing Date). At Closing, Seller shall deliver therewith a check to Purchaser's order in the aggregate amount of any cash security deposits maintained by Seller for the benefit of tenants under Mall Tenant Leases, including accrued interest, if any, which would be due to tenants if such deposits were withdrawn on the Closing Date or, at the option of Seller, Seller will allow Purchaser a credit against the Purchase Price in the amount of such deposits. If any security deposits shall be maintained in the form of a letter of credit, Seller shall deliver all such letters of credit at Closing and shall assign to Purchaser all of its right, title and interest as landlord thereto, and/or shall cooperate with Purchaser to cause the reissuance or endorsement of each such letter of credit for the benefit of Purchaser on or following the Closing;
(vi) 5.2.6 executed originals of all other instruments Mall Tenant Leases or copies thereof to the extent Seller is not in possession of executed originals, and documentsall related files and records, including a statement operating expense records and operating expense statements, together with supporting documentation with respect to the Mall Parcels, to the extent in the possession of adjustments, provided for herein; Seller shall also make any other payments required by this Agreement or its property manager;
5.2.7 estoppel certificates in form and content reasonably acceptable to be paid Purchaser executed by Seller, with respect to each of the Mall Tenant Leases, to the extent received;
(vii) an affidavit 5.2.8 affidavits executed by or on behalf of Seller and VCR providing Seller's and VCR's taxpayer identification number numbers and a statement that neither Seller nor VCR is not a foreign person within the meaning of Section 1445(f)(3) of the Internal Revenue Code, as amended and the regulations promulgated thereunderamended;
(viii) 5.2.9 the keys to the Propertyimprovements within the Mall Parcels to the extent in the possession of Seller or its property manager;
(ix) an instrument duly 5.2.10 a letter, addressed to each tenant under a Mall Tenant Lease and executed and acknowledged by Seller in which Seller assigns to Purchaser all of Seller's right, title and interest under any service or management contracts effecting the Property (the "SERVICE CONTRACTS") in effect as at the Closing Date, which instrument shall contain no warranties, express or implied;
(x) a letter to all tenants or other occupants advising of the Property sale of the Premises and (the "TENANTS") advising them (xas applicable) of the change transfer of security and similar deposits, if any, to Purchaser, directing it to pay rent and/or deliver notices to a person and at an address designated by Purchaser and containing such other information as may be required in ownership accordance with applicable law;
5.2.11 to the extent in the possession of Seller or Seller's property manager and not already delivered, (a) all original licenses and permits, authorizations and approvals which are currently in force pertaining to the Improved Property, (b) the contracts and other documentation pertaining to or evidencing the Mall Intangible Property Rights, (c) plans and drawings for the Mall Improvements and all improvements erected on the Improved Property and (yd) directing them all guarantees and warranties which are currently in force in connection with any work or services performed or equipment installed in and to pay Rent the Mall Improvements;
5.2.12 any and all operating expense statements, calculations of escalations, tenant leasing files and records, marketing materials, architectural and engineering drawings, utilities layout plans, topographical plans and the like in Seller's or its managing agent's possession or control which are used in the operation, construction, improvement, alteration or repair of the Mall Parcels;
5.2.13 such reasonable and customary affidavits and other instruments and documents, limited to knowledge as appropriate, as Purchaser's or GSMC's title insurer shall reasonably require (or, if the GMAC Loan is assumed in whole or in part by Purchaser, as defined the title insurer or the then holder of the GMAC Loan reasonably may require) in Section 4.4(v)) order to Purchaser issue owner's and mortgagee policies of title insurance in respect of the Mall Parcels and/or to delete the standard pre-printed exceptions for mechanics' liens attributable to labor, services or as Purchaser may directmaterials furnished to the Mall Parcels and parties in possession other than the tenants under the Mall Tenant Leases; and
(xi) original or copies of payroll records 5.2.14 all other instruments and other files necessary for documents reasonably requested by Purchaser to effectuate this Agreement and the administration of employees or contracts which Purchaser is required transaction contemplated hereby, each in form and substance reasonably satisfactory to assume pursuant to this AgreementSeller.
4.3 5.3 At the Closing, Purchaser will deliver to Seller the following:
(i) 5.3.1 the Purchase Price Cash Portion as provided in Section 2.1 hereof (as adjusted pursuant to Section 4.4 hereof)3.2;
(ii5.3.2 if the Subdivision shall not have been implemented on or before the Closing Date, a counterpart of the Lease Assignment described in Section 5.2.1(b) hereof in which Purchaser assumes and agrees to observe and perform all of the obligations of Seller as tenant under the Mall I Airspace/Ground Lease which arise from and after the Closing Date;
5.3.3 regardless of whether the Subdivision shall have been implemented on or before the Closing Date, a counterpart of the Assignment of Master Lease for Additional Billboard Space described in Section 5.2.1(c) hereof in which Purchaser assumes and agrees to observe and perform all of the obligations of Seller as tenant under the Master Lease for Additional Billboard Space which arise from and after the Closing Date;
5.3.4 if at Closing Purchaser shall take title to Mall Real Property Interests subject to the liens of the GMAC Loan, as contemplated in Section 3.2(ii), the applicable counterpart of the Assumption Agreement described in Section 5.2.1(d) hereof in which Purchaser assumes and agrees to be bound by and to observe and perform all of the obligations of Seller under the GMAC Loan which arise from and after the Closing Date.
5.3.5 a counterpart of the Mall Retainage/Punchlist Escrow Agreement duly executed by Purchaser and duly consented to by any lender receiving a security interest therein;
5.3.6 a counterpart of the assignment described in subsection 5.2.4, duly executed and acknowledged by Purchaser, in which Purchaser assumes and agrees to be bound by and to observe and perform all of the obligations of Seller under the contracts included within the Mall Intangible Property Rights which arise from and after the Closing Date;
5.3.7 a counterpart of the assignment described in subsection 5.2.5 hereof, duly executed and acknowledged by Purchaser, in which Purchaser assumes and agrees to be bound by and to observe and perform all of the obligations of Seller under the Mall Tenant Leases which arise from and after the Closing Date; and
5.3.8 all other instruments and documentsdocuments reasonably requested by Seller to effectuate this Agreement and the transaction contemplated hereby, including a statement of adjustments, provided for herein; each in form and substance reasonably satisfactory to Purchaser. Purchaser shall also make any other payments required by this Agreement to be paid by Purchaser;
(iii) [Intentionally Omitted]
(iv) an instrument or counterparts of the Assignment described in Section 4.2(iii) hereof, duly executed and acknowledged by Purchaser, in which Purchaser assumes and agrees to observe and perform all of the obligations of Seller under the Leases which arise on and after the Closing Date and to indemnify Seller in respect thereof; and
(v) an instrument or counterparts of the instrument described in Section 4.2(ix) hereof, duly executed and acknowledged by Purchaser, in which Purchaser assumes and agrees to observe and perform all of the obligations of Seller under the Service Contracts which arise on and after the Closing Date and to indemnify Seller in respect thereof.
4.4 Subject to Section 4.6 hereof, the following items shall be shared between the parties as of 11:59 p.m. of the day immediately preceding the Closing Date (the "ADJUSTMENT DATE"):
(i) real estate taxes on the basis of the fiscal year for which assessed;
(ii) water, sewer and vault charges on the basis of the fiscal year for which assessed, on the basis of current bills and readings obtained by Seller from the appropriate governmental entity or a reputable water meter reading company within fifteen (15) days prior to the Adjustment Date. Notwithstanding the foregoing, Seller shall not be responsible for paying and no adjustment will be made between Purchaser and Seller for water, sewer and vault charges which are the direct responsibility of any of the Tenants;
(iii) fees or charges for all transferable licenses and permits, if any;
(iv) fuel on hand based on Seller's cost therefor (including sales tax, if any), based on a written statement of the computation and measurements thereof by Seller's regular suppliers based on a reading performed no earlier than fifteen (15) days prior to the Closing Date;
(v) rents as and when collected. The word "RENTS" as used in this Section 4.4(v) shall be deemed to include fixed monthly rents as well as any additional rents or other income payable by Tenants. The term "COSTS OF COLLECTION" shall mean and include reasonable attorneys' fees and other costs incurred by Purchaser or Seller in collecting any Rents, but shall not include the regular fees payable to any managing agent of the Property, the payroll cost of either party's employees or any other internal costs or overhead of either party.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Grand Canal Shops Mall Construction LLC)
The Closing; Closing Deliveries. 4.1 The (a) Upon the terms and subject to the satisfaction or waiver of the conditions contained in this Agreement (other than those conditions which are to be satisfied on the Closing Date), the closing of the transaction provided for in transactions contemplated by this Agreement (the "CLOSINGClosing") will shall be held at a time and the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, located at Four Times Square, New York, New York (or such other place mutually agreed between as the parties may mutually agree) at 10:00 a.m. local time on August 27, 2004 or (subject to Section 2.5 hereof), on such other date (subject to Section 2.5 hereof) as the first Company shall determine and notify the Buyer in writing at least three business day following the satisfaction of the conditions set forth days prior thereto in Section 3.1 (the "SCHEDULED CLOSING DATE"); PROVIDED that Purchaser shall have a one-time right to schedule the Closing on a business day occurring at any time within 60 days following the Scheduled Closing Datewriting. The date on which the Closing actually occurs is hereinafter referred to as the "CLOSING DATEClosing Date."
4.2 At the Closing, Seller shall deliver the following to Purchaser:
(ib) a general warranty deed duly executed and acknowledged by Seller, in proper statutory form for recording, so as to convey to Purchaser fee simple title to the Property, subject to and in accordance with the provisions of this Agreement (the "DEED");
(ii) [Intentionally Omitted]
(iii) an instrument (the "ASSIGNMENT") duly executed and acknowledged by Seller, in which Seller assigns to Purchaser all of Seller's right, title and interest as landlord in, to and under the leases or tenancies of all tenants and other occupants of the Property (the "LEASES") and the security deposits with interest to the extent provided in such Leases (which security deposits and interest amounts shall be paid over to Purchaser at the Closing or credited against other amounts payable by Seller to Purchaser at the Closing);
(iv) a list of the current rents now being collected on each of the apartment units in the Property which includes: apartment number, unit type, tenant name, commencement and termination dates, lease rent and security deposits (including parking deposits and last month's rent, if any);
(v) an instrument duly executed and acknowledged by Seller in which Seller assigns to Purchaser all of Seller's right, title and interest in and to the utility deposits, if any, described in Section 4.5 hereof;
(vi) all other instruments and documents, including a statement of adjustments, provided for herein; Seller shall also make any other payments required by this Agreement to be paid by Seller;
(vii) an affidavit executed by or on behalf of Seller providing Seller's taxpayer identification number and a statement that Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Internal Revenue Code, as amended and the regulations promulgated thereunder;
(viii) the keys to the Property;
(ix) an instrument duly executed and acknowledged by Seller in which Seller assigns to Purchaser all of Seller's right, title and interest under any service or management contracts effecting the Property (the "SERVICE CONTRACTS") in effect as at On the Closing Date, which instrument shall contain no warranties, express or implied;
(x) a letter subject to all tenants or other occupants the terms and conditions of the Property (the "TENANTS") advising them (x) of the change in ownership of the Property and (y) directing them to pay Rent (as defined in Section 4.4(v)) to Purchaser or as Purchaser may direct; and
(xi) original or copies of payroll records and other files necessary for the administration of employees or contracts which Purchaser is required to assume pursuant to this Agreement.
4.3 At , each Seller or Option Seller, as applicable, shall deliver or cause to be delivered (except as delivered prior to the Closing, Purchaser will deliver to Seller Closing Date) the following:
(i) to the Purchase Price Paying Agent, Individual Stock Certificate(s) representing the number of shares of Class A Common Stock or Series B Preference Stock, as provided the case may be, set forth opposite such Seller's name on Exhibit A hereto duly endorsed (or accompanied by a duly executed stock transfer power and with all required stock transfer tax stamps attached) and in form for transfer (including a duly executed letter of transmittal and such other documents as the Paying Agent, the Sellers' Representative and Buyer may reasonably mutually agree to require) to Buyer;
(ii) to the Paying Agent, with respect to the Option Sellers, all Option Acknowledgments evidencing the cancellation of the Cashed Out Options held by such Option Seller (the number of Cashed Out Options shall be set forth opposite such Option Seller's name on Exhibit B hereto under the heading "Cashed Out Options," which exhibit may be updated prior to Closing by the Sellers' Representative in accordance with the provisions of Section 6.7(c), together with such other documents as the Paying Agent, the Sellers' Representative and Buyer may reasonably mutually agree to require);
(iii) to the Buyer, the certificate referred to in Section 2.1 hereof 7.3(g);
(as adjusted iv) to Buyer Holdings, the Related Agreements, duly executed by such Seller (to the extent it is contemplated to be a party thereto) to the extent not completed, executed and delivered prior to the Closing Date; and
(v) to the Buyer, all other documents required to be delivered by (or on behalf) of such Seller, the Company or OpCo on or prior to the Closing Date pursuant to this Agreement.
(c) On the Closing Date, subject to the terms and conditions of this Agreement, Buyer shall deliver or cause to be delivered (except as delivered prior to the Closing Date) the following:
(i) to the Paying Agent, by wire transfer of immediately available funds, an amount of cash sufficient for the Paying Agent to make the payments to the Sellers contemplated by Section 4.4 hereof2.3(e)(iii);
(ii) all other instruments and documentsto the Paying Agent, including a statement by wire transfer of adjustmentsimmediately available funds, provided an amount of cash sufficient for herein; Purchaser shall also the Paying Agent to make the payments to the Option Sellers contemplated by Section 2.3(e)(iv), it being understood that Buyer or OpCo will retain an amount of cash sufficient for OpCo as the surviving company of the Company Merger to withhold any other payments required by this Agreement amounts in respect of Options necessary pursuant to be paid by PurchaserSection 6.7(c)(iii) for Tax purposes;
(iii) [Intentionally Omitted]
(iv) an instrument or counterparts if the Discount Notes Consent Solicitation does not result in a Successful Consent Solicitation, to the Trustee under the Discount Notes Indenture, on behalf of the Assignment described Company, by wire transfer of immediately available funds to such account or accounts as such Trustee specifies in Section 4.2(iii) hereof, duly executed and acknowledged by Purchaser, in which Purchaser assumes and agrees to observe and perform all of the obligations of Seller under the Leases which arise on and after the Closing Date and to indemnify Seller in respect thereof; and
(v) an instrument or counterparts of the instrument described in Section 4.2(ix) hereof, duly executed and acknowledged by Purchaser, in which Purchaser assumes and agrees to observe and perform all of the obligations of Seller under the Service Contracts which arise on and after the Closing Date and to indemnify Seller in respect thereof.
4.4 Subject to Section 4.6 hereof, the following items shall be shared between the parties as of 11:59 p.m. of the day immediately preceding the Closing Date (the "ADJUSTMENT DATE"):
(i) real estate taxes on the basis of the fiscal year for which assessed;
(ii) water, sewer and vault charges on the basis of the fiscal year for which assessed, on the basis of current bills and readings obtained by Seller from the appropriate governmental entity or a reputable water meter reading company within fifteen (15) days writing not fewer than two Business Days prior to the Adjustment Closing Date. Notwithstanding , the foregoing, Seller shall not be responsible for paying and no adjustment will be made between Purchaser and Seller for water, sewer and vault charges which are the direct responsibility of any of the Tenants;
Discount Notes Redemption Amount (iii) fees or charges for all transferable licenses and permits, if anypursuant to Section 6.10(b)(i));
(iv) fuel if the Floating Rate Notes Consent Solicitation does not result in a Successful Consent Solicitation, to the Trustee under the Floating Rate Notes Indenture, on hand based on Seller's cost therefor behalf of OpCo, by wire transfer of immediately available funds to such account or accounts as such Trustee specifies in writing not fewer than two Business Days prior to the Closing Date, the Floating Rate Notes Redemption Amount (including sales taxpursuant to Section 6.10(b)(ii));
(v) if the Subordinated Notes Consent Solicitation resulted in a Successful Consent Solicitation, the Subordinated Notes Offer Amount by wire transfer of immediately available funds to such account or accounts as the Depositary specifies in writing not fewer than two Business Days prior to the Closing Date (pursuant to Section 6.10(a)(iv));
(vi) if anythe Discount Notes Consent Solicitation resulted in a Successful Consent Solicitation, the Discount Notes Offer Amount by wire transfer of immediately available funds to such account or accounts as the Depositary specifies in writing not fewer than two Business Days prior to the Closing Date (pursuant to Section 6.10(a)(v));
(vii) if the Floating Rate Notes Consent Solicitation resulted in a Successful Consent Solicitation, based on a written statement the Floating Rate Notes Offer Amount by wire transfer of immediately available funds to such account or accounts as the Depositary specifies in writing not fewer than two Business Days prior to the Closing Date (pursuant to Section 6.10(a)(vi));
(viii) to the Sellers' Representative, the certificate of the computation Buyer's Chief Executive Officer referred to in Section 7.2(c);
(ix) the Related Agreements, duly executed by Buyer Holdings (to the extent it is contemplated to be a party thereto) to the extent not executed and measurements thereof by Seller's regular suppliers based on a reading performed no earlier than fifteen (15) days delivered prior to the Closing Date;
(x) to the Company or OpCo, by wire transfer of immediately available funds, an amount of cash sufficient for the Company or OpCo to make the payments to the holders of Cancelled Options pursuant to Section 6.7(c)(i); and
(xi) all other documents required to be delivered by Buyer or Buyer Holdings (or on its behalf) on or prior to the Closing Date pursuant to this Agreement.
(d) On the Closing Date, subject to the terms and conditions of this Agreement (except as delivered prior to the Closing Date), Sellers shall cause the Company to deliver, or cause the Company to cause OpCo to deliver (except that Sellers shall use their reasonable best efforts to cause the Company to deliver, and to cause the Company to cause OpCo to deliver the items set forth in clause (iv) below), as applicable:
(i) if the Discount Notes Consent Solicitation does not result in a Successful Consent Solicitation, to the holders of the Discount Notes, the Discount Notes Redemption Notice (pursuant to Section 6.10(c)(i));
(ii) if the Floating Rate Notes Consent Solicitation does not result in a Successful Consent Solicitation, to the holders of the Floating Rate Notes, the Floating Rate Notes Redemption Notice (pursuant to Section 6.10(c)(ii));
(iii) a certificate of good standing for each of the Company and OpCo issued by the Secretary of State of the State of Delaware as of a date reasonably close to the Closing Date;
(iv) written resignations of each director of the Company and OpCo listed on Section 2.3(d)(iv) to the Company Disclosure Letter, effective as of the Closing Date;
(v) rents the FIRPTA certificate pursuant to Section 7.3(k);
(vi) the certificate of the Company's Chief Financial Officer referred to in Section 7.3(n);
(vii) the certificate of the Company's Chief Executive Officer referred to in Section 7.3(d);
(viii) the Related Agreements, duly executed by the Company or OpCo (to the extent either is contemplated to be a party thereto) to the extent not executed and delivered prior to the Closing Date; and
(ix) all other documents required to be delivered by Sellers, the Company or OpCo on or prior to the Closing Date pursuant to this Agreement.
(e) On the Closing Date, subject to the terms and conditions of this Agreement (including the delivery requirements of Section 2.6(b)), the Sellers' Representative and Buyer shall each cause the Paying Agent to deliver (except as delivered prior to the Closing Date) the following:
(i) to Buyer, with respect to the Sellers, Individual Stock Certificates representing the number of shares of Class A Common Stock or Series B Preference Stock, as the case may be, set forth opposite each Seller's name on Exhibit A hereto duly endorsed (or accompanied by a duly executed stock transfer power and when collected. The word "RENTS" as used with all required stock transfer tax stamps attached) and in this Section 4.4(vform for transfer to Buyer;
(ii) to Buyer, with respect to the Option Sellers, all Option Acknowledgments evidencing the cancellation of the Cashed Out Options held by each Option Seller (the number of Cashed Out Options shall be deemed set forth opposite such Option Seller's name on Exhibit B hereto under the heading "Cashed Out Options," which exhibit may be updated prior to include fixed monthly rents Closing by the Sellers' Representative in accordance with the provisions of Section 6.7(c));
(iii) to each Seller, by wire transfer of immediately available funds to such account or accounts as well as any additional rents or other income payable by Tenants. The term "COSTS OF COLLECTION" shall mean and include reasonable attorneys' fees and other costs incurred by Purchaser or such Seller specifies in collecting any Rentswriting not fewer than two Business Days prior to the Closing Date, but shall not include the regular fees payable an amount equal to such Seller's Individual Seller Consideration; and
(iv) to each Option Seller (subject to any managing agent withholding provisions pursuant to Section 6.7(c)(iii)), by wire transfer of immediately available funds to such account or accounts as such Option Seller specifies in writing not fewer than two Business Days prior to the Closing Date, an amount equal to such Option Seller's Individual Option Seller Consideration.
(f) At least three (3) Business Days prior to the Closing Date, the Sellers' Representative shall deliver, or cause the Company's Chief Financial Officer to prepare and deliver, to Buyer a certificate setting forth a good faith estimate of (i) the aggregate amount, as of 11:59 p.m. on the Business Day immediately prior to the Closing Date, of the Propertyitems set forth on Schedule 2.3(f) hereto, as finally determined in accordance with Section 2.5 (the payroll cost "Additional Deduction Amount"), (ii) the Cash Amount, (iii) the Closing Indebtedness Amount, and (iv) the amount of either party's employees or any other internal costs or overhead of either partyWorking Capital.
Appears in 1 contract
