Actions and Operations Pending Closing. Seller agrees that from the date hereof through the Closing Date: (a) Seller shall continue to operate and maintain the Property substantially in accordance with Seller’s and Property Manager’s present standards and current business practices, provided that during said period, without the prior written consent of Purchaser which may be given or withheld in Purchaser’s sole and absolute discretion (except as indicated below), Seller shall not do, suffer or permit, or agree to do, any of the following: (i) Enter into any transaction with respect to or affecting the Property out of the ordinary course of business; (ii) Sell, mortgage, pledge, encumber, grant any interest in or otherwise transfer or dispose of the Property or any part thereof or any interest therein, in any form or manner whatsoever; (iii) Remove from the Real Property any of the fixtures thereon or any of the Personalty; provided, however, that damaged or obsolete fixtures and Personalty may be replaced or discarded, as appropriate; or (iv) Enter into or take any other action with respect to the Leases in violation of Section 10.2 of this Agreement. (b) Seller shall maintain the Property free from waste and neglect and in its current condition and repair and shall keep and perform or cause to be performed all obligations of the landlord under the Leases, all obligations of Seller under the Contracts and all Licenses, all obligations of Seller under the Legal Requirements, and all obligations arising under the Existing Debt, to and including the Closing Date or termination of this Agreement. Seller shall operate the Property in compliance with all Legal Requirements between the date of this Agreement and the Closing Date. Seller will in all events comply with any notice received from any insurance company which has issued a policy with respect to any of the Parcels, or by any board of fire underwriters (or other body exercising similar functions) and complete all repairs, alterations or other work required in order to comply with such notice and to correct any such defect prior to Closing, at Seller’s cost and expense, if such notice is received by Seller prior to Closing hereunder. (c) Seller shall, effective as of Closing, terminate the Existing Management Agreements and any other Contracts Purchaser may by written notice request Seller to terminate, other than contracts that cannot be terminated upon thirty (30) days written notice including, but not limited to copier and postage leases and cable and linen contracts identified on Exhibit G (collectively, the “Rejected Contracts”), and Seller shall pay at or prior to the Closing all amounts which are or may come due under the Existing Management Agreements and such Rejected Contracts. Purchaser’s failure to request Seller terminate any Contract shall be deemed Purchaser’s election to direct Seller to assign such Contract to Purchaser as of the Closing Date. Seller shall pay all termination fees, charges and other costs resulting from the termination of the Existing Management Agreements and any Contracts prior to Closing or incident to the sale of the Property to Purchaser. Seller shall indemnify and hold Purchaser harmless from and of any obligation, claim, demand, loss, liability, cause of action, cost and expense (including reasonable attorneys’ fees), with respect to the Existing Management Agreements and such other Contracts, including, without limitation, from Seller’s failure to pay such termination and other like fees and costs. With respect to any guaranties or warranties included in the Contracts to be assigned to Purchaser, Seller at Seller’s expense shall obtain any consents or approvals required for transfer of the guaranties or warranties to Purchaser (such as consents commonly necessary to assign roof warranties) if such guaranties or warranties are assignable and, if such guaranties and warranties are not assignable, Seller shall take commercially reasonable steps to (i) assure that the rights of Seller thereunder shall be preserved for the benefit of Purchaser, and (ii) facilitate receipt of any payments received after Closing thereunder, which payment Seller shall promptly deliver to Purchaser. The provisions of this Paragraph 10.1(c) shall survive the Closing. (d) Without the prior written consent of Purchaser, Seller shall not enter into any new Contracts, or cancel, modify or renew any existing Contracts (other than the Rejected Contracts), other than Contracts which by their terms are terminable upon not more than thirty (30) days’ notice, by the then owner of the Property, without penalty or the payment of any termination fee or other similar payment and are otherwise in accordance with Seller’s current business practices. Such consent (i) shall not be unreasonably withheld if such request is made prior to the expiration of the Contingency Period or (ii) may be withheld in Purchaser’s sole and absolute discretion if such request is made after the expiration of the Contingency Period. Seller shall comply with all applicable terms, provisions and obligations of Seller contained in the Contracts and any other contractual arrangements referred to in this Agreement. Notwithstanding the foregoing, in no event shall Seller enter into, cancel, modify or renew any Contract in connection with the Memory Care Expansion which is not terminable upon not more than thirty (30) days’ notice without the prior written consent of Purchaser, which consent (A) shall not be unreasonably withheld, conditioned or delayed prior to the expiration of the Contingency Period and (B) may be given or withheld in Purchaser’s sole and absolute discretion from and after the expiration of the Contingency Period. (e) Seller shall pay as they become due any and all taxes and assessments levied against the Property, all utility charges incurred with respect to the Property, all debt service payments on loans secured by the Property and all other expenses incurred in the operation of the Property pursuant to the standards required by this Article 10. (f) Seller shall notify Purchaser promptly if Seller becomes aware of any fact, circumstance, transaction or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in Section 4.1 incomplete, false or misleading in any material respect. (g) Seller shall maintain in full force and effect insurance coverage comparable to which it now carries with respect to the Property. (h) Seller shall use commercially reasonable efforts to lease vacant units on Seller’s current lease form and at market rental rates as reasonably determined by Seller, subject to Section 10.2 below. (i) Seller shall cause Property Manager to maintain normal levels of inventory and supplies on hand for the business (including medical supplies, food, beverages, office and kitchen supplies), consistent with past practices and as necessary to comply with applicable laws and regulations. (j) Seller shall cause Property Manager not to take any actions, or omit to take any actions, that constitute a breach of this Agreement, were the acts or omission to have been taken by Seller. (k) Seller shall use reasonable best efforts to maintain in effect until Closing its existing management agreements with Property Manager for the assisted living, memory care and independent living facilities located on the Real Property (the “Existing Management Agreements”). Seller shall cause the Existing Management Agreements to be terminated concurrent with the Closing without any expense to or obligation of Purchaser with respect thereto. The provisions of this Paragraph 10.1(k) shall survive the Closing. (l) Within thirty (30) days after the end of each calendar month from the date hereof until the Closing, Seller shall deliver to Purchaser a current Rent Roll and financial reports with respect to the Property’s operations for such month, which report shall indicate, without limitation, gross rental income, gross income from other (identified) sources, expenses of each kind and amount, rent delinquencies and vacancies; provided, however, that with respect to the calendar month immediately preceding the month in which the then scheduled Closing Date is scheduled to occur, all such materials shall be provided within twenty (20) days after the end of such calendar month. As of the date set forth thereon, (i) each such Rent Roll will list all then-existing Leases related to the Property and (ii) the information set forth on each such Rent Roll with respect to rent, deposits, delinquencies, credits and other income and charges will be true and correct. (m) Seller shall diligently continue to pursue the upgrades to the units at the independent living facility located on the Courtyard Plaza Parcel as disclosed to Purchaser and shall use commercially reasonable efforts to complete such upgrades prior to the Closing Date. (n) Seller shall diligently continue to pursue and progress the Memory Care Expansion. Seller shall not modify any of the Licenses, plans or specifications related to the Memory Care Expansion without Purchaser’s prior written consent in Purchaser, which consent (i) shall not be unreasonably withheld, conditioned or delayed prior to the expiration of the Contingency Period, and (ii) may be given or withheld in Purchaser’s sole and absolute discretion from and after the expiration of the Contingency Period. In the event that, prior to the Closing, Seller receives any notice or other material communication from any governmental authority relating to the Memory Care Expansion, or from any other Person objecting to or otherwise complaining about the Memory Care Expansion, Seller shall promptly deliver a copy of such notice or other communication to Purchaser, and the parties shall work together in good faith to formulate a response to such notice or other communication. Seller shall pay and be responsible for all costs incurred or accrued by Seller and/or Property Manager (including hard and soft costs) in connection with the Memory Care Expansion prior to the Closing Date. Notwithstanding the foregoing, Purchaser shall provide Seller a credit at Closing in the amount of all fees previously paid by Seller to any governmental authority for the issuance of the Permits related to the Memory Care Expansion. (o) Seller agrees to (and shall cause the Employer to) use Seller’s or the Employer’s, as applicable, commercially reasonable best efforts to retain the Employees until the Closing Date in order to ensure the continued, uninterrupted operation of the Property up through the Closing. Notwithstanding the foregoing, Seller, Property Manager and Employer, in accordance with the terms of the Management Agreement, may: (a) terminate the employment of any individual with an annual salary of less than $100,000 or make other commercially reasonable employment decisions, with respect to employees with an annual salary of less than $100,000, in the ordinary course of business consistent with existing employment practices and procedures; or (b) terminate the employment of any individual for cause, incapacity, disability or death in accordance with the existing employment practices and procedures. (p) Seller shall, and shall cause its Property Manager to cooperate with Purchaser and its respective Affiliates in conducting customary due diligence with respect to the Property and the transition of the operation of the business conducted thereof in connection with the transactions contemplated by this Agreement, which cooperation shall include, but shall not be limited to, facilitating communications with nonresidential Tenants regarding the transition of such business, responding timely to due diligence requests, cooperating with lenders, cooperating to obtain the Licenses, and any such other cooperation as may be necessary to consummate the transfer of the business conducted by Seller. In connection therewith, Seller and its Affiliates shall provide such documents as are reasonably requested by Purchaser and its respective Affiliates, accountants, counsel, consultants and other advisors that are within Seller’s, Property Manager’s and/or their respective Affiliates’ possession or control, including, without limitation, copies of all Licenses and the documents listed on Exhibit C hereto. In connection with such due diligence, communications or interviews with any lender of Seller or its Property Manager may only be conducted with the prior consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. Any such interviews shall be conducted during normal business hours and may be conducted by telephone or in person at such places as reasonably designated by Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic Student & Senior Housing Trust, Inc.)
Actions and Operations Pending Closing. Seller agrees that from the date hereof through at all times prior to the Closing Date, subject to the terms of the Existing Management Agreement and to conditions beyond Seller’s reasonable control:
(a) Seller shall The Hotel will continue to operate be operated and maintain the Property maintained substantially in accordance with Seller’s and Property Manager’s present standards and current business practices, provided that during said period, without the prior written consent of Purchaser which may be given or withheld in Purchaser’s sole and absolute discretion (except as indicated below), Seller shall not do, suffer or permit, or agree to do, any of the following:
(i) Enter into any transaction with respect to or affecting the Property out of the ordinary course of business;
(ii) Sell, mortgage, pledge, encumber, grant any interest in or otherwise transfer or dispose of the Property or any part thereof or any interest therein, in any form or manner whatsoever;
(iii) Remove from the Real Property any of the fixtures thereon or any of the Personalty; provided, however, that damaged or obsolete fixtures and Personalty may be replaced or discarded, as appropriate; or
(iv) Enter into or take any other action with respect to the Leases in violation of Section 10.2 of this AgreementPresent Standards.
(b) Seller shall maintain will not enter into any new Space Lease, or consent to any cancellation, modification or renewal of any Space Lease, without, in each instance, the Property free from waste and neglect and in its current condition and repair and shall keep and perform or cause to be performed all obligations prior written consent of the landlord under the Leases, all obligations of Seller under the Contracts and all Licenses, all obligations of Seller under the Legal Requirements, and all obligations arising under the Existing Debt, to and including the Closing Date or termination of this Agreement. Seller shall operate the Property in compliance with all Legal Requirements between the date of this Agreement and the Closing DatePurchaser. Seller will not enter into any new Hotel Contract (as opposed to the renewal of an existing Hotel Contract) which is not terminable on not more than 30 days prior notice without penalty, without, in all events comply with any notice received from any insurance company which has issued a policy with respect to any each instance, the prior written consent of the Parcels, or by any board of fire underwriters (or other body exercising similar functions) and complete all repairs, alterations or other work required in order to comply with such notice and to correct any such defect prior to Closing, at Seller’s cost and expense, if such notice is received by Seller prior to Closing hereunderPurchaser.
(c) Seller shall, effective as of Closing, terminate shall have the Existing Management Agreements and any other Contracts Purchaser may by written notice request Seller to terminate, other than contracts that cannot be terminated upon thirty (30) days written notice including, but not limited to copier and postage leases and cable and linen contracts identified on Exhibit G (collectively, the “Rejected Contracts”), and Seller shall pay at or prior to the Closing all amounts which are or may come due under the Existing Management Agreements and such Rejected Contracts. Purchaser’s failure to request Seller terminate any Contract shall be deemed Purchaser’s election to direct Seller to assign such Contract to Purchaser as of the Closing Date. Seller shall pay all termination fees, charges and other costs resulting from the termination of the Existing Management Agreements and any Contracts prior to Closing or incident to the sale of the Property to Purchaser. Seller shall indemnify and hold Purchaser harmless from and of any obligation, claim, demand, loss, liability, cause of action, cost and expense (including reasonable attorneys’ fees), with respect to the Existing Management Agreements and such other Contracts, includingright, without limitation, from Seller’s failure notice to pay such termination and other like fees and costs. With respect to any guaranties or warranties included in the Contracts to be assigned to Purchaser, Seller at Seller’s expense shall obtain any consents or approvals required for transfer of the guaranties or warranties to Purchaser (such as consents commonly necessary to assign roof warranties) if such guaranties or warranties are assignable and, if such guaranties and warranties are not assignable, Seller shall take commercially reasonable steps to (i) assure that the rights of Seller thereunder shall be preserved for the benefit consent of Purchaser, and (ii) facilitate receipt to make Bookings in the ordinary course of any payments received after Closing thereunderbusiness, which payment Seller shall promptly deliver to Purchaser. The provisions of this Paragraph 10.1(c) shall survive at no less than the ClosingHotel’s standard rates, including customary discounted rates.
(d) Without Seller shall use commercially reasonable efforts to preserve in force all existing Permits and to cause all those expiring on or before the Closing Date to be renewed prior written consent of Purchaserto the Closing Date. If any such Permit shall be suspended or revoked, Seller shall promptly notify Purchaser and shall take all commercially reasonable measures necessary to cause the reinstatement of such Permit.
(e) Seller will maintain in effect until the Closing all policies of casualty and liability insurance, or similar policies of insurance, with the same limits of coverage which it now carries with respect to the Hotel.
(f) Seller will not enter into or consent to any new Contracts, union contracts or cancel, modify or renew any existing Contracts (other than the Rejected Contracts), other than Contracts which by their terms are terminable upon not more than thirty (30) days’ notice, by the then owner of the Property, without penalty or the payment of any termination fee or other similar payment and are otherwise in accordance with Seller’s current business practices. Such consent (i) shall not be unreasonably withheld if such request is made prior to the expiration of the Contingency Period or (ii) may be withheld in Purchaser’s sole and absolute discretion if such request is made after the expiration of the Contingency Period. Seller shall comply with all applicable terms, provisions and obligations of Seller contained in the Contracts and any other contractual arrangements referred to in this Agreement. Notwithstanding the foregoing, in no event shall Seller enter into, cancel, modify or renew any Contract in connection with the Memory Care Expansion which is not terminable upon not more than thirty (30) days’ notice collective bargaining agreements without the prior written consent of Purchaser, which consent (A) shall not to be unreasonably withheld, conditioned or delayed prior to the expiration of the Contingency Period and (B) may be given or withheld in Purchaser’s sole and absolute discretion from and after the expiration of the Contingency Period.
(e) Seller shall pay as they become due any and all taxes and assessments levied against the Property, all utility charges incurred with respect to the Property, all debt service payments on loans secured by the Property and all other expenses incurred in the operation of the Property pursuant to the standards required by this Article 10.
(f) Seller shall notify Purchaser promptly if Seller becomes aware of any fact, circumstance, transaction or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in Section 4.1 incomplete, false or misleading in any material respectdelayed.
(g) Seller will not remove any Fixtures and Tangible Personal Property from the Property (other than in the ordinary course of business in which case adequate replacements shall maintain in full force and effect insurance coverage comparable to which it now carries with respect to the Propertyhave been made).
(h) Seller shall use commercially reasonable efforts to lease vacant units on Seller’s current lease form and at market rental rates as reasonably determined by Seller, subject to Section 10.2 below.
will not (i) Seller shall cause Property Manager create or voluntarily allow any lien or similar encumbrance to maintain normal levels of inventory and supplies on hand for be placed against the business (including medical supplies, food, beverages, office and kitchen supplies), consistent with past practices and as necessary to comply with applicable laws and regulations.
(j) Seller shall cause Property Manager not to take any actionsProperty, or omit (ii) grant or enter into any easement, restrictive covenant or similar agreement affecting title to take any actions, that constitute a breach of this Agreement, were the acts or omission to have been taken by Seller.
(k) Seller shall use reasonable best efforts to maintain in effect until Closing its existing management agreements with Property Manager for the assisted living, memory care and independent living facilities located on the Real Property (the “Existing Management Agreements”). Seller shall cause the Existing Management Agreements to be terminated concurrent with the Closing without any expense to or obligation of Purchaser with respect thereto. The provisions of this Paragraph 10.1(k) shall survive the Closing.
(l) Within thirty (30) days after the end of each calendar month from the date hereof until the Closing, Seller shall deliver to Purchaser a current Rent Roll and financial reports with respect to the Property’s operations for such month, which report shall indicate, without limitation, gross rental income, gross income from other (identified) sources, expenses of each kind and amount, rent delinquencies and vacancies; provided, however, that with respect to the calendar month immediately preceding the month in which the then scheduled Closing Date is scheduled to occur, all such materials shall be provided within twenty (20) days after the end of such calendar month. As of the date set forth thereon, (i) each such Rent Roll will list all then-existing Leases related to the Property and (ii) the information set forth on each such Rent Roll with respect to rent, deposits, delinquencies, credits and other income and charges will be true and correct.
(m) Seller shall diligently continue to pursue the upgrades to the units at the independent living facility located on the Courtyard Plaza Parcel as disclosed to Purchaser and shall use commercially reasonable efforts to complete such upgrades prior to the Closing Date.
(n) Seller shall diligently continue to pursue and progress the Memory Care Expansion. Seller shall not modify any of the Licenses, plans or specifications related to the Memory Care Expansion without Purchaser’s prior written consent in Purchaser, which consent (i) shall not be unreasonably withheld, conditioned or delayed prior to the expiration of the Contingency Period, and (ii) may be given or withheld in Purchaser’s its sole and absolute discretion from and after the expiration of the Contingency Period. In the event that, prior to the Closing, Seller receives any notice or other material communication from any governmental authority relating to the Memory Care Expansion, or from any other Person objecting to or otherwise complaining about the Memory Care Expansion, Seller shall promptly deliver a copy of such notice or other communication to Purchaser, and the parties shall work together in but good faith to formulate a response to such notice or other communication. Seller shall pay and be responsible for all costs incurred or accrued by Seller and/or Property Manager (including hard and soft costs) in connection with the Memory Care Expansion prior to the Closing Date. Notwithstanding the foregoing, Purchaser shall provide Seller a credit at Closing in the amount of all fees previously paid by Seller to any governmental authority for the issuance of the Permits related to the Memory Care Expansiondiscretion.
(o) Seller agrees to (and shall cause the Employer to) use Seller’s or the Employer’s, as applicable, commercially reasonable best efforts to retain the Employees until the Closing Date in order to ensure the continued, uninterrupted operation of the Property up through the Closing. Notwithstanding the foregoing, Seller, Property Manager and Employer, in accordance with the terms of the Management Agreement, may: (a) terminate the employment of any individual with an annual salary of less than $100,000 or make other commercially reasonable employment decisions, with respect to employees with an annual salary of less than $100,000, in the ordinary course of business consistent with existing employment practices and procedures; or (b) terminate the employment of any individual for cause, incapacity, disability or death in accordance with the existing employment practices and procedures.
(p) Seller shall, and shall cause its Property Manager to cooperate with Purchaser and its respective Affiliates in conducting customary due diligence with respect to the Property and the transition of the operation of the business conducted thereof in connection with the transactions contemplated by this Agreement, which cooperation shall include, but shall not be limited to, facilitating communications with nonresidential Tenants regarding the transition of such business, responding timely to due diligence requests, cooperating with lenders, cooperating to obtain the Licenses, and any such other cooperation as may be necessary to consummate the transfer of the business conducted by Seller. In connection therewith, Seller and its Affiliates shall provide such documents as are reasonably requested by Purchaser and its respective Affiliates, accountants, counsel, consultants and other advisors that are within Seller’s, Property Manager’s and/or their respective Affiliates’ possession or control, including, without limitation, copies of all Licenses and the documents listed on Exhibit C hereto. In connection with such due diligence, communications or interviews with any lender of Seller or its Property Manager may only be conducted with the prior consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. Any such interviews shall be conducted during normal business hours and may be conducted by telephone or in person at such places as reasonably designated by Seller.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Hotel (Strategic Hotel Capital Inc)
Actions and Operations Pending Closing. Seller agrees that from the date hereof through at all times prior to the Closing Date:
(a) Seller shall Subject to conditions beyond Seller’s reasonable control, the Hotel will continue to operate be operated and maintain the Property substantially maintained in accordance with Seller’s and Property Manager’s present standards and current business practices, provided that during said period, without the prior written consent of Purchaser which may be given or withheld in Purchaser’s sole and absolute discretion (except as indicated below), Seller shall not do, suffer or permit, or agree to do, any of the following:
(i) Enter into any transaction with respect to or affecting the Property out of the ordinary course of business;
(ii) Sell, mortgage, pledge, encumber, grant any interest in or otherwise transfer or dispose of the Property or any part thereof or any interest therein, in any form or manner whatsoever;
(iii) Remove from the Real Property any of the fixtures thereon or any of the Personalty; provided, however, that damaged or obsolete fixtures and Personalty may be replaced or discarded, as appropriate; or
(iv) Enter into or take any other action business substantially consistent with respect to the Leases in violation of Section 10.2 of this AgreementPresent Standards.
(b) Seller shall maintain After the Property free from waste and neglect and in its current condition and repair and shall keep and perform or cause to be performed all obligations end of the landlord under the Leases, all obligations of Seller under the Contracts and all Licenses, all obligations of Seller under the Legal Requirements, and all obligations arising under the Existing Debt, to and including the Closing Date or termination of this Agreement. Seller shall operate the Property in compliance with all Legal Requirements between the date of this Agreement and the Closing Date. Seller will in all events comply with any notice received from any insurance company which has issued a policy with respect to any of the Parcels, or by any board of fire underwriters (or other body exercising similar functions) and complete all repairs, alterations or other work required in order to comply with such notice and to correct any such defect prior to Closing, at Seller’s cost and expense, if such notice is received by Seller prior to Closing hereunder.
(c) Seller shall, effective as of Closing, terminate the Existing Management Agreements and any other Contracts Purchaser may by written notice request Seller to terminate, other than contracts that cannot be terminated upon thirty (30) days written notice including, but not limited to copier and postage leases and cable and linen contracts identified on Exhibit G (collectively, the “Rejected Contracts”), and Seller shall pay at or prior to the Closing all amounts which are or may come due under the Existing Management Agreements and such Rejected Contracts. Purchaser’s failure to request Seller terminate any Contract shall be deemed Purchaser’s election to direct Seller to assign such Contract to Purchaser as of the Closing Date. Seller shall pay all termination fees, charges and other costs resulting from the termination of the Existing Management Agreements and any Contracts prior to Closing or incident to the sale of the Property to Purchaser. Seller shall indemnify and hold Purchaser harmless from and of any obligation, claim, demand, loss, liability, cause of action, cost and expense (including reasonable attorneys’ fees), with respect to the Existing Management Agreements and such other Contracts, including, without limitation, from Seller’s failure to pay such termination and other like fees and costs. With respect to any guaranties or warranties included in the Contracts to be assigned to Purchaser, Seller at Seller’s expense shall obtain any consents or approvals required for transfer of the guaranties or warranties to Purchaser (such as consents commonly necessary to assign roof warranties) if such guaranties or warranties are assignable and, if such guaranties and warranties are not assignable, Seller shall take commercially reasonable steps to (i) assure that the rights of Seller thereunder shall be preserved for the benefit of Purchaser, and (ii) facilitate receipt of any payments received after Closing thereunder, which payment Seller shall promptly deliver to Purchaser. The provisions of this Paragraph 10.1(c) shall survive the Closing.
(d) Without the prior written consent of PurchaserInspection Period, Seller shall not enter into any new ContractsHotel Contract or Space Lease, or cancel, modify or renew any existing Contracts (other than the Rejected Contracts), other than Contracts which by their terms are terminable Hotel Contract or Space Lease that is not cancelable upon not more than thirty (30) days’ notice, by the then owner of the Property, days notice and without penalty or the payment of any penalty or termination fee or other similar payment and are otherwise in accordance with Seller’s current business practices. Such consent (i) shall not be unreasonably withheld if such request is made prior to the expiration of the Contingency Period or (ii) may be withheld in Purchaser’s sole and absolute discretion if such request is made after the expiration of the Contingency Period. Seller shall comply with all applicable termsfee, provisions and obligations of Seller contained in the Contracts and any other contractual arrangements referred to in this Agreement. Notwithstanding the foregoing, in no event shall Seller enter into, cancel, modify or renew any Contract in connection with the Memory Care Expansion which is not terminable upon not more than thirty (30) days’ notice without the prior written consent of Purchaser, which consent (A) shall not be unreasonably withheld, conditioned or delayed prior to the expiration of the Contingency Period and (B) may be given or withheld in Purchaser’s sole and absolute discretion from and after the expiration of the Contingency Period.
(e) Seller shall pay as they become due any and all taxes and assessments levied against the Property, all utility charges incurred with respect to the Property, all debt service payments on loans secured by the Property and all other expenses incurred in the operation of the Property pursuant to the standards required by this Article 10.
(f) Seller shall notify Purchaser promptly if Seller becomes aware of any fact, circumstance, transaction or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in Section 4.1 incomplete, false or misleading in any material respect.
(g) Seller shall maintain in full force and effect insurance coverage comparable to which it now carries with respect to the Property.
(h) Seller shall use commercially reasonable efforts to lease vacant units on Seller’s current lease form and at market rental rates as reasonably determined by Seller, subject to Section 10.2 below.
(i) Seller shall cause Property Manager to maintain normal levels of inventory and supplies on hand for the business (including medical supplies, food, beverages, office and kitchen supplies), consistent with past practices and as necessary to comply with applicable laws and regulations.
(j) Seller shall cause Property Manager not to take any actions, or omit to take any actions, that constitute a breach of this Agreement, were the acts or omission to have been taken by Seller.
(k) Seller shall use reasonable best efforts to maintain in effect until Closing its existing management agreements with Property Manager for the assisted living, memory care and independent living facilities located on the Real Property (the “Existing Management Agreements”). Seller shall cause the Existing Management Agreements to be terminated concurrent with the Closing without any expense to or obligation of Purchaser with respect thereto. The provisions of this Paragraph 10.1(k) shall survive the Closing.
(l) Within thirty (30) days after the end of each calendar month from the date hereof until the Closing, Seller shall deliver to Purchaser a current Rent Roll and financial reports with respect to the Property’s operations for such month, which report shall indicate, without limitation, gross rental income, gross income from other (identified) sources, expenses of each kind and amount, rent delinquencies and vacancies; provided, however, that with respect to the calendar month immediately preceding the month in which the then scheduled Closing Date is scheduled to occur, all such materials shall be provided within twenty (20) days after the end of such calendar month. As of the date set forth thereon, (i) each such Rent Roll will list all then-existing Leases related to the Property and (ii) the information set forth on each such Rent Roll with respect to rent, deposits, delinquencies, credits and other income and charges will be true and correct.
(m) Seller shall diligently continue to pursue the upgrades to the units at the independent living facility located on the Courtyard Plaza Parcel as disclosed to Purchaser and shall use commercially reasonable efforts to complete such upgrades prior to the Closing Date.
(n) Seller shall diligently continue to pursue and progress the Memory Care Expansion. Seller shall not modify any of the Licenses, plans or specifications related to the Memory Care Expansion without Purchaser’s prior written consent in Purchaser, which consent (i) shall not be unreasonably withheld, conditioned or delayed prior to the expiration of the Contingency Period, and (ii) may be given or withheld in Purchaser’s sole and absolute discretion from and after the expiration of the Contingency Period. In the event that, prior to the Closing, Seller receives any notice or other material communication from any governmental authority relating to the Memory Care Expansion, or from any other Person objecting to or otherwise complaining about the Memory Care Expansion, Seller shall promptly deliver a copy of such notice or other communication to Purchaser, and the parties shall work together in good faith to formulate a response to such notice or other communication. Seller shall pay and be responsible for all costs incurred or accrued by Seller and/or Property Manager (including hard and soft costs) in connection with the Memory Care Expansion prior to the Closing Date. Notwithstanding the foregoing, Purchaser shall provide Seller a credit at Closing in the amount of all fees previously paid by Seller to any governmental authority for the issuance of the Permits related to the Memory Care Expansion.
(o) Seller agrees to (and shall cause the Employer to) use Seller’s or the Employer’s, as applicable, commercially reasonable best efforts to retain the Employees until the Closing Date in order to ensure the continued, uninterrupted operation of the Property up through the Closing. Notwithstanding the foregoing, Seller, Property Manager and Employer, in accordance with the terms of the Management Agreement, may: (a) terminate the employment of any individual with an annual salary of less than $100,000 or make other commercially reasonable employment decisions, with respect to employees with an annual salary of less than $100,000, in the ordinary course of business consistent with existing employment practices and procedures; or (b) terminate the employment of any individual for cause, incapacity, disability or death in accordance with the existing employment practices and procedures.
(p) Seller shall, and shall cause its Property Manager to cooperate with Purchaser and its respective Affiliates in conducting customary due diligence with respect to the Property and the transition of the operation of the business conducted thereof in connection with the transactions contemplated by this Agreement, which cooperation shall include, but shall not be limited to, facilitating communications with nonresidential Tenants regarding the transition of such business, responding timely to due diligence requests, cooperating with lenders, cooperating to obtain the Licenses, and any such other cooperation as may be necessary to consummate the transfer of the business conducted by Seller. In connection therewith, Seller and its Affiliates shall provide such documents as are reasonably requested by Purchaser and its respective Affiliates, accountants, counsel, consultants and other advisors that are within Seller’s, Property Manager’s and/or their respective Affiliates’ possession or control, including, without limitation, copies of all Licenses and the documents listed on Exhibit C hereto. In connection with such due diligence, communications or interviews with any lender of Seller or its Property Manager may only be conducted with the prior consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. Any If Purchaser fails to respond to a request for consent within five (5) Business Days after receipt of such interviews request, such consent shall be conducted during normal business hours deemed given.
(c) Seller shall have the right, without notice to or consent of Purchaser, to make Bookings in the ordinary course of business, at no less than the Hotel’s standard rates, including customary discounted rates.
(d) Seller shall use commercially reasonable efforts to preserve in force all existing Permits and may to cause all those expiring on or before the Closing Date to be conducted renewed prior to the Closing Date. If any such Permit shall be suspended or revoked, Seller shall promptly notify Purchaser and shall take commercially reasonable measures to cause the reinstatement of such Permit. Seller shall use commercially reasonable efforts (at no cost or expense to Seller, other than any de minimis cost or expense or any cost or expense which Purchaser agrees in writing to reimburse) to cooperate with Purchaser to cause the Permits to be transferred at Closing or new permits to be issued to Purchaser at Closing.
(e) Seller will maintain in effect all policies of casualty and liability insurance, or similar policies of insurance, with the same limits of coverage which it now carries with respect to the Hotel.
(f) Seller shall not remove any Fixtures and Tangible Personal Property or Operating Equipment located, installed or used in the Hotel as of the date hereof (except Excluded Assets, if applicable) other than in the ordinary course of business.
(g) Seller shall provide copies of any written notices received by telephone Seller from any governmental or in person at such places as reasonably designated by quasi governmental organizations regarding any violations of Legal Requirements.
(h) Subject to Article IV and prior to the Closing, neither Purchaser nor any of Purchaser’s representatives shall communicate concerning the Property with Manager, any tenant, employee, guest or occupant of the Real Property or any party to any Hotel Contract without the prior written approval of Seller, which approval shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Hotel (Chesapeake Lodging Trust)
Actions and Operations Pending Closing. Seller agrees that from the date hereof through at all times prior to the Closing Date:Date but subject to limitations upon Seller’s rights under the Existing Management Agreements (it being agreed that to the extent any of the covenants set forth in this Section 10.01 are currently controlled by the Manager, Seller shall, to the extent permitted by the Existing Management Agreements, use its commercially reasonable efforts to cause Manager to comply with the covenants set forth in this Section 10.01):
(a) Seller shall continue to operate and maintain the Property substantially in accordance with Seller’s and Property Manager’s present standards and current business practices, provided that during said period, without the prior written consent of Purchaser which may be given or withheld in Purchaser’s sole and absolute discretion (except as indicated below), Seller shall not do, suffer or permit, or agree to do, any of the following:
(i) Enter into any transaction with respect to or affecting the Property out of the ordinary course of business;
(ii) Sell, mortgage, pledge, encumber, grant any interest in or otherwise transfer or dispose of the Property or any part thereof or any interest therein, in any form or manner whatsoever;
(iii) Remove from the Real Property any of the fixtures thereon or any of the Personalty; provided, however, that damaged or obsolete fixtures and Personalty may be replaced or discarded, as appropriate; or
(iv) Enter into or take any other action with respect to the Leases in violation of Section 10.2 of this Agreement.
(b) Seller shall maintain the Property free from waste and neglect and in its current condition and repair and shall keep and perform or cause to be performed all obligations of the landlord under the Leases, all obligations of Seller under the Contracts and all Licenses, all obligations of Seller under the Legal Requirements, and all obligations arising under the Existing Debt, to and including the Closing Date or termination of this Agreement. Seller shall operate the Property in compliance with all Legal Requirements between the date of this Agreement and the Closing Date. Seller will in all events comply with any notice received from any insurance company which has issued a policy with respect to any of the Parcels, or by any board of fire underwriters (or other body exercising similar functions) and complete all repairs, alterations or other work required in order to comply with such notice and to correct any such defect prior to Closing, at Seller’s cost and expense, if such notice is received by Seller prior to Closing hereunder.
(c) Seller shall, effective as of Closing, terminate the Existing Management Agreements and any other Contracts Purchaser may by written notice request Seller to terminate, other than contracts that cannot be terminated upon thirty (30) days written notice including, but not limited to copier and postage leases and cable and linen contracts identified on Exhibit G (collectively, the “Rejected Contracts”), and Seller shall pay at or prior to the Closing all amounts which are or may come due under the Existing Management Agreements and such Rejected Contracts. Purchaser’s failure to request Seller terminate any Contract shall be deemed Purchaser’s election to direct Seller to assign such Contract to Purchaser as of the Closing Date. Seller shall pay all termination fees, charges and other costs resulting from the termination of the Existing Management Agreements and any Contracts prior to Closing or incident to the sale of the Property to Purchaser. Seller shall indemnify and hold Purchaser harmless from and of any obligation, claim, demand, loss, liability, cause of action, cost and expense (including reasonable attorneys’ fees), with respect to the Existing Management Agreements and such other Contracts, including, without limitation, from Seller’s failure to pay such termination and other like fees and costs. With respect to any guaranties or warranties included in the Contracts to be assigned to Purchaser, Seller at Seller’s expense shall obtain any consents or approvals required for transfer of the guaranties or warranties to Purchaser (such as consents commonly necessary to assign roof warranties) if such guaranties or warranties are assignable and, if such guaranties and warranties are not assignable, Seller shall take commercially reasonable steps to (i) assure that the rights of Seller thereunder shall be preserved for the benefit of Purchaser, and (ii) facilitate receipt of any payments received after Closing thereunder, which payment Seller shall promptly deliver to Purchaser. The provisions of this Paragraph 10.1(c) shall survive the Closing.
(d) Without the prior written consent of Purchaser, Seller shall not enter into any new Contracts, or cancel, modify or renew any existing Contracts (other than the Rejected Contracts), other than Contracts which by their terms are terminable upon not more than thirty (30) days’ notice, by the then owner of the Property, without penalty or the payment of any termination fee or other similar payment and are otherwise in accordance with Seller’s current business practices. Such consent (i) shall not be unreasonably withheld if such request is made prior to the expiration of the Contingency Period or (ii) may be withheld in Purchaser’s sole and absolute discretion if such request is made after the expiration of the Contingency Period. Seller shall comply with all applicable terms, provisions and obligations of Seller contained in the Contracts and any other contractual arrangements referred to in this Agreement. Notwithstanding the foregoing, in no event shall Seller enter into, cancel, modify or renew any Contract in connection with the Memory Care Expansion which is not terminable upon not more than thirty (30) days’ notice without the prior written consent of Purchaser, which consent (A) shall not be unreasonably withheld, conditioned or delayed prior to the expiration of the Contingency Period and (B) may be given or withheld in Purchaser’s sole and absolute discretion from and after the expiration of the Contingency Period.
(e) Seller shall pay as they become due any and all taxes and assessments levied against the Property, all utility charges incurred with respect to the Property, all debt service payments on loans secured by the Property and all other expenses incurred in the operation of the Property pursuant to the standards required by this Article 10.
(f) Seller shall notify Purchaser promptly if Seller becomes aware of any fact, circumstance, transaction or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in Section 4.1 incomplete, false or misleading in any material respect.
(g) Seller shall maintain in full force and effect insurance coverage comparable to which it now carries with respect to the Property.
(h) Seller shall use commercially reasonable efforts to lease vacant units on Seller’s current lease form and at market rental rates as reasonably determined by Seller, subject to Section 10.2 below.
(i) Seller shall cause Property Manager to maintain normal levels of inventory and supplies on hand for the business (including medical supplies, food, beverages, office and kitchen supplies), consistent with past practices and as necessary to comply with applicable laws and regulations.
(j) Seller shall cause Property Manager not to take any actions, or omit to take any actions, that constitute a breach of this Agreement, were the acts or omission to have been taken by Seller.
(k) Seller shall use reasonable best efforts to maintain in effect until Closing its existing management agreements with Property Manager for the assisted living, memory care and independent living facilities located on the Real Property (the “Existing Management Agreements”). Seller shall cause the Existing Management Agreements to be terminated concurrent with the Closing without any expense to or obligation of Purchaser with respect thereto. The provisions of this Paragraph 10.1(k) shall survive the Closing.
(l) Within thirty (30) days after the end of each calendar month from the date hereof until the Closing, Seller shall deliver to Purchaser a current Rent Roll and financial reports with respect to the Property’s operations for such month, which report shall indicate, without limitation, gross rental income, gross income from other (identified) sources, expenses of each kind and amount, rent delinquencies and vacancies; provided, however, that with respect to the calendar month immediately preceding the month in which the then scheduled Closing Date is scheduled to occur, all such materials shall be provided within twenty (20) days after the end of such calendar month. As of the date set forth thereon, (i) each such Rent Roll will list all then-existing Leases related to the Property and (ii) the information set forth on each such Rent Roll with respect to rent, deposits, delinquencies, credits and other income and charges will be true and correct.
(m) Seller shall diligently continue to pursue the upgrades to the units at the independent living facility located on the Courtyard Plaza Parcel as disclosed to Purchaser and shall use commercially reasonable efforts to complete such upgrades prior to the Closing Date.
(n) Seller shall diligently continue to pursue and progress the Memory Care Expansion. Seller shall not modify any of the Licenses, plans or specifications related to the Memory Care Expansion without Purchaser’s prior written consent in Purchaser, which consent (i) shall not be unreasonably withheld, conditioned or delayed prior to the expiration of the Contingency Period, and (ii) may be given or withheld in Purchaser’s sole and absolute discretion from and after the expiration of the Contingency Period. In the event that, prior to the Closing, Seller receives any notice or other material communication from any governmental authority relating to the Memory Care Expansion, or from any other Person objecting to or otherwise complaining about the Memory Care Expansion, Seller shall promptly deliver a copy of such notice or other communication to Purchaser, and the parties shall work together in good faith to formulate a response to such notice or other communication. Seller shall pay and be responsible for all costs incurred or accrued by Seller and/or Property Manager (including hard and soft costs) in connection with the Memory Care Expansion prior to the Closing Date. Notwithstanding the foregoing, Purchaser shall provide Seller a credit at Closing in the amount of all fees previously paid by Seller to any governmental authority for the issuance of the Permits related to the Memory Care Expansion.
(o) Seller agrees to (and shall cause the Employer to) use Seller’s or the Employer’s, as applicable, commercially reasonable best efforts to retain the Employees until the Closing Date in order to ensure the continued, uninterrupted operation of the Property up through the Closing. Notwithstanding the foregoing, Seller, Property Manager and Employer, in accordance with the terms of the Management Agreement, may: (a) terminate the employment of any individual with an annual salary of less than $100,000 or make other commercially reasonable employment decisions, with respect to employees with an annual salary of less than $100,000, Hotel in the ordinary course of business consistent in substantially the same manner as currently operated and maintained and shall comply with existing employment practices all approved 2015 budgets, including compliance with ongoing repairs, maintenance plans, capital expenditures and procedures; brand standards. Upon written request from Purchaser from time to time, Seller agrees to provide updates to Purchaser regarding operational results and capital expenditures. Seller shall not (i) sell, pledge, or (b) terminate otherwise transfer, change the employment status of title, remove or dispose of all or any part of any individual Hotel (except for causesuch items of Personal Property as become obsolete or are consumed or disposed of and replaced in the ordinary course of business), incapacitysubject to the provisions of Article XI, disability (ii) enter into any Bookings or death issue any Vouchers with respect to any Hotels, in each case, which are not substantially in accordance with such Seller’s past practices at the existing employment practices Hotels or (iii) engage in any transaction or take any action other than in the ordinary course of business in substantially the same manner as currently engaged in. Seller shall utilize its budgetary approval rights under the Existing Management Agreements to limit any increase in compensation or benefits provided to Employees except in the ordinary course of business in substantially the same manner in which the Hotels have been operated by Manager on behalf of Seller prior to the Effective Date. Seller shall at all times keep “ordinary course levels” of both Operating Equipment and procedures.
(p) Seller shall, Supplies and shall cause its Property Manager to cooperate with Purchaser and its respective Affiliates in conducting customary due diligence with Consumables at each Hotel. With respect to the Property Operating Equipment and the transition Supplies (such as linen and t▇▇▇▇), “ordinary course levels” shall mean at a minimum three full turns of the operation of the business conducted thereof in connection with the transactions contemplated by this Agreementpar levels for each room at each Hotel. With respect to Consumables, which cooperation “ordinary course levels” shall include, but shall not be limited to, facilitating communications with nonresidential Tenants regarding the transition of such business, responding timely to due diligence requests, cooperating with lenders, cooperating to obtain the Licenses, and any such other cooperation as may be necessary to consummate the transfer of the business conducted by Seller. In connection therewith, Seller and its Affiliates shall provide such documents as are reasonably requested by Purchaser and its respective Affiliates, accountants, counsel, consultants and other advisors that are within Seller’s, Property Manager’s and/or their respective Affiliates’ possession or control, including, without limitation, copies of all Licenses and the documents listed on Exhibit C hereto. In connection with such due diligence, communications or interviews with any lender of Seller or its Property Manager may only be conducted with the prior consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. Any such interviews shall be conducted during normal business hours and may be conducted by telephone or in person mean a minimum supply for each room at such places as reasonably designated by Sellereach Hotel plus supplies sufficient for an additional seven (7) days.
Appears in 1 contract
Sources: Agreement for Sale and Purchase (American Realty Capital Hospitality Trust, Inc.)
Actions and Operations Pending Closing. Seller agrees that -------------------------------------- from the date hereof through the Closing Date:
(a) Seller shall Except as may be provided to the contrary herein, the Property will continue to operate be operated and maintain the Property maintained substantially in accordance with the Seller’s and Property Manager’s 's present standards (except to the extent failure to so maintain such Property is due to the tenant's breach of its obligations under the Lease).
(b) the Seller shall perform or cause to be performed all obligations of the landlord under the Lease, all obligations of Seller under the Contracts to which it is a party and current business practicesall licenses and permits, all obligations of Seller under the Legal Requirements applicable to the Property, and all obligations of the mortgagor under the any mortgage affecting the Property, to and including the Closing Date or termination of this Agreement. From the date hereof to the Closing Date or earlier termination of this Agreement, Seller shall operate and manage the Property in the same manner as it has been operated and managed heretofore, provided that during said period, without the prior written consent of Purchaser which may be given or withheld in Purchaser’s sole and absolute discretion (except as indicated below), Seller shall not do, suffer or permit, or agree to do, any of the following:
(i) Enter into any transaction with respect to or affecting the Property out of the ordinary course of business;
(ii) Sell, mortgagelease, pledge, encumber, encumber or grant any interest in or otherwise transfer or dispose of the Property or any part thereof or any interest therein, in any form or manner whatsoever;; or
(iii) Remove from the Real Property any of the fixtures thereon or any of the Personalty; provided, however, that damaged or obsolete fixtures and Personalty may be replaced or discarded, as appropriate; or
(iv) Enter into or take any other action with respect to the Leases in violation of Section 10.2 of this Agreement.
(b) Seller shall maintain the Property free from waste and neglect and in its current condition and repair and shall keep and perform or cause to be performed all obligations of the landlord under the Leases, all obligations of Seller under the Contracts and all Licenses, all obligations of Seller under the Legal Requirements, and all obligations arising under the Existing Debt, to and including the Closing Date or termination of this Agreement. Seller shall operate the Property in compliance with all Legal Requirements between the date of this Agreement and the Closing Date. Seller will in all events comply with any notice received from any insurance company which has issued a policy with respect to any of the Parcels, or by any board of fire underwriters (or other body exercising similar functions) and complete all repairs, alterations or other work required in order to comply with such notice and to correct any such defect prior to Closing, at Seller’s cost and expense, if such notice is received by Seller prior to Closing hereunder.
(c) Seller shall, effective as of Closing, terminate the Existing Management Agreements and any other Contracts Purchaser may by written notice request Seller to terminate, other than contracts that cannot be terminated upon thirty (30) days written notice including, but not limited to copier and postage leases and cable and linen contracts identified on Exhibit G (collectively, the “Rejected Contracts”), and Seller shall pay at or prior to the Closing all amounts which are or may come due under the Existing Management Agreements and such Rejected Contracts. Purchaser’s failure to request Seller terminate any Contract shall be deemed Purchaser’s election to direct Seller to assign such Contract to Purchaser as of the Closing Date. Seller shall pay all termination fees, charges and other costs resulting from the termination of the Existing Management Agreements and any Contracts prior to Closing or incident to the sale of the Property to Purchaser. Seller shall indemnify and hold Purchaser harmless from and of any obligation, claim, demand, loss, liability, cause of action, cost and expense (including reasonable attorneys’ fees), with respect to the Existing Management Agreements and such other Contracts, including, without limitation, from Seller’s failure to pay such termination and other like fees and costs. With respect to any guaranties or warranties included in the Contracts to be assigned to Purchaser, Seller at Seller’s expense shall obtain any consents or approvals required for transfer of the guaranties or warranties to Purchaser (such as consents commonly necessary to assign roof warranties) if such guaranties or warranties are assignable and, if such guaranties and warranties are not assignable, Seller shall take commercially reasonable steps to (i) assure that the rights of Seller thereunder shall be preserved for the benefit of Purchaser, and (ii) facilitate receipt of any payments received after Closing thereunder, which payment Seller shall promptly deliver to Purchaser. The provisions of this Paragraph 10.1(c) shall survive the Closing.
(d) Without the prior written consent of Purchaser, Seller shall will not enter into any new Contractscontracts affecting the Property, or cancel, modify or renew any existing Contracts (other than the Rejected Contracts), other than Contracts which by their terms are terminable upon not more than thirty (30) days’ notice, by the then owner of the Property, without penalty or the payment prior written consent of any termination fee or other similar payment and are otherwise in accordance with Seller’s current business practices. Such Purchaser, which consent (i) shall not be unreasonably withheld if such request is made prior to the expiration of the Contingency Period or (ii) may be withheld in Purchaser’s sole and absolute discretion if such request is made after the expiration of the Contingency Periodwithheld. Seller shall comply with all applicable terms, provisions and obligations of Seller contained in the Contracts and any other contractual arrangements referred to in this Agreement. Notwithstanding the foregoing, in no event shall Seller enter into, cancel, modify or renew any Contract in connection with the Memory Care Expansion which is not terminable upon not more than thirty (30) days’ notice without the prior written consent of Purchaser, which consent (A) shall not be unreasonably withheld, conditioned or delayed prior Agreement applicable to the expiration of the Contingency Period and (B) may be given or withheld in Purchaser’s sole and absolute discretion from and after the expiration of the Contingency PeriodSeller.
(e) Seller shall pay as they become due any and all taxes and assessments levied against the Property, all utility charges incurred with respect to the Property, all debt service payments on loans secured by the Property and all other expenses incurred in the operation of the Property pursuant to the standards required by this Article 10.
(fd) Seller shall notify Purchaser promptly if Seller becomes aware of any fact, circumstance, transaction or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in Section 4.1 incomplete, false or misleading untrue in any material respect.
(ge) Seller shall will maintain in full force effect all policies of casualty and effect insurance liability insurance, or similar policies of insurance, with the same limits of coverage comparable to which it they now carries carry with respect to the Property.
(h) Seller shall use commercially reasonable efforts to lease vacant units on Seller’s current lease form and at market rental rates as reasonably determined by Seller, subject to Section 10.2 below.
(i) Seller shall cause Property Manager to maintain normal levels of inventory and supplies on hand for the business (including medical supplies, food, beverages, office and kitchen supplies), consistent with past practices and as necessary to comply with applicable laws and regulations.
(j) Seller shall cause Property Manager not to take any actions, or omit to take any actions, that constitute a breach of this Agreement, were the acts or omission to have been taken by Seller.
(k) Seller shall use reasonable best efforts to maintain in effect until Closing its existing management agreements with Property Manager for the assisted living, memory care and independent living facilities located on the Real Property (the “Existing Management Agreements”). Seller shall cause the Existing Management Agreements to be terminated concurrent with the Closing without any expense to or obligation of Purchaser with respect thereto. The provisions of this Paragraph 10.1(k) shall survive the Closing.
(l) Within thirty (30) days after the end of each calendar month from the date hereof until the Closing, Seller shall deliver to Purchaser a current Rent Roll and financial reports with respect to the Property’s operations for such month, which report shall indicate, without limitation, gross rental income, gross income from other (identified) sources, expenses of each kind and amount, rent delinquencies and vacancies; provided, however, that with respect to the calendar month immediately preceding the month in which the then scheduled Closing Date is scheduled to occur, all such materials shall be provided within twenty (20) days after the end of such calendar month. As of the date set forth thereon, (i) each such Rent Roll will list all then-existing Leases related to the Property and (ii) the information set forth on each such Rent Roll with respect to rent, deposits, delinquencies, credits and other income and charges will be true and correct.
(m) Seller shall diligently continue to pursue the upgrades to the units at the independent living facility located on the Courtyard Plaza Parcel as disclosed to Purchaser and shall use commercially reasonable efforts to complete such upgrades prior to the Closing Date.
(n) Seller shall diligently continue to pursue and progress the Memory Care Expansion. Seller shall not modify any of the Licenses, plans or specifications related to the Memory Care Expansion without Purchaser’s prior written consent in Purchaser, which consent (i) shall not be unreasonably withheld, conditioned or delayed prior to the expiration of the Contingency Period, and (ii) may be given or withheld in Purchaser’s sole and absolute discretion from and after the expiration of the Contingency Period. In the event that, prior to the Closing, Seller receives any notice or other material communication from any governmental authority relating to the Memory Care Expansion, or from any other Person objecting to or otherwise complaining about the Memory Care Expansion, Seller shall promptly deliver a copy of such notice or other communication to Purchaser, and the parties shall work together in good faith to formulate a response to such notice or other communication. Seller shall pay and be responsible for all costs incurred or accrued by Seller and/or Property Manager (including hard and soft costs) in connection with the Memory Care Expansion prior to the Closing Date. Notwithstanding the foregoing, Purchaser shall provide Seller a credit at Closing in the amount of all fees previously paid by Seller to any governmental authority for the issuance of the Permits related to the Memory Care Expansion.
(o) Seller agrees to (and shall cause the Employer to) use Seller’s or the Employer’s, as applicable, commercially reasonable best efforts to retain the Employees until the Closing Date in order to ensure the continued, uninterrupted operation of the Property up through the Closing. Notwithstanding the foregoing, Seller, Property Manager and Employer, in accordance with the terms of the Management Agreement, may: (a) terminate the employment of any individual with an annual salary of less than $100,000 or make other commercially reasonable employment decisions, with respect to employees with an annual salary of less than $100,000, in the ordinary course of business consistent with existing employment practices and procedures; or (b) terminate the employment of any individual for cause, incapacity, disability or death in accordance with the existing employment practices and procedures.
(p) Seller shall, and shall cause its Property Manager to cooperate with Purchaser and its respective Affiliates in conducting customary due diligence with respect to the Property and the transition of the operation of the business conducted thereof in connection with the transactions contemplated by this Agreement, which cooperation shall include, but shall not be limited to, facilitating communications with nonresidential Tenants regarding the transition of such business, responding timely to due diligence requests, cooperating with lenders, cooperating to obtain the Licenses, and any such other cooperation as may be necessary to consummate the transfer of the business conducted by Seller. In connection therewith, Seller and its Affiliates shall provide such documents as are reasonably requested by Purchaser and its respective Affiliates, accountants, counsel, consultants and other advisors that are within Seller’s, Property Manager’s and/or their respective Affiliates’ possession or control, including, without limitation, copies of all Licenses and the documents listed on Exhibit C hereto. In connection with such due diligence, communications or interviews with any lender of Seller or its Property Manager may only be conducted with the prior consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. Any such interviews shall be conducted during normal business hours and may be conducted by telephone or in person at such places as reasonably designated by Seller.
Appears in 1 contract
Actions and Operations Pending Closing. Seller agrees that from -------------------------------------- the date hereof through the Closing Date:
(a) Seller shall Except as may be provided to the contrary herein, the Property will continue to operate be operated and maintain the Property maintained substantially in accordance with the Seller’s and Property Manager’s 's present standards (except to the extent failure to so maintain such Property is due to the tenant's breach of its obligations under any of the Leases).
(b) the Seller shall perform or cause to be performed all obligations of the landlord under the Leases, all obligations of Seller under the Contracts to which it is a party and current business practicesall licenses and permits, all obligations of Seller under the Legal Requirements applicable to the Property, and all obligations of the mortgagor under the any mortgage affecting the Property, to and including the Closing Date or termination of this Agreement. From the date hereof to the Closing Date or earlier termination of this Agreement, Seller shall operate and manage the Property in the same manner as it has been operated and managed heretofore, provided that during said period, without the prior written consent of Purchaser which may be given or withheld in Purchaser’s sole and absolute discretion (except as indicated below), Seller shall not do, suffer or permit, or agree to do, any of the following:
(i) Enter into any transaction with respect to or affecting the Property out of the ordinary course of business;
(ii) Sell, mortgagelease, pledge, encumber, encumber or grant any interest in or otherwise transfer or dispose of the Property or any part thereof or any interest therein, in any form or manner whatsoever;; or
(iii) Remove from the Real Property any of the fixtures thereon or any of the Personalty; provided, however, that damaged or obsolete fixtures and Personalty may be replaced or discarded, as appropriate; or
(iv) Enter into or take any other action with respect to the Leases in violation of Section 10.2 of this Agreement.
(b) Seller shall maintain the Property free from waste and neglect and in its current condition and repair and shall keep and perform or cause to be performed all obligations of the landlord under the Leases, all obligations of Seller under the Contracts and all Licenses, all obligations of Seller under the Legal Requirements, and all obligations arising under the Existing Debt, to and including the Closing Date or termination of this Agreement. Seller shall operate the Property in compliance with all Legal Requirements between the date of this Agreement and the Closing Date. Seller will in all events comply with any notice received from any insurance company which has issued a policy with respect to any of the Parcels, or by any board of fire underwriters (or other body exercising similar functions) and complete all repairs, alterations or other work required in order to comply with such notice and to correct any such defect prior to Closing, at Seller’s cost and expense, if such notice is received by Seller prior to Closing hereunder.
(c) Seller shall, effective as of Closing, terminate the Existing Management Agreements and any other Contracts Purchaser may by written notice request Seller to terminate, other than contracts that cannot be terminated upon thirty (30) days written notice including, but not limited to copier and postage leases and cable and linen contracts identified on Exhibit G (collectively, the “Rejected Contracts”), and Seller shall pay at or prior to the Closing all amounts which are or may come due under the Existing Management Agreements and such Rejected Contracts. Purchaser’s failure to request Seller terminate any Contract shall be deemed Purchaser’s election to direct Seller to assign such Contract to Purchaser as of the Closing Date. Seller shall pay all termination fees, charges and other costs resulting from the termination of the Existing Management Agreements and any Contracts prior to Closing or incident to the sale of the Property to Purchaser. Seller shall indemnify and hold Purchaser harmless from and of any obligation, claim, demand, loss, liability, cause of action, cost and expense (including reasonable attorneys’ fees), with respect to the Existing Management Agreements and such other Contracts, including, without limitation, from Seller’s failure to pay such termination and other like fees and costs. With respect to any guaranties or warranties included in the Contracts to be assigned to Purchaser, Seller at Seller’s expense shall obtain any consents or approvals required for transfer of the guaranties or warranties to Purchaser (such as consents commonly necessary to assign roof warranties) if such guaranties or warranties are assignable and, if such guaranties and warranties are not assignable, Seller shall take commercially reasonable steps to (i) assure that the rights of Seller thereunder shall be preserved for the benefit of Purchaser, and (ii) facilitate receipt of any payments received after Closing thereunder, which payment Seller shall promptly deliver to Purchaser. The provisions of this Paragraph 10.1(c) shall survive the Closing.
(d) Without the prior written consent of Purchaser, Seller shall will not enter into any new Contractscontracts affecting the Property, or cancel, modify or renew any existing Contracts (other than the Rejected Contracts), other than Contracts which by their terms are terminable upon not more than thirty (30) days’ notice, by the then owner of the Property, without penalty or the payment prior written consent of any termination fee or other similar payment and are otherwise in accordance with Seller’s current business practices. Such Purchaser, which consent (i) shall not be unreasonably withheld if such request is made prior to the expiration of the Contingency Period or (ii) may be withheld in Purchaser’s sole and absolute discretion if such request is made after the expiration of the Contingency Periodwithheld. Seller shall comply with all applicable terms, provisions and obligations of Seller contained in the Contracts and any other contractual arrangements referred to in this Agreement. Notwithstanding the foregoing, in no event shall Seller enter into, cancel, modify or renew any Contract in connection with the Memory Care Expansion which is not terminable upon not more than thirty (30) days’ notice without the prior written consent of Purchaser, which consent (A) shall not be unreasonably withheld, conditioned or delayed prior Agreement applicable to the expiration of the Contingency Period and (B) may be given or withheld in Purchaser’s sole and absolute discretion from and after the expiration of the Contingency PeriodSeller.
(e) Seller shall pay as they become due any and all taxes and assessments levied against the Property, all utility charges incurred with respect to the Property, all debt service payments on loans secured by the Property and all other expenses incurred in the operation of the Property pursuant to the standards required by this Article 10.
(fd) Seller shall notify Purchaser promptly if Seller becomes aware of any fact, circumstance, transaction or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in Section 4.1 incomplete, false or misleading untrue in any material respect.
(ge) Seller shall will maintain in full force effect all policies of casualty and effect insurance liability insurance, or similar policies of insurance, with the same limits of coverage comparable to which it they now carries carry with respect to the Property.
(h) Seller shall use commercially reasonable efforts to lease vacant units on Seller’s current lease form and at market rental rates as reasonably determined by Seller, subject to Section 10.2 below.
(i) Seller shall cause Property Manager to maintain normal levels of inventory and supplies on hand for the business (including medical supplies, food, beverages, office and kitchen supplies), consistent with past practices and as necessary to comply with applicable laws and regulations.
(j) Seller shall cause Property Manager not to take any actions, or omit to take any actions, that constitute a breach of this Agreement, were the acts or omission to have been taken by Seller.
(k) Seller shall use reasonable best efforts to maintain in effect until Closing its existing management agreements with Property Manager for the assisted living, memory care and independent living facilities located on the Real Property (the “Existing Management Agreements”). Seller shall cause the Existing Management Agreements to be terminated concurrent with the Closing without any expense to or obligation of Purchaser with respect thereto. The provisions of this Paragraph 10.1(k) shall survive the Closing.
(l) Within thirty (30) days after the end of each calendar month from the date hereof until the Closing, Seller shall deliver to Purchaser a current Rent Roll and financial reports with respect to the Property’s operations for such month, which report shall indicate, without limitation, gross rental income, gross income from other (identified) sources, expenses of each kind and amount, rent delinquencies and vacancies; provided, however, that with respect to the calendar month immediately preceding the month in which the then scheduled Closing Date is scheduled to occur, all such materials shall be provided within twenty (20) days after the end of such calendar month. As of the date set forth thereon, (i) each such Rent Roll will list all then-existing Leases related to the Property and (ii) the information set forth on each such Rent Roll with respect to rent, deposits, delinquencies, credits and other income and charges will be true and correct.
(m) Seller shall diligently continue to pursue the upgrades to the units at the independent living facility located on the Courtyard Plaza Parcel as disclosed to Purchaser and shall use commercially reasonable efforts to complete such upgrades prior to the Closing Date.
(n) Seller shall diligently continue to pursue and progress the Memory Care Expansion. Seller shall not modify any of the Licenses, plans or specifications related to the Memory Care Expansion without Purchaser’s prior written consent in Purchaser, which consent (i) shall not be unreasonably withheld, conditioned or delayed prior to the expiration of the Contingency Period, and (ii) may be given or withheld in Purchaser’s sole and absolute discretion from and after the expiration of the Contingency Period. In the event that, prior to the Closing, Seller receives any notice or other material communication from any governmental authority relating to the Memory Care Expansion, or from any other Person objecting to or otherwise complaining about the Memory Care Expansion, Seller shall promptly deliver a copy of such notice or other communication to Purchaser, and the parties shall work together in good faith to formulate a response to such notice or other communication. Seller shall pay and be responsible for all costs incurred or accrued by Seller and/or Property Manager (including hard and soft costs) in connection with the Memory Care Expansion prior to the Closing Date. Notwithstanding the foregoing, Purchaser shall provide Seller a credit at Closing in the amount of all fees previously paid by Seller to any governmental authority for the issuance of the Permits related to the Memory Care Expansion.
(o) Seller agrees to (and shall cause the Employer to) use Seller’s or the Employer’s, as applicable, commercially reasonable best efforts to retain the Employees until the Closing Date in order to ensure the continued, uninterrupted operation of the Property up through the Closing. Notwithstanding the foregoing, Seller, Property Manager and Employer, in accordance with the terms of the Management Agreement, may: (a) terminate the employment of any individual with an annual salary of less than $100,000 or make other commercially reasonable employment decisions, with respect to employees with an annual salary of less than $100,000, in the ordinary course of business consistent with existing employment practices and procedures; or (b) terminate the employment of any individual for cause, incapacity, disability or death in accordance with the existing employment practices and procedures.
(p) Seller shall, and shall cause its Property Manager to cooperate with Purchaser and its respective Affiliates in conducting customary due diligence with respect to the Property and the transition of the operation of the business conducted thereof in connection with the transactions contemplated by this Agreement, which cooperation shall include, but shall not be limited to, facilitating communications with nonresidential Tenants regarding the transition of such business, responding timely to due diligence requests, cooperating with lenders, cooperating to obtain the Licenses, and any such other cooperation as may be necessary to consummate the transfer of the business conducted by Seller. In connection therewith, Seller and its Affiliates shall provide such documents as are reasonably requested by Purchaser and its respective Affiliates, accountants, counsel, consultants and other advisors that are within Seller’s, Property Manager’s and/or their respective Affiliates’ possession or control, including, without limitation, copies of all Licenses and the documents listed on Exhibit C hereto. In connection with such due diligence, communications or interviews with any lender of Seller or its Property Manager may only be conducted with the prior consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. Any such interviews shall be conducted during normal business hours and may be conducted by telephone or in person at such places as reasonably designated by Seller.
Appears in 1 contract
Actions and Operations Pending Closing. Seller agrees that from the date hereof through at all times prior to the Closing Date:
(a) Seller Subject to conditions beyond Seller's reasonable control (which the parties agree shall not include the unavailability of funds), during the pendency of this Agreement the Hotel will continue to operate be operated and maintain the Property maintained substantially in accordance with Seller’s and Property Manager’s present standards and current business practices, provided that during said periodPresent Standards including, without the prior written consent of Purchaser which may be given or withheld in Purchaser’s sole and absolute discretion (except as indicated below)limitation, Seller shall not do, suffer or permit, or agree to do, any of the following:
(i) Enter into any transaction with respect maintaining the inventories of Fixtures and Tangible Personal Property, Inventory, Consumables, Supplies and Miscellaneous Hotel Assets, (ii) performing maintenance and repairs to or affecting the Property out Improvements and tangible Personal Property; (iii) implementing the current marketing program for the Hotel; (v) maintaining the level of customer service at the Hotel; (vi) maintaining the level of security at the Real Property; and (vii) continuing to take all Bookings in the ordinary course of business;
(ii) Sell. Without limiting the foregoing, mortgageSeller shall perform its obligations under, pledgeand otherwise comply with, encumberthe Space Leases, grant the Hotel Contracts, the Permits, any interest in or otherwise transfer or dispose of license agreements for IT Systems, the Property or any part thereof or any interest thereinLiquor License, the Management Agreement, the Bookings and Legal Requirements, in any form or manner whatsoever;
(iii) Remove from the Real Property any of the fixtures thereon or any of the Personaltyeach case in all material respects; provided, however, that damaged the Seller shall have the right to exercise any of its rights under any of the foregoing. From the date of this Agreement until the Closing or obsolete fixtures and Personalty may be replaced earlier termination of this Agreement, Seller shall promptly provide Purchaser of any written notices or discarded, as appropriate; or
(iv) Enter into complaints Seller receives concerning the presence of toxic mold or take any fungi at the Real Property or other action written claims made with respect to environmental matters at the Leases in violation of Section 10.2 of this AgreementReal Property.
(b) Seller shall maintain From and after the Property free from waste and neglect and in its current condition and repair and shall keep and perform or cause to be performed all obligations Opening of the landlord under the LeasesEscrow, all obligations of Seller under the Contracts and all Licenses, all obligations of Seller under the Legal Requirements, and all obligations arising under the Existing Debt, to and including the Closing Date or termination of this Agreement. Seller shall operate the Property in compliance with all Legal Requirements between the date of this Agreement and the Closing Date. Seller will in all events comply with any notice received from any insurance company which has issued a policy with respect to any of the Parcels, or by any board of fire underwriters (or other body exercising similar functions) and complete all repairs, alterations or other work required in order to comply with such notice and to correct any such defect prior to Closing, at Seller’s cost and expense, if such notice is received by Seller prior to Closing hereunder.
(c) Seller shall, effective as of Closing, terminate the Existing Management Agreements and any other Contracts Purchaser may by written notice request Seller to terminate, other than contracts that cannot be terminated upon thirty (30) days written notice including, but not limited to copier and postage leases and cable and linen contracts identified on Exhibit G (collectively, the “Rejected Contracts”), and Seller shall pay at or prior to the Closing all amounts which are or may come due under the Existing Management Agreements and such Rejected Contracts. Purchaser’s failure to request Seller terminate any Contract shall be deemed Purchaser’s election to direct Seller to assign such Contract to Purchaser as of the Closing Date. Seller shall pay all termination fees, charges and other costs resulting from the termination of the Existing Management Agreements and any Contracts prior to Closing or incident to the sale of the Property to Purchaser. Seller shall indemnify and hold Purchaser harmless from and of any obligation, claim, demand, loss, liability, cause of action, cost and expense (including reasonable attorneys’ fees), with respect to the Existing Management Agreements and such other Contracts, including, without limitation, from Seller’s failure to pay such termination and other like fees and costs. With respect to any guaranties or warranties included in the Contracts to be assigned to Purchaser, Seller at Seller’s expense shall obtain any consents or approvals required for transfer of the guaranties or warranties to Purchaser (such as consents commonly necessary to assign roof warranties) if such guaranties or warranties are assignable and, if such guaranties and warranties are not assignable, Seller shall take commercially reasonable steps to (i) assure that the rights of Seller thereunder shall be preserved for the benefit of Purchaser, and (ii) facilitate receipt of any payments received after Closing thereunder, which payment Seller shall promptly deliver to Purchaser. The provisions of this Paragraph 10.1(c) shall survive the Closing.
(d) Without the prior written consent of Purchaser, Seller shall not enter into any new ContractsHotel Contract or Space Lease, or cancel, modify modify, or renew any existing Contracts (other than the Rejected Contracts)Hotel Contract or Space Lease or Permitted Exception, other than Contracts which by their terms are terminable upon not more than thirty (30) days’ notice, by the then owner of the Property, without penalty or the payment of any termination fee or other similar payment and are otherwise in accordance with Seller’s current business practices. Such consent (i) shall not be unreasonably withheld if such request is made prior to the expiration of the Contingency Period or (ii) may be withheld in Purchaser’s sole and absolute discretion if such request is made after the expiration of the Contingency Period. Seller shall comply with all applicable terms, provisions and obligations of Seller contained in the Contracts and any other contractual arrangements referred to in this Agreement. Notwithstanding the foregoing, in no event shall Seller enter into, cancel, modify or renew any Contract in connection with the Memory Care Expansion which is not terminable upon not more than thirty (30) days’ notice without the prior written consent of Purchaser, which consent (A) Purchaser shall not be unreasonably withheldwithhold, conditioned condition or delayed delay prior to the expiration of the Contingency Inspection Period and (B) but which Purchaser may be given or withheld withhold in Purchaser’s its sole and absolute discretion from and after the expiration of the Contingency Inspection Period; provided, however, that Purchaser's consent shall not be required for any Hotel Contract entered into with a third party prior to the expiration of the Inspection Period as long as (i) such Hotel Contract is cancelable upon not more than thirty (30) days notice without penalty or premium payment and (ii) Seller promptly gives notice to Purchaser of such Hotel Contract. If Purchaser fails to respond to a request for consent within ten (10) days after receipt of such request, such consent shall be deemed given.
(c) Seller shall have the right, without notice to or consent of Purchaser, to make Bookings in the ordinary course of business, at no less than the Hotel's standard rates (including customary discounted rates as long as such discounted rates are bona fide third party Bookings).
(d) Seller shall use commercially reasonable efforts to preserve in force all existing Permits and to cause all those expiring on or before the Closing Date to be renewed prior to the Closing Date. If any such Permit shall be suspended or revoked, Seller shall promptly notify Purchaser and shall take commercially reasonable measures to cause the reinstatement of such Permit.
(e) Seller shall pay as they become due any and all taxes and assessments levied against the Property, all utility charges incurred with respect to the Property, all debt service payments on loans secured by the Property and all other expenses incurred in the operation of the Property pursuant to the standards required by this Article 10.
(f) Seller shall notify Purchaser promptly if Seller becomes aware of any fact, circumstance, transaction or occurrence prior to the Closing Date which would make any of the representations or warranties of Seller contained in Section 4.1 incomplete, false or misleading in any material respect.
(g) Seller shall will maintain in full force effect all policies of casualty and effect insurance liability insurance, or similar policies of insurance, with the same limits of coverage comparable to which it now carries with respect to the PropertyHotel.
(f) Seller shall not remove any Fixtures and Tangible Personal Property from the Property (other than in the ordinary course of business in which case adequate replacements shall have been made).
(g) Seller shall not alter the terms and conditions of the employment of any Employees, except in accordance with past practice consistently applied.
(h) Seller shall use commercially reasonable efforts to lease vacant units on Seller’s current lease form and at market rental rates as reasonably determined by Seller, subject to Section 10.2 below.
not (i) Seller shall cause Property Manager to maintain normal levels of inventory and supplies on hand for the business (including medical supplies, food, beverages, office and kitchen supplies), consistent with past practices and as necessary to comply with applicable laws and regulations.
(j) Seller shall cause Property Manager not to take create or allow any actions, lien or omit to take any actions, that constitute a breach of this Agreement, were the acts or omission to have been taken by Seller.
(k) Seller shall use reasonable best efforts to maintain in effect until Closing its existing management agreements with Property Manager for the assisted living, memory care and independent living facilities located on the Real Property (the “Existing Management Agreements”). Seller shall cause the Existing Management Agreements similar encumbrance to be terminated concurrent with the Closing without any expense to or obligation of Purchaser with respect thereto. The provisions of this Paragraph 10.1(k) shall survive the Closing.
(l) Within thirty (30) days after the end of each calendar month from the date hereof until the Closing, Seller shall deliver to Purchaser a current Rent Roll and financial reports with respect to placed against the Property’s operations for such month, which report shall indicate, without limitation, gross rental income, gross income from other (identified) sources, expenses of each kind and amount, rent delinquencies and vacancies; provided, however, that with respect to the calendar month immediately preceding the month in which the then scheduled Closing Date is scheduled to occur, all such materials shall be provided within twenty (20) days after the end of such calendar month. As of the date set forth thereon, (i) each such Rent Roll will list all then-existing Leases related to the Property and (ii) the information set forth on each such Rent Roll with respect to rent, deposits, delinquencies, credits and other income and charges will be true and correct.
(m) Seller shall diligently continue to pursue the upgrades to the units at the independent living facility located on the Courtyard Plaza Parcel as disclosed to Purchaser and shall use commercially reasonable efforts to complete promptly discharge any such upgrades prior encumbrance that may arise, (ii) grant or enter into any easement, restrictive covenant or similar agreement affecting title to the Closing Date.
(n) Seller shall diligently continue to pursue and progress the Memory Care Expansion. Seller shall not modify any of the Licenses, plans or specifications related to the Memory Care Expansion Real Property without Purchaser’s 's prior written consent in Purchaser, which consent (i) shall not be unreasonably withheld, conditioned or delayed prior to the expiration of the Contingency Period, and (ii) may be given or withheld in Purchaser’s its sole and absolute discretion from and after the expiration of the Contingency Period. In the event that, prior to the Closing, Seller receives any notice or other material communication from any governmental authority relating to the Memory Care Expansionbut good faith discretion, or from (iii) cancel, modify, or renew any other Person objecting to or otherwise complaining about the Memory Care Expansion, Seller shall promptly deliver a copy of such notice or other communication to existing Permitted Exception without Purchaser, and the parties shall work together 's prior written consent in its sole but good faith to formulate a response to such notice or other communication. Seller shall pay and be responsible for all costs incurred or accrued by Seller and/or Property Manager (including hard and soft costs) in connection with the Memory Care Expansion prior to the Closing Date. Notwithstanding the foregoing, Purchaser shall provide Seller a credit at Closing in the amount of all fees previously paid by Seller to any governmental authority for the issuance of the Permits related to the Memory Care Expansiondiscretion.
(o) Seller agrees to (and shall cause the Employer to) use Seller’s or the Employer’s, as applicable, commercially reasonable best efforts to retain the Employees until the Closing Date in order to ensure the continued, uninterrupted operation of the Property up through the Closing. Notwithstanding the foregoing, Seller, Property Manager and Employer, in accordance with the terms of the Management Agreement, may: (a) terminate the employment of any individual with an annual salary of less than $100,000 or make other commercially reasonable employment decisions, with respect to employees with an annual salary of less than $100,000, in the ordinary course of business consistent with existing employment practices and procedures; or (b) terminate the employment of any individual for cause, incapacity, disability or death in accordance with the existing employment practices and procedures.
(p) Seller shall, and shall cause its Property Manager to cooperate with Purchaser and its respective Affiliates in conducting customary due diligence with respect to the Property and the transition of the operation of the business conducted thereof in connection with the transactions contemplated by this Agreement, which cooperation shall include, but shall not be limited to, facilitating communications with nonresidential Tenants regarding the transition of such business, responding timely to due diligence requests, cooperating with lenders, cooperating to obtain the Licenses, and any such other cooperation as may be necessary to consummate the transfer of the business conducted by Seller. In connection therewith, Seller and its Affiliates shall provide such documents as are reasonably requested by Purchaser and its respective Affiliates, accountants, counsel, consultants and other advisors that are within Seller’s, Property Manager’s and/or their respective Affiliates’ possession or control, including, without limitation, copies of all Licenses and the documents listed on Exhibit C hereto. In connection with such due diligence, communications or interviews with any lender of Seller or its Property Manager may only be conducted with the prior consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. Any such interviews shall be conducted during normal business hours and may be conducted by telephone or in person at such places as reasonably designated by Seller.
Appears in 1 contract
Sources: Hotel Purchase and Sale Agreement (Boykin Lodging Co)