Common use of Completion of the Asset Clause in Contracts

Completion of the Asset. (a) “Completion of the Asset” shall be deemed to have occurred upon “Substantial Completion” (as defined in the Lease) of “Landlord’s Improvements” (as defined in the Lease), (. Seller shall notify Buyer when such Substantial Completion of such Landlord’s Improvements has occurred. Buyer will then have seven (7) business days after receipt of such notice to inspect Landlord’s Improvements in order to ensure they have been constructed according to the “Approved Plans and Specifications” referenced in the Lease. Buyer shall notify Seller in writing within said seven (7) business days if Buyer has a good faith basis to believe that Landlord’s Improvements were not constructed according to the Approved Plans and Specifications. Seller shall be obligated to correct only those items which are objected to by FedEx (the “Approved Punchlist Work”), and Seller’s correction of such Approved Punchlist Work shall be performed as set out in the Lease prior to Closing. Seller shall promptly notify Buyer of the items that Seller is correcting. If Buyer does not accept Seller’s assertion of such Completion of the Asset, in Buyer’s sole and absolute discretion, Buyer may terminate this Agreement and the Escrow by written notice to Seller and Escrow Holder, in which event Buyer’s Deposit and Additional Deposit plus all accrued and unpaid interest thereon shall be returned to Buyer and thereafter the Escrow, this Agreement and the rights and obligations of the parties hereunder shall terminate, except as and to the extent otherwise expressly herein provided. (b) In the event the conditions in Section 12(b), (c) or (d) are not satisfied or waived by the date that is thirty (30) after Completion of the Asset, Buyer, in its sole and absolute discretion, may elect either of the following options by written notice thereof to Seller: (i) Terminate this Agreement, in which event Buyer’s Deposit and Additional Deposit plus all accrued and unpaid interest thereon shall be returned to Buyer and thereafter the Escrow, this Agreement and the rights and obligations of the parties hereunder shall terminate, except as and to the extent otherwise expressly herein provided; (ii) Waive any such unsatisfied conditions and proceed with Closing within five (5) business days after written notice thereof to Seller, in which event (A) Seller shall be obligated to complete the Approved Punchlist Work in full compliance with the terms and conditions of the Lease and pay for all costs in connection with Landlord’s Work, (B) Seller shall indemnify, defend and hold harmless Buyer for any failure by Seller to complete the Approved Punchlist Work or pay for all costs associated with Landlord’s Work in full compliance with the terms and conditions of the Lease and (C) a portion of the Purchase Price equal to one hundred twenty-five percent (125%) of the estimated amount of the aggregate of the Approved Punchlist Work plus any unpaid costs in connectin with Landlord’s Work (as determined by mutual agreement by Buyer and Seller; the “Holdback Amount”) shall be held in Escrow (the “Punchlist Escrow”) until Seller satisfies its obligations under clause (A) above and provides reasonable evidence to Buyer substantiating such satisfaction, at which time, the Punchlist Escrow shall be terminated and the amounts held therein shall be released to Seller; provided Buyer has not delivered written notice to Escrow Holder of a claim by FedEx in connection with the Approved Punchlist Work. If however, any such claim has been made by FedEx, two hundred percent (200%) of the amount (in no event to exceed the Holdback Amount) of all such claims shall remain in the Punchlist Escrow until resolution thereof between Buyer and Seller. Prior to Seller satisfying its obligations under clause (A) above and providing reasonable evidence to Buyer substantiating such satisfaction, in the event FedEx claims any default by Seller or “Landlord” (as defined in the Lease) with respect to the completion of such Approved Punchlist Work or otherwises begins to exercise FedEx’s rights or remedies with respect to the failure to complete such Approved Punchlist Work, then Buyer may terminate the Punchlist Escrow by written notice to Escrow Holder and Seller, in which event the Punchlist Escrow shall be terminated and the amounts held therein shall be released as follows: (I) to Buyer in an amount equal to one hundred percent (100%) of the estimated cost of the remaining Approved Punchlist Work and FedEx claims in connection therewith and (II) to Seller in an amount equal to the remaining funds in such Punchlist Escrow. In the event Buyer elects to terminate the Punchlist Escrow pursuant to the foregoing sentence, Seller shall no longer be obligated to complete any remaining portion of the Approved Punchlist Work. If a dispute arises over any claim to the Holdback Amount, Escrow Holder may, but is not required to, interplead the Holdback Amount with a court located within the County pending a determination with respect to such claim. (c) Seller shall provide prompt written notice to Buyer of any amendment to the Lease, any changes to the Approved Plans and Specifications or any other change to Seller’s Documents or Seller’s representation or warranties under this Agreement. Buyer shall have the right, exercisable by written notice delivered to Seller and Escrow Holder within fifteen (15) days of receipt of Seller’s notice, to (i) approve any such amendments or changes; or (ii) terminate the Escrow, in which event Buyer’s Deposit and Additional Deposit plus all accrued and unpaid interest thereon shall be returned to Buyer and thereafter the Escrow, this Agreement and the rights and obligations of the parties hereunder shall terminate, except as and to the extent otherwise expressly herein provided.

Completion of the Asset. (a) “Completion of the Asset” shall be deemed to have occurred upon final completion of the Additional Improvements and Seller’s delivery to Buyer of the following documents (collectively, the “Substantial Completion” Completion Documents”): (as defined i) the Estoppel Certificate; (ii) all such information required by the Title Company to allow the Title Company to delete any exceptions related to liens against the Property in connection with the Additional Improvements; (iii) if required by Buyer, an updated ALTA survey (the “Survey”), prepared by a licensed land surveyor reasonably approved by Buyer, at Buyer’s sole cost and expense, certified to Title Company and Buyer and their successors and assigns and any other entity required by Buyer, meeting the standards required of Title Company to remove any exceptions to the Title Policy related to survey or inspection items, subject to reasonable modifications approved by Buyer, dated after substantial completion of the Additional Improvements, which Survey may include the depiction of the location of all improvements on the Property in relation to all boundary lines and easements; (iv) copies of all warranties applicable to the Additional Improvements; (v) copies of any other documents required to be provided to Tenant in connection with the completion of the Additional Improvements; and (vi) a copy of the recorded plat or subdivision map in the Lease) of “Landlord’s Improvements” (as defined in form approved or deemed approved by Buyer causing the Lease), (. Seller shall notify Buyer when such Substantial Completion of such Landlord’s Improvements has occurredLand to be a separate legal parcel. Buyer will then have seven five (75) business days after receipt of such notice the Completion Documents to inspect Landlord’s the Additional Improvements in order to ensure they have been constructed according to the “Approved Plans and Specifications” referenced in Specifications for such Additional Improvements as provided to Buyer as part of the LeaseProperty Documents. Buyer shall notify Seller in writing within said seven five (75) business days if Buyer has a good faith basis to believe that Landlord’s the Additional Improvements were not constructed according to the Approved Plans and SpecificationsSpecifications or that the Completion Documents are not accurate or complete. Seller shall be obligated to correct only those items which are objected to by FedEx (the “Approved Punchlist Work”), and Seller’s correction of such Approved Punchlist Work shall be performed as set out in the Lease prior to Closing. Seller shall promptly notify Buyer If Completion of the items that Seller is correcting. If Asset has not occurred by November 15, 2012, Buyer does not accept may elect may either of the following options by written notice thereof to Seller’s assertion : (i) Continue the term of such this Agreement pending Completion of the Asset, in Buyer’s sole and absolute discretion, Buyer may terminate ; or (ii) Terminate this Agreement and the Escrow by written notice to Seller and Escrow HolderAgreement, in which event Buyer’s Deposit and Additional Deposit plus all accrued and unpaid interest thereon shall be returned to Buyer and thereafter the Escrow, this Agreement and the rights and obligations of the parties hereunder shall terminate, except as and to the extent otherwise expressly herein provided. (b) In the event the conditions in Section 12(b)If Buyer elects to continue this Agreement pursuant to clause (i) above, (c) or (d) are not satisfied or waived then by the date that is thirty fifteenth (3015th) after day of each subsequent month, if Completion of the Asset, Buyer, in its sole and absolute discretion, may elect either of the following options by written notice thereof to Seller: (i) Terminate this Agreement, in which event Buyer’s Deposit and Additional Deposit plus all accrued and unpaid interest thereon shall be returned to Buyer and thereafter the Escrow, this Agreement and the rights and obligations of the parties hereunder shall terminate, except as and to the extent otherwise expressly herein provided; (ii) Waive any such unsatisfied conditions and proceed with Closing within five (5) business days after written notice thereof to Seller, in which event (A) Seller shall be obligated to complete the Approved Punchlist Work in full compliance with the terms and conditions of the Lease and pay for all costs in connection with Landlord’s Work, (B) Seller shall indemnify, defend and hold harmless Buyer for any failure by Seller to complete the Approved Punchlist Work or pay for all costs associated with Landlord’s Work in full compliance with the terms and conditions of the Lease and (C) a portion of the Purchase Price equal to one hundred twenty-five percent (125%) of the estimated amount of the aggregate of the Approved Punchlist Work plus any unpaid costs in connectin with Landlord’s Work (as determined by mutual agreement by Buyer and Seller; the “Holdback Amount”) shall be held in Escrow (the “Punchlist Escrow”) until Seller satisfies its obligations under clause (A) above and provides reasonable evidence to Buyer substantiating such satisfaction, at which time, the Punchlist Escrow shall be terminated and the amounts held therein shall be released to Seller; provided Buyer Asset has not delivered written notice occurred, Buyer shall have the same option to Escrow Holder of a claim by FedEx in connection with the Approved Punchlist Work. If however, any such claim has been made by FedEx, two hundred percent (200%) of the amount (in no event to exceed the Holdback Amount) of all such claims shall remain in the Punchlist Escrow until resolution thereof between Buyer and Seller. Prior to Seller satisfying its obligations under clause (A) above and providing reasonable evidence to Buyer substantiating such satisfaction, in the event FedEx claims any default by Seller continue or “Landlord” (terminate as defined in the Lease) with respect to the completion of such Approved Punchlist Work or otherwises begins to exercise FedEx’s rights or remedies with respect to the failure to complete such Approved Punchlist Work, then Buyer may terminate the Punchlist Escrow by written notice to Escrow Holder and Seller, in which event the Punchlist Escrow shall be terminated and the amounts held therein shall be released as follows: (I) to Buyer in an amount equal to one hundred percent (100%) of the estimated cost of the remaining Approved Punchlist Work and FedEx claims in connection therewith and (II) to Seller in an amount equal to the remaining funds in such Punchlist Escrow. In the event Buyer elects to terminate the Punchlist Escrow pursuant to the foregoing sentence, Seller shall no longer be obligated to complete any remaining portion of the Approved Punchlist Work. If a dispute arises over any claim to the Holdback Amount, Escrow Holder may, but is not required to, interplead the Holdback Amount with a court located within the County pending a determination with respect to such claimset forth above. (c) When Seller reasonably believes that all requirements for Completion of the Asset will be achieved within twenty (20) days, Seller shall provide prompt written notice thereof to Buyer of (the “Anticipated Completion Notice”). (d) Seller hereby agrees to protect, defend, indemnify and hold Buyer free and harmless from any amendment lien claims related to the Lease, any changes to Additional Improvements. The foregoing indemnity shall survive the Approved Plans and Specifications or any other change to Seller’s Documents or Seller’s representation or warranties under this Agreement. Buyer shall have the right, exercisable by written notice delivered to Seller and Escrow Holder within fifteen (15) days of receipt of Seller’s notice, to (i) approve any such amendments or changes; or (ii) terminate the Escrow, in which event Buyer’s Deposit and Additional Deposit plus all accrued and unpaid interest thereon shall be returned to Buyer and thereafter the Escrow, this Agreement and the rights and obligations of the parties hereunder shall terminate, except as and to the extent otherwise expressly herein providedClosing.