Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser set forth elsewhere in this Agreement, Purchaser’s obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller: (a) Seller shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the Closing; (b) On the Closing Date, the representations of Seller set forth in Section 7.3 shall be true, complete and accurate in all material respects; (c) On the Closing Date, good and clear, record and marketable title to the Property shall be conveyed to Purchaser subject only to the Permitted Exceptions, except that: (i) the exceptions for mechanic’s liens, unrecorded easements and sovereign lands shall be deleted; (ii) provided Purchaser delivers a properly certified survey meeting minimum state standards, the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes not due and payable as of the Closing and owing for the year of Closing and subsequent years; (iv) the parties-in-possession exception shall be deleted except as to the Tenants, as tenants only, as set forth on the Rent Rolls; and (v) the exclusion relating to creditor’s rights shall be deleted, if available; (d) Seller shall have provided to Purchaser a final, non-appealable certificate of occupancy for all of the Improvements that are occupied as of the Closing; (e) Simultaneously with the consummation of the transactions contemplated by this Agreement, Purchaser (or its affiliate) shall have fully consummated the transactions contemplated by: (i) that certain Purchase and Sale Agreement dated of even date herewith by and between Agora Suites, LLC, a Delaware limited liability company, as seller, and Purchaser, as purchaser, with respect to the property commonly known as The Lodge at Athens and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇; (ii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Columbia, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and (iii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Tampa, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tampa, Florida. In the event that any condition precedent in favor of Purchaser contained in this Section 6.1 or elsewhere in this Agreement is not satisfied as required herein, Purchaser shall have the right to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement, or (ii) terminate this Agreement in which event the Deposit shall immediately be returned to Purchaser and Purchaser and Seller shall have no further obligations or liabilities hereunder other than Purchaser’s obligations under Section 5.1(b) and Section 5.3. Notwithstanding anything herein to the contrary, if such failure of a condition precedent is also a default by Seller pursuant to Section 10.2 hereof, then in addition to Purchaser’s remedies set forth above in this Section 6.1, Purchaser may pursue any and all remedies available to Purchaser pursuant to Section 10.2 hereof.
Appears in 2 contracts
Sources: Real Estate Purchase and Sale Agreement, Real Estate Purchase and Sale Agreement (Excelsior Lasalle Property Fund Inc)
Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser set forth elsewhere in this Agreement, Purchaser’s obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller:.
(a) Seller shall have performed and complied and shall have caused the Company to have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller or the Company, as applicable, prior to or at the Closing;
(b) On the Closing Date, the representations of Seller Representations set forth in Section 7.3 shall be true, complete and accurate in all material respectsaccurate;
(c) Purchaser shall have received an estoppel certificate from the Tenant dated no earlier than thirty (30) days prior to the Closing Date reflecting the terms of the Lease and otherwise substantially in the form attached hereto as Exhibit B. This condition shall not be satisfied if any Tenant estoppel certificate discloses: (i) any default by landlord or Tenant; (ii) any amendment, modification or supplement to the Lease that was not provided to Purchaser before the commencement of the Restricted Period; or (iii) any other information that is inconsistent in any material respect with the Lease or related information as provided to Purchaser before the commencement of the Restricted Period. Seller shall cause the Company to use good faith, commercially reasonable efforts to obtain such estoppel certificate from the Tenant, and shall deliver a copy of such estoppel to Purchaser promptly upon receipt thereof by Seller or the Company. Seller shall allow Purchaser to review the estoppel certificate before presenting it to the Tenant;
(d) Purchaser shall have received a subordination, non-disturbance and attornment agreement (“SNDA”), subordinating the Lease to the loan of Purchaser’s mortgage lender, if any, in a form that is recordable in the land records of the Property and is reasonably acceptable to Purchaser and such lender. Seller shall use good faith, commercially reasonable efforts to obtain such SNDA, and shall deliver the original of such SNDA in recordable form promptly upon receipt thereof by Seller;
(e) On the Closing Date, good and clear, record and marketable title to the Property shall be conveyed to Purchaser vested in the Company subject only to the Permitted ExceptionsExceptions and the Title Company shall issue to the Company an extended coverage owner’s title insurance policy (on the current ALTA Form B) in the amount of the Purchase Price, together with the Required Endorsements, insuring good and indefeasible fee simple title to the Real Property in the Company, subject only to the Permitted Exceptions and the standard printed exceptions, except that: (i) the exceptions for mechanic’s liens, unrecorded easements and sovereign lands shall be deleted; (ii) provided Purchaser delivers a properly certified survey meeting minimum state standards, the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes not due and payable as of the Closing and owing for the year of Closing closing and subsequent years; (iv) the parties-in-possession exception shall be deleted except as to the TenantsTenant, as tenants tenant only, as set forth on provided for in the Rent RollsLease; and (v) the exclusion relating to creditor’s rights shall be deleted, if available;
(df) On the Closing Date, (i) the Property shall be in the same condition that it is in now, reasonable wear and tear excepted, and free from tenants and occupants, except for the Tenant pursuant to the Lease; (ii) Seller shall own one hundred percent (100%) of the Membership Interests in the Company, free from all liens and encumbrances, (iii) there shall be no judicial or administrative or condemnation proceeding pending or threatened concerning the Property nor shall there be any judicial or administrative proceeding pending or threatened against the Company that was not disclosed in writing to Purchaser before the commencement of the Restricted Period; (iv) the Property and the use and operation thereof shall comply in all material respects with all Legal Requirements; (v) the Lease shall be in full force and effect and free from default, except for any default that was disclosed in writing to Purchaser before the Closing Date; and (vi) there shall be no bankruptcy proceeding pending or threatened in writing with respect to the Tenant or the Company;
(g) On the Closing Date, there shall be no Hazardous Materials at the Property that have provided not been fully remediated in accordance with all applicable laws, and Purchaser shall have received a third party environmental report satisfactory to Purchaser confirming the same;
(h) Purchaser shall have received a certificate of insurance evidencing the various insurance coverages required to be maintained by the Tenant pursuant to the terms of the Lease;
(i) Seller shall provide to Purchaser a final, non-appealable certificate of occupancy for all of the Improvements that are occupied as and any certificates or approvals necessary to permit the use of any parking facilities at the ClosingProperty (collectively, the “Certificate of Occupancy”);
(ej) Simultaneously with No action or proceeding by or before any governmental authority (as they relate to the consummation of Property subject to the Closing) shall have been instituted that is reasonably expected to restrain, prohibit or invalidate the transactions contemplated by this Agreement, Purchaser other than an action or proceeding instituted by Seller;
(or its affiliatek) All necessary consents of governmental and private parties (as they relate to the Property subject to the Closing) to effect the transactions contemplated by this Agreement[, including, without limitation, consents of lenders,](5) shall have fully consummated the transactions contemplated by:been obtained; [and]
(il) If OP Units are to be issued as part of the consideration to be paid for Membership Interests, Purchaser shall, based on advice of its counsel, be reasonably satisfied that certain Purchase such issuance and Sale Agreement dated the contemplated distribution of even date herewith by and between Agora Suites, LLC, a Delaware limited liability company, as seller, and Purchaser, as purchaser, with respect OP Units to Seller may be made without registration under the property commonly known as The Lodge at Athens and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(ii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Columbia, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇Securities Act in reliance upon Regulation D[; and
(iii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Tampa, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tampa, Florida. In the event that any condition precedent in favor of Purchaser contained in this Section 6.1 or elsewhere in this Agreement is not satisfied as required herein, Purchaser shall have the right to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement, or (ii) terminate this Agreement in which event the Deposit shall immediately be returned to Purchaser and Purchaser and Seller shall have no further obligations or liabilities hereunder other than Purchaser’s obligations under Section 5.1(b) and Section 5.3. Notwithstanding anything herein to the contrary, if such failure of a condition precedent is also a default by Seller pursuant to Section 10.2 hereof, then in addition to Purchaser’s remedies set forth above in this Section 6.1, Purchaser may pursue any and all remedies available to Purchaser pursuant to Section 10.2 hereof.
Appears in 2 contracts
Sources: Purchase Option Agreement (STAG Industrial, Inc.), Purchase Option Agreement (STAG Industrial, Inc.)
Conditions Precedent Favoring Purchaser. (a) In addition to any other conditions precedent in favor of Purchaser as may be expressly set forth elsewhere in this Agreement, Purchaser’s obligations under this Agreement are expressly subject to the timely fulfillment satisfaction of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller:.
(ai) Seller shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the Closing;.
(bii) On the Closing Date, the representations of Seller set forth in Section 7.3 7.2 shall be true, complete and accurate in all material respects;, subject to: (1) changes that: (y) are caused by the acts or omissions of Purchaser or its agents or affiliates; or (z) are a result of the operation of the Property in the normal course of business since the date hereof and in accordance with the terms of this Agreement and do not, individually or in the aggregate, have a material adverse effect on the value or operation of the Property; and (2) casualty or condemnation (which shall be governed by Sections 6.4 and 6.5, respectively).
(ciii) On the Closing Date, good and clear, record and marketable title to the Property shall be conveyed to Purchaser Purchaser, subject only to the Permitted Exceptions, except that: .
(iiv) the exceptions for mechanic’s liens, unrecorded easements and sovereign lands shall be deleted; (ii) provided Purchaser delivers a properly certified survey meeting minimum state standards, the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes not due and payable as As of the Closing and owing for Date, the year of Closing and subsequent years; work more particularly described in the Proposal shall have been performed in all material respects.
(ivb) the parties-in-possession exception shall be deleted except as Subject to Purchaser’s right to terminate this Agreement prior to the Tenants, as tenants only, as set forth on the Rent Rolls; and (v) the exclusion relating to creditor’s rights shall be deleted, if available;
(d) Seller shall have provided to Purchaser a final, non-appealable certificate of occupancy for all expiration of the Improvements that are occupied as of the Closing;
(e) Simultaneously Study Period in accordance with the consummation terms of the transactions contemplated by this AgreementSection 5.2, Purchaser (or acknowledges and agrees that its affiliate) shall have fully consummated the transactions contemplated by:
(i) that certain Purchase and Sale Agreement dated of even date herewith by and between Agora Suites, LLC, a Delaware limited liability company, as seller, and Purchaser, as purchaser, with respect obligation to the property commonly known as The Lodge at Athens and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(ii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Columbia, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and
(iii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Tampa, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tampa, Florida. In the event that any condition precedent in favor of Purchaser contained in this Section 6.1 or elsewhere in perform under this Agreement is not satisfied as required herein, Purchaser shall have the right contingent upon Purchaser’s ability to obtain any (i) waive such unsatisfied condition whereupon title shall close as provided governmental or quasi-governmental approval of changes or modifications in this Agreementuse or zoning, or (ii) terminate this Agreement in modification of any existing land use restriction, or (iii) consents to assignments of any service contracts or other agreements which event the Deposit shall immediately be returned to Purchaser and Purchaser and Seller shall have no further obligations requests, or liabilities hereunder other than Purchaser’s obligations under Section 5.1(b(iv) and Section 5.3. Notwithstanding anything herein endorsements to the contraryOwner’s Title Insurance Policy, if such failure or (v) financing for acquisition of a condition precedent is also a default by Seller pursuant to Section 10.2 hereof, then in addition to Purchaser’s remedies set forth above in this Section 6.1, Purchaser may pursue any and all remedies available to Purchaser pursuant to Section 10.2 hereofthe Property.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Lexicon Pharmaceuticals, Inc.)
Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser set forth elsewhere in this Agreement, (a) Purchaser’s obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller:.
(ai) Seller shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the Closing;.
(bii) On Subject to Section 7.4(a), on the Closing Date, the representations of Seller set forth in Section 7.3 7.2 shall be true, complete and accurate in all material respects;, subject to: (1) changes that: (y) are caused by the acts or omissions of Purchaser or its agents or affiliates; or (z) are a result of the operation of the Property in the normal course of business since the date hereof and in accordance with the terms of this Agreement and do not, individually or in the aggregate, have a material adverse effect on the value or operation of the Property; and (2) casualty or condemnation (which shall be governed by Sections 6.3 and 6.4, respectively).
(ciii) On the Closing Date, good and clear, record and marketable title to the Property shall be conveyed to Purchaser subject only to the Permitted Exceptions, except that: (i) the exceptions for mechanic’s liens, unrecorded easements and sovereign lands shall be deleted; (ii) provided Purchaser delivers a properly certified survey meeting minimum state standards, the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes not due and payable as of the Closing and owing for the year of Closing and subsequent years; .
(iv) Purchaser shall have received estoppel certificates confirming the parties-in-possession exception shall be deleted except as to the Tenants, as tenants only, as set forth on accuracy in all material respects of the Rent RollsRoll from: (1) each Major Tenant; and (v2) a sufficient number of Non-Major Tenants so that, in the exclusion relating to creditor’s rights shall be deletedaggregate, if available;
Purchaser receives estoppel certificates that cover at least 75% (dby net rentable square feet) Seller shall have provided to Purchaser a final, non-appealable certificate of occupancy for all of the Improvements that are occupied subject to Leases as of the Closing;
Closing (e) Simultaneously the “Estoppel Requirement”). Notwithstanding the foregoing, if Seller is unable to obtain a sufficient number of estoppel certificates from Tenants to meet the Estoppel Requirement, Seller may, at its sole option, substitute Seller’s Estoppel Certificates for the Non-Major Tenants to the extent necessary to satisfy the Estoppel Requirement. With respect to any Tenant for whom Seller delivers a Seller’s Estoppel Certificate, Seller shall be entitled to continue to deal with such Tenant after Closing to attempt to obtain an estoppel certificate from such Tenant. If Purchaser subsequently receives an estoppel certificate from any Tenant for whom Seller has delivered a Seller’s Estoppel Certificate, Seller shall thereupon be released from liability to the extent that the information contained in the estoppel certificate obtained from the Tenant is consistent with the consummation information contained in Seller’s Estoppel Certificate. All Tenant estoppel certificates required hereby shall be substantially in the form attached hereto as Exhibit B; provided, however that in connection with any Lease that provides for a form of tenant estoppel certificate (or the contents thereof), then the delivery of an estoppel certificate that complies in all material respects with the applicable Lease shall in all events be deemed to satisfy the requirements of this provision as to such Lease. No tenant estoppel certificate (or Seller’s Estoppel Certificate) shall count towards the Estoppel Requirement if it (A) discloses any material default by Seller that was not disclosed to Purchaser before the commencement of the transactions contemplated Restricted Period or (B) contains information that is inconsistent with the information set forth in the Rent Roll or the Leases as made available to Purchaser before the commencement of the Restricted Period, unless such inconsistency (i) was disclosed to Purchaser before the commencement of the Restricted Period or (ii) cannot reasonably be expected to have a material adverse effect on the value of the Property following the Closing or otherwise to have a material adverse effect on Purchaser following the Closing or (C) is dated prior to the date hereof. If any Tenant estoppel certificate provided to Purchaser before the Closing contains any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by the information contained in such estoppel certificate. Without limiting the foregoing, the parties hereby agree that the delivery of an estoppel certificate that does not conform to the requirements set forth above or which makes a Seller Representation false or misleading shall not, by itself, be deemed a failure of a condition precedent to Closing in favor of Purchaser. Notwithstanding anything to the contrary, an estoppel certificate that would otherwise satisfy the requirements for an acceptable estoppel certificate above, except for an alleged “landlord default” set forth in such certificate shall be deemed acceptable and shall count toward the Estoppel Requirement if Seller cures such asserted landlord default at or prior to the applicable Closing; Purchaser agrees that in no event shall the failure of Seller to obtain sufficient estoppel certificates to satisfy the Estoppel Requirement in and of itself constitute a default by Seller under this Agreement. Notwithstanding anything to the contrary in this Agreement, all tenant estoppel certificates provided to Purchaser before the end of the Study Period shall conclusively be deemed to count toward the satisfaction of the Estoppel Requirement. If Purchaser believes that any estoppel certificate delivered to it after the end of the Study Period should not count toward the satisfaction of the Estoppel Requirement as provided for in Section 6.1(a)(iv) above, Purchaser shall so notify Seller in writing within three (or 3) Business Days from Purchaser’s receipt of such estoppel certificate, which notice must set forth in reasonable detail the reasons why Purchaser does not believe that the estoppel certificate in question satisfies the requirements of Section 6.1(a)(iv). With respect to any estoppel certificate delivered to Purchaser after the end of the Study Period as to which Purchaser does not so provide Seller with written notice of its affiliateobjections within such three (3) Business Days, Purchaser shall be deemed to have fully consummated approved the transactions contemplated by:applicable estoppel certificate.
(ib) that certain Purchase and Sale Agreement dated of even date herewith by and between Agora SuitesNotwithstanding the foregoing, LLC, a Delaware limited liability company, as seller, and Purchaser, as purchaser, with respect to if the property commonly known as The Lodge at Athens and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(ii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Columbia, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and
(iii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Tampa, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tampa, Florida. In the event that any condition precedent in favor of Purchaser contained conditions set forth in this Section 6.1 or elsewhere any other condition of Closing shall not have been fulfilled on or before the Closing Date, Seller shall have the right (in its sole discretion), exercisable by written notice to Purchaser at or before the Closing, to extend the Closing Date for one or more periods of up to forty-five (45) days in total to provide additional time for the fulfillment of such conditions; provided however that if Seller exercises such extension option, the Estoppel Requirement shall not be satisfied unless the estoppel certificates delivered by Seller from Major Tenants are dated within the 30-day period prior to the rescheduled Closing Date.
(c) Subject to Purchaser’s right to terminate this Agreement prior to the expiration of the Study Period in accordance with the terms of Section 5.2, Purchaser acknowledges and agrees that its obligation to perform under this Agreement is not satisfied as required herein, Purchaser shall have the right contingent upon Purchaser’s ability to obtain any (i) waive such unsatisfied condition whereupon title shall close as provided governmental or quasi-governmental approval of changes or modifications in this Agreementuse or zoning, or (ii) terminate this Agreement in modification of any existing land use restriction, or (iii) consents to assignments of any service contracts or other agreements which event Purchaser requests, or (iv) endorsements to any title insurance to be obtained by Purchaser or its lender, or (v) financing for acquisition of the Deposit shall immediately be returned to Purchaser and Purchaser and Seller shall have no further obligations or liabilities hereunder other than Purchaser’s obligations under Section 5.1(b) and Section 5.3. Notwithstanding anything herein to the contrary, if such failure of a condition precedent is also a default by Seller pursuant to Section 10.2 hereof, then in addition to Purchaser’s remedies set forth above in this Section 6.1, Purchaser may pursue any and all remedies available to Purchaser pursuant to Section 10.2 hereofProperty.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Hines Real Estate Investment Trust Inc)
Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser set forth elsewhere in this Agreement, Purchaser’s obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller:.
(a) Seller shall have performed and complied and shall have caused the Company to have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller or the Company, as applicable, prior to or at the Closing;
(b) On the Closing Date, the representations of Seller Representations set forth in Section 7.3 shall be true, complete and accurate in all material respectsaccurate;
(c) Purchaser shall have received an estoppel certificate from the Tenant dated no earlier than thirty (30) days prior to the Closing Date reflecting the terms of the Lease and otherwise substantially in the form attached hereto as Exhibit B. This condition shall not be satisfied if any Tenant estoppel certificate discloses: (i) any default by landlord or Tenant; (ii) any amendment, modification or supplement to the Lease that was not provided to Purchaser before the commencement of the Restricted Period; or (iii) any other information that is inconsistent in any material respect with the Lease or related information as provided to Purchaser before the commencement of the Restricted Period. Seller shall cause the Company to use good faith, commercially reasonable efforts to obtain such estoppel certificate from the Tenant, and shall deliver a copy of such estoppel to Purchaser promptly upon receipt thereof by Seller or the Company. Seller shall allow Purchaser to review the estoppel certificate before presenting it to the Tenant;
(d) Purchaser shall have received a subordination, non-disturbance and attornment agreement (“SNDA”), subordinating the Lease to the loan of Purchaser’s mortgage lender, if any, in a form that is recordable in the land records of the Property and is reasonably acceptable to Purchaser and such lender. Seller shall use good faith, commercially reasonable efforts to obtain such SNDA, and shall deliver the original of such SNDA in recordable form promptly upon receipt thereof by Seller;
(e) On the Closing Date, good and clear, record and marketable title to the Property shall be conveyed to Purchaser vested in the Company subject only to the Permitted ExceptionsExceptions and the Title Company shall issue to the Company an extended coverage owner’s title insurance policy (on the current ALTA Form B) in the amount of the Purchase Price, together with the Required Endorsements, insuring good and indefeasible fee simple title to the Real Property in the Company, subject only to the Permitted Exceptions and the standard printed exceptions, except that: (i) the exceptions for mechanic’s liens, unrecorded easements and sovereign lands shall be deleted; (ii) provided Purchaser delivers a properly certified survey meeting minimum state standards, the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes not due and payable as of the Closing and owing for the year of Closing closing and subsequent years; (iv) the parties-in-possession exception shall be deleted except as to the TenantsTenant, as tenants tenant only, as set forth on provided for in the Rent RollsLease; and (v) the exclusion relating to creditor’s rights shall be deleted, if available;
(df) On the Closing Date, (i) the Property shall be in the same condition that it is in now, reasonable wear and tear excepted, and free from tenants and occupants, except for the Tenant pursuant to the Lease; (ii) Seller shall own one hundred percent (100%) of the Membership Interests in the Company, free from all liens and encumbrances, (iii) there shall be no judicial or administrative or condemnation proceeding pending or threatened concerning the Property nor shall there be any judicial or administrative proceeding pending or threatened against the Company that was not disclosed in writing to Purchaser before the commencement of the Restricted Period; (iv) the Property and the use and operation thereof shall comply in all material respects with all Legal Requirements; (v) the Lease shall be in full force and effect and free from default, except for any default that was disclosed in writing to Purchaser before the Closing Date; and (vi) there shall be no bankruptcy proceeding pending or threatened in writing with respect to the Tenant or the Company;
(g) On the Closing Date, there shall be no Hazardous Materials at the Property that have provided not been fully remediated in accordance with all applicable laws, and Purchaser shall have received a third party environmental report satisfactory to Purchaser confirming the same;
(h) Purchaser shall have received a certificate of insurance evidencing the various insurance coverages required to be maintained by the Tenant pursuant to the terms of the Lease;
(i) Seller shall provide to Purchaser a final, non-appealable certificate of occupancy for all of the Improvements that are occupied as and any certificates or approvals necessary to permit the use of any parking facilities at the ClosingProperty (collectively, the “Certificate of Occupancy”);
(ej) Simultaneously with No action or proceeding by or before any governmental authority (as they relate to the consummation of Property subject to the Closing) shall have been instituted that is reasonably expected to restrain, prohibit or invalidate the transactions contemplated by this Agreement, Purchaser other than an action or proceeding instituted by Seller;
(or its affiliatek) All necessary consents of governmental and private parties (as they relate to the Property subject to the Closing) to effect the transactions contemplated by this Agreement[, including, without limitation, consents of lenders,](5) shall have fully consummated been obtained; [and]
(l) If OP Units are to be issued as part of the transactions consideration to be paid for Membership Interests, Purchaser shall, based on advice of its counsel, be reasonably satisfied that such issuance and the contemplated by:distribution of OP Units to Seller may be made without registration under the Securities Act in reliance upon Regulation D[; and
(m) Purchaser shall have received (1) the Lender Approval in accordance with Section 6.6; (2) an estoppel certificate from Lender or other evidence reasonably acceptable to Purchaser (which may be contained within an assignment and assumption agreement executed by Lender, Seller and Purchaser) (the “Lender Estoppel”): (i) that certain Purchase confirming the identity of the Loan Documents and Sale Agreement dated any modifications or supplements thereto, (ii) confirming the identity and current balances of even date herewith by any and between Agora Suites, LLC, a Delaware limited liability company, as seller, all escrows and Purchaser, as purchaser, reserve accounts being held with respect to the property commonly known as The Lodge at Athens and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇Loan, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(ii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Columbia, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and
(iii) acknowledging that certain Purchase all principal, interest and Sale Agreement dated other amounts then due and payable has been paid in full, (iv) stating the outstanding principal balance of even date herewith by and between Campus Lodge the Loan, (v) stating that, to the best of Tampathe Lender’s knowledge, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaserthere is no default under the Loan or condition that, with respect the giving of notice, the passage of time, or both, would become a default; and (3) the assumption documents relating to Lender’s consent to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tampa, Florida. In the event that any condition precedent in favor of Purchaser contained in this Section 6.1 or elsewhere in this Agreement is not satisfied as required herein, Purchaser acquisition shall have the right to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement, or (ii) terminate this Agreement in which event the Deposit shall immediately be returned reasonably satisfactory to Purchaser in form and Purchaser substance and Seller shall have no further obligations or liabilities hereunder other than Purchaser’s obligations under Section 5.1(b) be fully executed and Section 5.3. Notwithstanding anything herein to the contrary, if such failure of a condition precedent is also a default delivered by Seller pursuant to Section 10.2 hereof, then in addition to Purchaser’s remedies set forth above in this Section 6.1, Purchaser may pursue any and all remedies available to Purchaser pursuant to Section 10.2 hereofLender](7).
Appears in 1 contract
Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser set forth elsewhere in this Agreement, (a) Purchaser’s obligations under this Agreement are expressly obligation to purchase the Property is subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller:.
(ai) Seller shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the Closing;.
(bii) On the Closing Date, the representations of Seller set forth in Section 7.3 Representations shall be true, complete and accurate, subject to: (A) changes that: (x) are caused by the acts or omissions of Purchaser or its agents or affiliates; (y) cannot reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect from and after the Closing or (z) are a result of changes to Leases or Contracts conducted in accordance with Section 6.6 of this Agreement or (B) any modification (or deemed modification) to any Seller Representation pursuant to Section 7.4(a) or Section 7.4(b); provided, however, that with respect to any Seller Representation that expressly states that it is made only with respect to facts as of a specified date, this condition shall be satisfied so long as such Seller Representation was true, complete and accurate in all material respects;respects as of or such specified date.
(ciii) On the Closing Date, good and clear, record and marketable title to the Property shall be conveyed to Purchaser subject only to the Permitted Exceptions.
(b) Notwithstanding the foregoing, except that: (i) if the exceptions for mechanic’s liens, unrecorded easements and sovereign lands shall be deleted; (ii) provided Purchaser delivers a properly certified survey meeting minimum state standards, the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes not due and payable as of the Closing and owing for the year of Closing and subsequent years; (iv) the parties-in-possession exception shall be deleted except as to the Tenants, as tenants only, as conditions set forth on the Rent Rolls; and (v) the exclusion relating to creditor’s rights shall be deleted, if available;
(d) Seller shall have provided to Purchaser a final, non-appealable certificate of occupancy for all of the Improvements that are occupied as of the Closing;
(e) Simultaneously with the consummation of the transactions contemplated by this Agreement, Purchaser (or its affiliate) shall have fully consummated the transactions contemplated by:
(i) that certain Purchase and Sale Agreement dated of even date herewith by and between Agora Suites, LLC, a Delaware limited liability company, as seller, and Purchaser, as purchaser, with respect to the property commonly known as The Lodge at Athens and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(ii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Columbia, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and
(iii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Tampa, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tampa, Florida. In the event that any condition precedent in favor of Purchaser contained in this Section 6.1 or elsewhere any other condition of Closing shall not have been fulfilled on or before the Closing Date, and/or if Seller shall elect to extend the Closing Date pursuant to Section 4.1(e) and/or Section 7.4(b), Seller shall have the right (in its sole discretion), exercisable by written notice to Purchaser at or before the Closing, to extend the Closing Date for one or more periods of up to sixty (60) days in total to provide additional time for the fulfillment of such conditions.
(c) Subject to Purchaser’s right to terminate this Agreement prior to the expiration of the Study Period in accordance with the terms of Section 5.2, Purchaser acknowledges and agrees that its obligation to perform under this Agreement is not satisfied as required herein, Purchaser shall have the right contingent upon Purchaser’s ability to obtain any (i) waive such unsatisfied condition whereupon title shall close as provided governmental or quasi-governmental approval of changes or modifications in this Agreementuse or zoning, or (ii) terminate this Agreement in which event the Deposit shall immediately be returned to Purchaser and Purchaser and Seller shall have no further obligations or liabilities hereunder other than Purchaser’s obligations under Section 5.1(b) and Section 5.3. Notwithstanding anything herein to the contrary, if such failure modification of a condition precedent is also a default by Seller pursuant to Section 10.2 hereof, then in addition to Purchaser’s remedies set forth above in this Section 6.1, Purchaser may pursue any and all remedies available to Purchaser pursuant to Section 10.2 hereofexisting land use restriction.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Plymouth Industrial REIT Inc.)
Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser set forth elsewhere in this Agreement, (a) Purchaser’s obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the applicable Closing DateDate (as may be extended), or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller:
(ai) Seller Sellers shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the Closingdate such performance was required under the terms of this Agreement;
(bii) On Subject to Section 7.4, on the applicable Closing Date, the representations of Seller set forth in Section 7.3 Representations with respect to the Properties to be conveyed on such Closing Date shall be true, complete and accurate in all material respects, subject to: (1) changes that: (x) are caused by the acts or omissions of Purchaser or its agents or affiliates; or (y) Purchaser knows or is deemed to know, as of the commencement of the Restricted Period; or (z) occur as a result of the operation of the Properties in the ordinary course of business provided that such operation is in compliance with the applicable terms and conditions of this Agreement; and (2) casualty or condemnation (which shall be governed by Sections 6.3 and 6.4);
(ciii) On the Closing Date, good and clear, record and marketable fee simple title to the Property Real Properties to be conveyed on such Closing Date, or in the case of the Ground Leases or Sub-Leases, leasehold or sub-leasehold title to the applicable Real Properties to be conveyed, shall be conveyed or assigned to Purchaser subject only to the Permitted Exceptions, except that: as evidenced by the Title Company’s irrevocable commitment together with the Endorsements Purchaser requires, to the extent such Endorsements are customarily and reasonably available in the applicable jurisdictions, subject only to payment of its usual premium, to issue one or more ALTA owner’s title insurance policies, or in the case of the Ground Leases, ALTA leasehold title insurance policies (i) collectively, “Title Policies”), to Purchaser, insuring that such title is vested in Purchaser subject only to the exceptions for mechanic’s liens, unrecorded easements and sovereign lands shall be deleted; (ii) provided Purchaser delivers a properly certified survey meeting minimum state standards, the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes not due and payable as of the Closing and owing for the year of Closing and subsequent years; (iv) the parties-in-possession exception shall be deleted except as to the Tenants, as tenants only, as set forth on the Rent Rolls; and (v) the exclusion relating to creditor’s rights shall be deleted, if available;
(d) Seller . Purchaser shall have provided the right, at no cost or liability to Sellers, to require the Title Company to obtain coinsurance or facultative reinsurance (together with the agreements in a form and content satisfactory to Purchaser a final, non-appealable certificate of occupancy for all of the Improvements that are occupied as of the Closing;
(e) Simultaneously providing Purchaser with the consummation right of “direct access” against the transactions contemplated by this Agreement, Purchaser (or its affiliatereinsurance) shall have fully consummated the transactions contemplated by:
(i) that certain Purchase and Sale Agreement dated of even date herewith by and between Agora Suites, LLC, a Delaware limited liability company, as seller, and Purchaser, as purchaser, with respect to the property commonly known Purchaser’s Title Policies in such amount and with such title companies as The Lodge at Athens Purchaser determines in Purchaser’s reasonable discretion provided that such companies issue the same coverage as the Title Company without an additional obligation on Sellers and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇if the Title Company or Purchaser is unable to obtain such coinsurance or facultative reinsurance, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇such failure shall not be a failure of this condition precedent to Purchaser’s obligations hereunder;
(iiiv) On the applicable Closing Date, the Ownership Interest shall be conveyed or assigned to Purchaser free of any liens and encumbrances;
(v) At least five (5) Business Days prior to the applicable Closing Date, Sellers shall have received from the applicable ground landlord or other relevant party and delivered copies to Purchaser of such consents (collectively, the “Consents”) that certain Purchase may be expressly required pursuant to a Ground Lease or Lease in connection with the assignment of the applicable Seller’s interest in such Ground Lease or Lease (collectively, the “Consent Properties” or singly, the “Consent Property”) to Purchaser. If one or more Consents are not delivered to Purchaser at least five (5) Business Days before the Initial Closing Date, then the Closing Date for such Property shall automatically be extended to the Second Closing Date and Sale Agreement dated the terms and provisions of even date herewith by and between Campus Lodge of ColumbiaSection 6.1(a)(ix) shall apply;
(vi) At least five (5) Business Days prior to the Closing Date, Ltd.Purchaser shall have received estoppel certificates from the applicable ground landlord under each Ground Lease to which a Seller is a party (“Ground Lease Estoppel Certificate”) which Ground Lease Estoppel Certificates shall, a Florida limited partnershipfor each such Ground Lease, be substantially in the form attached hereto as Exhibit C-3(a), Exhibit C-3(b), or Exhibit C-3(c), as sellerapplicable; provided, and Purchaserhowever, as purchaserthat if any Ground Lease provides for a form of Ground Lease Estoppel Certificate (or the contents thereof), delivery of an estoppel certificate by such ground landlord that complies in all material respects with the applicable Ground Lease shall in all events be deemed to satisfy the requirements of this provision with respect to the property commonly known as Campus Lodge Apartments form of the Ground Lease Estoppel Certificate required for such Ground Lease. Sellers shall use commercially reasonable diligent efforts to obtain Ground Lease Estoppel Certificates from each ground landlord; however, if, despite such efforts Sellers are unable to deliver all the Ground Lease Estoppels Certificates, the applicable Seller and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; andHoldings shall provide a Seller’s Estoppel Certificate for the Ground Lease to which it is a party and for which a Ground Lease Estoppel Certificate has not been otherwise delivered;
(iiivii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Tampa, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect At least five (5) Business Days prior to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tampa, Florida. In the event that any condition precedent in favor of Purchaser contained in this Section 6.1 or elsewhere in this Agreement is not satisfied as required hereinapplicable Closing Date, Purchaser shall have received evidence reasonably satisfactory to Purchaser that those Tenants who have the right to purchase their respective Properties under the rights of first offer and refusal provisions contained in their Leases, as more particularly described in Exhibit D (collectively, “Right of First Refusal”), have elected not to exercise or have waived their Right of First Refusal (“ROFR Expiration”); provided, however, if any one or more Tenant exercises its Right of First Refusal with respect to its Property (collectively, the “ROFR Properties” or singly, “ROFR Property”), (i) waive such unsatisfied condition whereupon title Seller shall close as provided in this Agreementpromptly (but not less than five (5) Business Days prior to the Closing Date) give Purchaser written notice thereof, or (ii) terminate this Agreement shall remain in which event full force and effect except that the Deposit ROFR Property shall immediately automatically be returned excluded from the Properties and the terms and conditions of Section 6.1(a)(xii) shall apply; provided, however, that if any one or more of the Tenants of the ROFR Properties prior to Purchaser and Purchaser and the Second Closing Date either defaults in its obligation to acquire the ROFR Properties or waives it right to acquire the ROFR Properties, then Seller shall have no further obligations or liabilities hereunder other than Purchaser’s obligations under Section 5.1(bpromptly give Purchaser written notice thereof (the “ROFR Reinstatement Notice”) and Section 5.3. Notwithstanding anything herein thereupon: (1) such ROFR Properties (and all components thereof) shall once again be one of the Properties to be sold pursuant to this Agreement for the Allocated Purchase Price on Exhibit A-2, (2) as of the ROFR Reinstatement Notice, all references in this Agreement to the contrary, if such failure of a condition precedent is also a default by Seller pursuant Leases shall be deemed to Section 10.2 hereof, then in addition once again include the Leases related to Purchaser’s remedies set forth above in this Section 6.1, Purchaser may pursue any the ROFR Properties and all remedies available references to Purchaser pursuant the Tenants shall be deemed to Section 10.2 hereof.once again include Tenants of the ROFR Properties, and (3) if the ROFR Reinstatement Notice is given after the date that is ten
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (STAG Industrial, Inc.)
Conditions Precedent Favoring Purchaser. In addition to any other the conditions precedent in favor of Purchaser set forth elsewhere in this Agreement, Purchaser’s 's obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller:. Purchaser, by consummation of the Closing pursuant to this Agreement, shall have waived the conditions precedent set forth in this Section 6.1 (provided, however, that any such waiver shall not in any way modify or affect any other provision, condition, obligation, representation, warranty or covenant set forth elsewhere in this Agreement).
(a) Seller shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the ClosingClosing (including, but not limited to, Section 5.7 and Section 5.8);
(b) On the Closing Date, the representations of Seller set forth in Section 7.3 Representations shall be true, complete and accurate accurate, except for changes occurring in all material respectsthe normal course of business or pursuant to the express provisions of the Lease;
(c) Purchaser shall have received an estoppel certificate from the Tenant dated no earlier than thirty (30) days prior to the Closing Date reflecting the terms of the Lease and otherwise substantially in the form attached hereto as Exhibit B. This condition shall not be satisfied if the Tenant estoppel certificate discloses: (i) any default by landlord or Tenant; (ii) any amendment, modification or supplement to the Lease that was not provided to Purchaser before the commencement of the Restricted Period or consented to in writing by the Purchaser (other than the Required Amendment); or (iii) any other information that is inconsistent in any material respect with the Lease or related Lease information as provided to Purchaser before the commencement of the Restricted Period. Seller shall use good faith, commercially reasonable efforts to obtain such estoppel certificate from the Tenant, and shall deliver a copy of such estoppel to Purchaser promptly upon receipt thereof by Seller. Seller shall allow Purchaser to review the estoppel certificate before presenting it to the Tenant in the event that the form of estoppel certificate differs from the form attached as Exhibit B;
(d) Purchaser shall have received a subordination, non-disturbance and attornment agreement ("SNDA"), subordinating the Lease to the loan of Purchaser's mortgage lender, in a form that is recordable in the land records of the Property and is reasonably acceptable to the Purchaser and such lender. Seller shall use good faith, commercially reasonable efforts to obtain such SNDA, and shall deliver the original of such SNDA in recordable form promptly upon receipt thereof by Seller;
(e) On the Closing Date, good and clear, record and marketable title to the Property shall be conveyed to Purchaser subject only to the Permitted ExceptionsExceptions and the Title Company shall issue to Purchaser an owner's title insurance policy without standard exceptions (on the current ALTA Form B), so long as the Purchaser causes a copy of the Survey to be provided to the Title Company, in the amount of the Purchase Price, together with the Required Endorsements upon payment by Purchaser for the Required Endorsements, insuring good and marketable fee simple title to the Real Property in Purchaser, subject only to the Permitted Exceptions and the standard printed exceptions, except that: (i) the exceptions for mechanic’s 's liens or construction liens, and unrecorded easements and sovereign lands shall be deleted; (ii) provided Purchaser delivers a properly certified survey meeting minimum state standards, the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes not and assessments that are due and payable as of after the Closing Date; and owing for the year of Closing and subsequent years; (iv) the parties-in-possession exception shall be deleted except as to the TenantsTenant, as tenants tenant only, as set forth on provided for in the Rent RollsLease;
(f) On the Closing Date, (i) the Property shall be in the same condition that it is in now, reasonable wear and tear excepted, and free from tenants and occupants, except for the Tenant pursuant to the Lease and except for construction, alteration and modifications to the Property as and to the extent permitted by the Lease; (ii) there shall be no judicial or administrative or condemnation proceeding pending or threatened concerning the Property that was not disclosed in writing to Purchaser before the commencement of the Restricted Period; (iii) the Property and the use and operation thereof by Seller and Tenant shall comply in all material respects with all Legal Requirements; (iv) the Lease shall be in full force and effect and free from default, except for any default that was disclosed in writing to Purchaser before the end of the Study Period; (v) there shall be no bankruptcy proceeding pending or threatened in writing with respect to the Tenant; and (vvi) the exclusion relating to creditor’s rights Property shall be deleted, if availablefree and clear of: (y) any management or leasing agreements and any other Contracts under which Purchaser has any obligations; and (z) any collective bargaining or employment agreements under which Purchaser has any obligations;
(dg) (Reserved);
(h) There shall be no Reciprocal Access Agreements encumbering the Property;
(i) Seller shall have provided use commercially reasonable efforts to obtain and provide to Purchaser a final, non-appealable certificate of occupancy for all of the Improvements and any certificates or approvals necessary to permit the use of any parking facilities at the Property (collectively, the "Certificate of Occupancy"), other than any Certificate of Occupancy that are occupied as of the Closing;
(e) Simultaneously with the consummation of the transactions contemplated by this Agreement, Purchaser (or its affiliate) shall have fully consummated the transactions contemplated by:
(i) that certain Purchase and Sale Agreement dated of even date herewith by and between Agora Suites, LLC, a Delaware limited liability company, as seller, and Purchaser, as purchaser, with respect Tenant is obligated to obtain pursuant to the property commonly known as The Lodge at Athens and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(ii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Columbia, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇Lease; and
(iiij) that certain Purchase Seller and Sale Agreement dated of even date herewith by and between Campus Lodge of Tampa, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tampa, Florida. In the event that any condition precedent in favor of Purchaser contained in this Section 6.1 or elsewhere in this Agreement is not satisfied as required herein, Purchaser Tenant shall have executed the right Required Amendment before the expiration of the Study Period and caused two (2) duly executed and delivered originals of the same to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement, or (ii) terminate this Agreement in which event the Deposit shall immediately be returned to Purchaser and Purchaser and Seller shall have no further obligations or liabilities hereunder other than Purchaser’s obligations under Section 5.1(b) and Section 5.3. Notwithstanding anything herein to the contrary, if such failure of a condition precedent is also a default by Seller pursuant to Section 10.2 hereof, then in addition delivered to Purchaser’s remedies set forth above in this Section 6.1, Purchaser may pursue any and all remedies available to Purchaser pursuant to Section 10.2 hereof.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Gsi Group Inc)
Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser as may be expressly set forth elsewhere in this Agreement, Purchaser’s obligations under this Agreement are expressly obligation to purchase the Property is subject to the timely fulfillment of the conditions set forth in this Section 6.1 5.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller; provided, however, that the Required Consents may only be waived by Purchaser subject to the provisions set forth in (d) below:
(a) Seller shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the Closing;.
(b) On Seller’s Representations shall be true and correct in all material respects as of the Closing Date, the representations of Seller set forth in as updated subject to Section 7.3 shall be true, complete and accurate in all material respects;6.5.
(c) On the Closing Date, good the Seller shall be the owner of fee simple and clear, record and marketable leasehold title to the Property shall be conveyed to Purchaser (as applicable), free and clear of all Liens, but subject only to the Permitted Exceptions, except that: (i) Exceptions and the exceptions for mechanic’s liens, unrecorded easements and sovereign lands shall be deleted; (ii) provided Purchaser delivers a properly certified survey meeting minimum state standards, the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes not due and payable as other provisions of the Closing and owing for the year of Closing and subsequent years; (iv) the parties-in-possession exception shall be deleted except as to the Tenants, as tenants only, as set forth on the Rent Rolls; and (v) the exclusion relating to creditor’s rights shall be deleted, if available;Section 3.2.
(d) Seller shall have provided received and delivered to Purchaser a final, non-appealable certificate copies of occupancy for all Required Consents in accordance with the provisions of Section 5.7. If Seller shall not have obtained and delivered to Purchaser copies of the Improvements Required Consents that are occupied as satisfy the requirements of Section 5.7 on or before the Closing;
(e) Simultaneously with 120th day after the consummation of the transactions contemplated by this Agreement, Purchaser (or its affiliate) shall have fully consummated the transactions contemplated byEffective Date:
(i) that certain Purchase and Sale Agreement dated of even date herewith either Purchaser or Seller shall have the right (in its sole discretion), exercisable by and between Agora Suiteswritten notice to the other party on or before such 120th day, LLCto extend the Closing Date for up to 60 additional days to provide additional time to obtain the Required Consents (such 120th day or, a Delaware limited liability companyif extended by 60 days as provided above, as sellersuch 180th day after the Effective Date, and Purchaser, as purchaserthe “Outside Consent Date”);
(ii) Purchaser shall have the right, with respect to the property commonly known Lender Consent, to waive the Lender Consent as The Lodge a condition to Closing by delivering written notice to Seller of such waiver, which written notice shall constitute an irrevocable election (the “Defeasance Election”) by Purchaser to (A) cause Seller to defease the Existing Loan in accordance with the Loan Documents and in compliance with the provisions of the Loan Documents, (B) waive any further right to assume the Existing Loan, (C) pay to Existing Lender, or reimburse Seller at Athens Closing for, all of the fees, costs and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇expenses required by the Loan Documents and/or Existing Lender in connection with the Defeasance Election, ▇▇▇▇▇▇whether or not received, ▇▇▇▇▇▇▇;
including, but not limited to, all processing fees, application fees, attorneys’ fees, recording fees, accounting fees, the cost of purchasing United States treasuries or other defeasance collateral, any incremental increase in Transfer Taxes caused by the fact that the Existing Loan is not being assumed, underwriting fees and rating agency fees, in addition to all Loan Transfer Fees that have been incurred in connection with the previously requested assumption of the Existing Loan and (iiD) that certain Purchase and Sale Agreement dated take such actions as it shall be required to take to complete the defeasance of even date herewith by and between Campus Lodge of Columbia, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect the Existing Loan on or prior to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇Outside Consent Date; and
(iii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Tampa, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaserPurchaser shall have the right, with respect to the property commonly known Ground Lessor Consent, to waive the Ground Lessor Consent as Campus Lodge Apartments a condition to Closing by written notice to Seller of such waiver (the “Ground Lessor Waiver Election”), provided that (A) Purchaser meets the Tangible Net Worth test referenced in Section 5.7(b) and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇otherwise delivers to Seller and/or Ground Lessor evidence sufficient to confirm that Purchaser satisfies the applicable requirements of the Ground Lease that permit the Ground Lease to be transferred without Ground Lessor Consent, Tampa(B) the Ground Lease Waiver Election shall be deemed to be a waiver by Purchaser of any obligation on the part of Seller to deliver to Purchaser the Ground Lease estoppel and shall relieve Seller of any and all obligations to make any representations, Florida. In warranties or indemnities with respect to the event Ground Lease other than the representation and warranty set forth in Section 6.2(bb), which shall continue in all events, and (C) Purchaser shall continue to be responsible for all Ground Lessor Consent Fees incurred in connection with the previously requested Ground Lessor Consent or satisfaction of the requirements necessary to relieve Seller’s obligation to obtain the Ground Lessor Consent.
(e) Seller shall have caused the Lobby Work, the Cafe Work, the Landlord’s Initial Work and the Other Seller Work to have been Substantially Completed; provided, however, that to the extent (if any) that any condition precedent remaining part of such work has not been Completed prior to Closing, Seller shall either (i) diligently perform such work to Completion as soon as practicable after the Closing in favor the manner applicable to Seller’s performance of the Seller’s Work after Closing under Article 8 (and the provisions of Article 8 shall apply thereto mutatis mutandis) or (ii) at Closing, credit the cost of such remaining work (in an amount mutually agreed by the parties) against the Purchase Price.
(f) Title Company shall be irrevocably obligated to issue an ALTA Owner’s Policy of Title Insurance to Purchaser in the form of the Pro Forma Policy.
(g) Title Company shall be irrevocably obligated to issue to Existing Lender such endorsements to its ALTA Loan Policy of Title Insurance as may be required by Existing Lender in connection with the Lender Consent.
(h) Purchaser shall have received confirmation from Escrow Agent that it continues to hold the Fund Guaranty and that Escrow Agent is unconditionally committed to deliver the Fund Guaranty to or at the direction of Purchaser contained in this Section 6.1 or elsewhere in at Closing. Purchaser acknowledges and agrees that its obligation to perform under this Agreement is not satisfied as required herein, Purchaser shall have the right contingent upon Purchaser’s ability to obtain any (i) waive such unsatisfied condition whereupon title shall close as provided governmental or quasi-governmental approval of changes or modifications in this Agreementuse or zoning, or (ii) terminate this Agreement in which event the Deposit shall immediately be returned modification of any existing land use restriction, or (iii) consents to Purchaser and Purchaser and Seller shall have no further obligations assignments of any service contracts or liabilities hereunder other agreements (other than Purchaser’s obligations under Section 5.1(bthe Required Consents) and Section 5.3. Notwithstanding anything herein to the contrary, if such failure of a condition precedent is also a default by Seller pursuant to Section 10.2 hereof, then in addition to Purchaser’s remedies set forth above in this Section 6.1, which Purchaser may pursue any and all remedies available to Purchaser pursuant to Section 10.2 hereofrequests.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Boston Properties Inc)
Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser set forth elsewhere in this Agreement, Purchaser’s obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller:.
(a) Seller shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the Closing;
(b) On the Closing Date, the representations of Seller set forth in Section 7.3 Representations shall be true, complete and accurate in all material respectsaccurate;
(c) Purchaser shall have received an estoppel certificate as provided for in the Leases (provided such estoppel is substantially similar to the form attached hereto as Exhibit B); from the Tenants dated no earlier than thirty (30) days prior to the Closing Date certifying the facts that are then true with respect to the applicable Lease including without limitation (if such be the case) that the Lease is in full force and effect; that the Tenant is in possession, that the Tenant has commenced the payment of Rent; and that there are no defenses or offsets to the Lease claimed by the Tenant. This condition shall not be satisfied if any one of the Tenants’ estoppel certificate discloses: (i) any default or claim of material default by Landlord or Tenant except as may otherwise disclosed in this Agreement; (ii) any amendment, modification or supplement to the Lease that was not provided to Purchaser before the commencement of the Restricted Period; or (iii) any other information that is inconsistent in any material respect with the Leases or related information as provided to Purchaser before the commencement of the Restricted Period. Seller shall use good faith, commercially reasonable efforts to obtain such estoppel certificate from the Tenants, and shall deliver a copy of such estoppels to Purchaser promptly upon receipt thereof by Seller. Seller shall allow Purchaser to review the estoppel certificates before presenting it to the Tenants;
(d) Each of the Leases has a self operating form of subordination, non-disturbance and attornment agreements. Seller shall deliver to Purchaser on a form pre-approved by Purchaser; a subordination, non-disturbance and attornment agreements (collectively, the “SNDA”), wherein each Tenant is affirming and subordinating the Leases to the loan of Purchaser’s mortgage lender, in a form that is recordable in the land records in each location where the individual properties that make up the Real Property arc located and in accordance with the contractual requirements imposed on each Tenant by their respective Leases and are reasonably acceptable to Purchaser and its lender. Seller shall use good faith to obtain such SNDA, and shall deliver the original of such SNDAs in recordable form promptly upon receipt thereof by Seller;
(e) On the Closing Date, good and clear, record and marketable title to the Real Property shall be conveyed to Purchaser by Limited Warranty Deed subject only to the Permitted ExceptionsExceptions and the Title Company shall issue to Purchaser an extended coverage owner’s title insurance policy (on the current ALTA Form B) in the amount of the Purchase Price, together with the Required Endorsements, insuring good and indefeasible fee simple title to each parcel of the Real Property in Purchaser, subject only to the Permitted Exceptions and the standard printed exceptions, except that: (i) the exceptions for mechanic’s liens, unrecorded easements and sovereign lands shall be deleted; (ii) provided Purchaser delivers a properly certified survey meeting minimum state standards, the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes not due and payable as of the Closing and owing for the year of Closing closing and subsequent years; (iv) the parties-in-possession exception shall be deleted except as to the Tenants, as tenants only, as set forth on provided for in the Rent RollsLease; and (v) the exclusion relating to creditor’s rights shall be deleted, if available;
(df) Seller shall have provided to Purchaser a finalOn the Closing Date, non-appealable certificate of occupancy for all of the Improvements that are occupied as of the Closing;
(e) Simultaneously with the consummation of the transactions contemplated by this Agreement, Purchaser (or its affiliate) shall have fully consummated the transactions contemplated by:
(i) the Real Property shall be in the same condition that certain Purchase and Sale Agreement dated they are in on the date of even date herewith by and between Agora Suites, LLC, a Delaware limited liability company, as seller, and Purchaser, as purchaser, with respect to the property commonly known as The Lodge at Athens and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(ii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Columbia, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and
(iii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Tampa, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tampa, Florida. In the event that any condition precedent in favor of Purchaser contained in this Section 6.1 or elsewhere in this Agreement is not satisfied except as required herein, Purchaser shall have the right to (i) waive such unsatisfied condition whereupon title shall close as otherwise provided in this Agreement, or reasonable wear and tear excepted, and free from tenants and occupants, except for the Tenants pursuant to the Leases; (ii) terminate this Agreement there shall be no judicial or administrative or condemnation proceeding pending or threatened concerning any part of the Real Property that was not disclosed in which event the Deposit shall immediately be returned writing to Purchaser before the commencement of the Restricted Period; (iii) the Real Property and the use and operation thereof shall comply in all material respects with all Legal Requirements; (iv) the Leases shall be in full force and effect and free from default, except for any default that was disclosed in writing to Purchaser and Seller before the end of the Study Period; (v) there shall have be no further obligations bankruptcy proceeding pending or liabilities hereunder other than Purchaser’s obligations under Section 5.1(b) and Section 5.3. Notwithstanding anything herein threatened in writing with respect to the contraryTenants; and (vi) the Real Property shall be free and clear of: (y) any management or leasing agreements and any other Contracts; and (z) any collective bargaining or employment agreements;
(g) On the Closing Date, if such failure of a condition precedent is also a default there shall be no Hazardous Materials (except the following which shall be “Hazardous Materials Permitted Exceptions”:
1. Fuel to be used by Seller pursuant to Section 10.2 hereofthe Standby Electrical Generator, then 2. Products and solutions used in addition to Purchaser’s remedies set forth above in this Section 6.1typical office equipment, Purchaser may pursue any and all remedies available to Purchaser pursuant to Section 10.2 hereof.and
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Sykes Enterprises Inc)
Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser set forth elsewhere in this Agreement, (a) Purchaser’s obligations under this Agreement are expressly obligation to purchase the Membership Interests is subject to the timely fulfillment of the conditions set forth in this Section 6.1 6.1(a) on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller:. If Purchaser proceeds with Closing, it will be deemed to have waived any such condition not satisfied prior to or contemporaneously with Closing.
(ai) Seller Seller, CBF or the Owner, as the case may be, shall have performed and complied in all material respects with all of the terms and covenants of this Agreement to be performed and complied with by Seller Seller, CBF or the Owner prior to or at the Closing; provided that this condition shall not be deemed to have failed where such failure would not materially and adversely affect Purchaser, in Purchaser’s reasonable judgment, if Seller, CBF and the Owner are otherwise ready, willing and able to proceed to closing in conformity with the terms and conditions of this Agreement and at Closing, Seller indemnifies, agrees to defend and hold harmless Purchaser and the other Purchaser Indemnitees from and against all Losses that Purchaser may suffer as a result of such failure of this condition precedent to be satisfied at Closing pursuant to a written instrument in form and substance reasonably satisfactory to Purchaser;
(bii) Subject to Section 7.4(a), on the Closing Date, the Seller Representations shall be true and complete in all material respects, subject to (1) changes that: (x) are caused by the acts or omissions of Purchaser, any other Purchaser Parties or Purchaser’s agents or contractors; or (y) are a result of compliance by Seller, CBF or the Owner with the terms of this Agreement; and (2) casualty or condemnation (which shall be governed by Sections 6.3 and 6.4, respectively);
(iii) On the Closing Date, the representations of Seller set forth in Section 7.3 shall be true, complete and accurate in all material respects;
(c1) On the Closing Date, good and clear, record and marketable title to the Property shall be conveyed to Purchaser subject only to the Permitted Exceptions and the Title Company shall be irrevocably committed to issue an owner’s policy(ies) of title insurance to Purchaser substantially in the form of the Purchaser’s Pro Forma Policy attached hereto (which Purchaser’s Pro Forma Policy shall reflect the Permitted Exceptions), except and (2) the Membership Interests shall be assigned to Purchaser free and clear of all Liens, Claims and Encumbrances, other than the Permitted Exceptions; provided that: , if on the Closing Date, this condition is not satisfied, Seller shall, by written notice to Purchaser, extend the Closing Date hereunder for a reasonable period of time, not to exceed forty-five (45) calendar days in order to cause this condition to be satisfied or otherwise resolved in a manner that is approved by Purchaser, which approval shall not be unreasonably withheld, conditioned or delayed.
(iv) No petition shall have been filed (and not been dismissed) under the Federal Bankruptcy Code or any similar state or federal law (i) by or against Seller, CBF or the exceptions for mechanic’s liens, unrecorded easements and sovereign lands shall be deleted; Owner or (ii) provided Purchaser delivers a properly certified survey meeting minimum state standardsby or against Developer if such petition would affect the ability of Seller, CBF or the survey exception shall be limited Owner to Permitted Exceptions; (iii) consummate the exception relating to ad valorem taxes shall relate only to taxes not due and payable as of the Closing and owing for the year of Closing and subsequent years; (iv) the parties-in-possession exception shall be deleted except as to the Tenants, as tenants only, as transaction set forth on the Rent Rolls; and in this Agreement.
(v) the exclusion relating to creditor’s rights The following conditions precedent shall be deleted, if available;satisfied with respect to the Owner and associated matters:
(dA) Seller shall have provided caused the Owner to Purchaser a final, non-appealable certificate of occupancy for all be formed pursuant to the Owner’s Organizational Documents and shall have caused 100% of the Improvements Membership Interests in the Owner to be issued to Seller;
(B) Seller and CBF shall have caused the Owner to be substituted for CBF as the purchaser in the Foreclosure Action and Seller shall have caused the Property to be conveyed to the Owner pursuant to the Foreclosure Action;
(C) The assets of the Owner at Closing shall consist solely of the Property, subject to changes in the Owner’s assets relating to or in connection with the performance of the obligations of Seller, the Owner and/or CBF under this Agreement.
(vi) Seller shall have obtained the Required Consents and Waivers; provided that, if on the Closing Date, this condition is not satisfied, Seller shall, by written notice to Purchaser, extend the Closing Date hereunder for a reasonable period of time, not to exceed forty-five (45) calendar days in order to cause this condition to be satisfied or otherwise resolved in a manner that is approved by Purchaser, which approval shall not be unreasonably withheld, conditioned or delayed.
(b) If any one or more of the conditions set forth in Section 6.1(a) above are occupied not satisfied as of the Closing;
date specified for Closing hereunder (e) Simultaneously with subject to Seller’s obligation to extend the consummation of the transactions contemplated by this Agreement, Purchaser (or its affiliate) shall have fully consummated the transactions contemplated by:
(i) that certain Purchase and Sale Agreement dated of even date herewith by and between Agora Suites, LLC, a Delaware limited liability companyClosing Date, as sellerprovided in Section 6.1(a) above), and Purchaser, as purchaser, with respect to the property commonly known as The Lodge at Athens and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(ii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Columbia, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and
(iii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Tampa, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tampa, Florida. In the event that any condition precedent in favor of Purchaser contained in this Section 6.1 or elsewhere in this Agreement is not satisfied as required herein, then Purchaser shall have the right option, in its sole discretion, exercised by written notice to Seller, either (i) to waive such unsatisfied condition whereupon title shall close as provided in this Agreement, or (ii) terminate and make full Closing under this Agreement in which event accordance with the Deposit shall immediately be returned to Purchaser terms and Purchaser and Seller shall have no further obligations or liabilities hereunder other than Purchaser’s obligations under Section 5.1(b) and Section 5.3. Notwithstanding anything herein to the contrary, if such failure of a condition precedent is also a default by Seller pursuant to Section 10.2 conditions hereof, then without any reduction or adjustment in addition to Purchaser’s remedies set forth above in this Section 6.1, Purchaser may pursue any and all remedies available to Purchaser pursuant to Section 10.2 hereof.the Purchase
Appears in 1 contract
Sources: Membership Interests Purchase and Sale Agreement (CBRE Realty Finance Inc)
Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser set forth elsewhere in this Agreement, Purchaser’s 's obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 6.1 4.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller:
(a) Seller shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the Closing;
(b) On the Closing Date, the representations of Seller set forth in Section 7.3 5.3 shall be true, complete and accurate in all material respectsaccurate; provided, however that the approval of the Town Meeting for the Seller shall have been obtained on or before Closing and shall no longer be a contingency;
(c) Seller shall have acquired or have the unconditional right to transfer title to the Property as described on Exhibit A; the Property and the easements that the Purchaser has reasonably determined are necessary or desirable for the Project have been given and recorded or can be recorded simultaneously with the Closing;
d) On the Closing Date, good and clear, record and marketable title to the Property shall be conveyed to Purchaser subject only to the Easements and those permitted title exceptions to which Purchaser has agreed in writing (such exceptions, together with the Exhibit B Easements referred to herein as the "Permitted Exceptions") and the title insurance company designated by Purchaser (the “Title Company”) shall issue to Purchaser an extended coverage owner's and lender's title insurance policy (on the current ALTA Form B) in the amount of the Purchase Price plus any secured debt on the Property, together with such endorsements to the title insurance policy as may be required by Purchaser or its investors or lenders, insuring good and indefeasible fee simple title to the Property in Purchaser, subject only to the Permitted Exceptions, easements that are necessary for the intended development and operation of the Property and the standard printed exceptions, except that: (i) the exceptions for mechanic’s 's liens, unrecorded easements and sovereign lands shall be deleted; (ii) provided Purchaser delivers a properly certified survey meeting minimum state standards, the survey exception shall be limited to Permitted Exceptions; (iii) the exception relating to ad valorem taxes shall relate only to taxes not due and payable as of the Closing and owing for the year of Closing and subsequent years; and (iv) the parties-in-possession exception shall be deleted except for the Permitted Exceptions;
e) On the Closing Date, (i) the Property shall be in the same condition that it is in now free from tenants and occupants; (ii) there shall be no judicial or administrative or condemnation proceeding pending or threatened concerning the Property that was not disclosed in writing to Purchaser before the commencement of the Study Period; (iii) the Property and the use and operation thereof shall comply in all material respects with all applicable legal requirements, except for any noncompliance that existed as to of the Tenants, as tenants only, as set forth on commencement of the Rent RollsStudy Period; and (viv) the exclusion relating to creditor’s rights Property shall be deleted, if availablefree and clear of: (y) any Contracts(other than this Agreement);
(df) Seller Between the commencement of the Study Period and the Closing Date, there shall not have occurred any spill or release of Hazardous Materials at the Property that have not been fully remediated at Seller’s expense in accordance with all applicable laws to Purchaser's reasonable satisfaction;
g) The Financing Contingencies shall have provided to Purchaser a final, non-appealable certificate of occupancy for all of been satisfied and the Improvements that are occupied commitments remain in full force and effect as of the ClosingClosing Date;
(eh) Simultaneously with the consummation of the transactions contemplated by this Agreement, Purchaser (or its affiliate) shall have fully consummated the transactions contemplated by:
(i) that certain Purchase and Sale Agreement dated of even date herewith by and between Agora Suites, LLC, a Delaware limited liability company, as seller, and Purchaser, as purchaser, with respect to the property commonly known as The Lodge at Athens and located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(ii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Columbia, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and
(iii) that certain Purchase and Sale Agreement dated of even date herewith by and between Campus Lodge of Tampa, Ltd., a Florida limited partnership, as seller, and Purchaser, as purchaser, with respect to the property commonly known as Campus Lodge Apartments and located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tampa, Florida. In the event that any condition precedent in favor of Purchaser contained in this Section 6.1 or elsewhere in this Agreement is not satisfied as required herein, Purchaser shall have the right to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement, or (ii) terminate this Agreement in which event the Deposit shall immediately be returned to Purchaser and Purchaser and Seller shall have no further obligations or liabilities hereunder other than Purchaser’s obligations under Section 5.1(b) entered into an agreement for Easements as necessary with respect to land owned by Seller and Section 5.3. Notwithstanding anything herein contiguous and adjacent to the contraryProperty and for the purposes of constructing parking and/or septic system to service and support the Property;
i) Purchaser shall have obtained all necessary permits, if such failure of licenses and approvals to build and operate a condition precedent is also a default multifamily affordable rental project with approximately 63 housing units from and any/all applicable governmental agencies;
j) Purchaser and Seller shall have entered into an Access Agreement respecting the Seller ‘s access to an adjacent parking lot on commercially reasonable terms, conditions and expenses on land owned by Seller as identified on Exhibit B (the "Access Agreement"); and The permits and approvals obtained by the Purchaser must be in full compliance with all Federal, state and local law and statutes or ordinances and in substance must be accepted by state, Federal and local subsidized financing sources as of the Closing Date. The Purchaser may terminate its Option or withdraw from Closing at any time that the restrictions do not meet all terms of Federal, state and local law or that the Purchaser is informed that such restrictions are not compliant with the terms of the proposed debt and equity financing, including without limitation, the language for the age 62 and older restriction for tenants as contemplated by Section 4.2(d) of this Agreement, and the Purchaser will be entitled to Terminate this Agreement pursuant to Section 10.2 hereof, then in addition to Purchaser’s remedies set forth above in this Section 6.1, Purchaser may pursue any and all remedies available to Purchaser pursuant to Section 10.2 hereof8.1.
Appears in 1 contract
Sources: Option to Purchase Agreement