Conditions Precedent Favoring Purchaser. Purchaser’s obligations under this Agreement are subject to the fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller or by Purchaser consummating the transactions described in this Agreement at the Closing. (a) Each 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 such Seller, as the case may be, prior to or at the Closing. (b) Subject to Section 7.3, on the Closing Date, the representations of the respective parties within the term Seller set forth in Section 7.2 (as the same have been updated pursuant to Section 7.3(c)) 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 Persons acting under Purchaser; 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 of the Property or the Purchaser’s ability to use the Property for its intended uses; and (2) casualty or condemnation (which shall be governed by Section 6.3). (c) Purchaser shall have received estoppel certificates from each of the following Tenants: Alexion Pharmaceuticals, Inc., Higher One, Inc. and CT Technology Development Corp. (each, a “Tenant Estoppel Certificate”) or shall have been provided with Seller’s Estoppel Certificates as permitted by the following sentence, in each case dated no earlier than the Effective Date (the “Estoppel Requirement”). If Tract K Seller is unable to obtain estoppel certificates from Higher One, Inc. and CT Technology Development Corp., in order to meet the Estoppel Requirement, Tract K Seller shall provide to the Purchaser substitute Seller’s Estoppel Certificates with respect to the Leases to Higher One, Inc. and CT Technology Development Corp., as the case may be. With respect to any Tenant for whom Tract K Seller delivers a Seller’s Estoppel Certificate, Tract K Seller’s statements therein shall be deemed to be representations and warranties as though set forth under and subject to Article 7 of this Agreement. Tract K Seller shall be entitled to continue to deal with such Tenant after Closing to attempt to obtain a Tenant Estoppel Certificate from such Tenant. If Purchaser subsequently receives a Tenant Estoppel Certificate from any Tenant for whom Tract K Seller has delivered a Seller’s Estoppel Certificate, Tract K Seller shall thereupon be released from liability with respect to the Seller’s Estoppel Certificate given with respect to such Tenant to the extent that the information contained in the Tenant Estoppel Certificate obtained from the Tenant is materially consistent with the information contained in Seller’s Estoppel Certificate. All Tenant Estoppel Certificates required hereby shall be substantially in the form of the Seller’s Estoppel Certificate or, if the applicable Lease provides a form tenant estoppel certificate that includes all of the material provisions of the Seller’s Estoppel Certificate, then in the form so provided in such Lease, as the case may be; but such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Tenant Estoppel Certificate (or Seller’s Estoppel Certificate) shall count towards the Estoppel Requirement if it (A) discloses any material default by Tract K Seller or the respective Tenant that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Leases as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value of not more than One Hundred Thousand Dollars ($100,000) and an aggregate value (with respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) of not more than Two Hundred Thousand Dollars ($200,000) and that would not entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value greater than One Hundred Thousand Dollars ($100,000) or an aggregate value (with respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) greater than Two Hundred Thousand Dollars ($200,000) or that would entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below). If any Tenant Estoppel Certificate or Seller’s Estoppel Certificate provided to Purchaser contains any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by the information contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an Update. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, an estoppel certificate that would otherwise satisfy the requirements for an acceptable estoppel certificate above, except for an alleged “landlord default” or any Tenant claims or disputes in excess of the foregoing amounts set forth in such certificate shall be deemed acceptable and shall count toward the Estoppel Requirement if (x) Tract K Seller cures such asserted landlord default at or prior to the Closing, or (y) Tract K Seller is disputing such landlord default in good faith, such alleged default reasonably could not result in a termination of the respective Lease, and Tract K Seller at its sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the cure of such landlord default post-Closing and pay Tenant all amounts due under the Lease or that otherwise may be due to the Tenant under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in landlord’s favor or such landlord default is cured, and if such dispute is not resolved in landlord’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure the landlord default and pay Tenant all amounts due under the Lease or that may otherwise be due to the Tenant under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to Tract K Seller. Purchaser shall reasonably cooperate with Tract K Seller’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed to Purchaser). (d) Purchaser shall have received from the landlord under each Ground Lease a “Ground Landlord’s Consent” substantially in the form of Schedule 6.1(d), which includes the “Ground Landlord Estoppel Provisions” therein, dated no earlier than the Effective Date. Such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Ground Landlord Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any material default by the tenant under such Ground Lease that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Ground Leases as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. Ground Landlord Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction or other matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000) and an aggregate value (with respect to all Ground Landlord Estoppel Provisions) of not more than Three Hundred Thousand Dollars ($300,000) and that would not entitle the landlord under the applicable Ground Lease to terminate such Ground Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but Ground Landlord Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction or other matters having an individual value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all Ground Landlord Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle the landlord under the applicable Ground Lease to terminate such Ground Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to all Ground Landlord Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below). If the Ground Landlord Estoppel Provisions provided to Purchaser contain any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by the information contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an Update. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, a Ground Landlord’s Consent that would otherwise satisfy the requirements for an acceptable Ground Landlord’s Consent above, except for an alleged tenant default under the Ground Lease or any landlord claim or disputes under such Ground Lease in excess of the foregoing amounts set forth in such Certificate shall be deemed acceptable and shall satisfy this condition to Closing if (x) the tenant under such Ground Lease cures such asserted tenant default at or prior to the Closing, or (y) the tenant under such Ground Lease is disputing such tenant default in good faith, such alleged default reasonably could not result in a termination of such Ground Lease, and the tenant under such Ground Lease at its sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the cure of such tenant default post-Closing and pay the landlord under such Ground Lease all amounts due under such Ground Lease or that otherwise may be due to the landlord under such Ground Lease under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in favor of the tenant under such Ground Lease, or such tenant default is cured, and if such dispute is not resolved in tenant’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure the applicable default and pay the landlord under such Ground Lease all amounts due under such Ground Lease or that may otherwise be due to such landlord under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to the applicable Seller entity. Purchaser shall reasonably cooperate with any such Seller entity’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed to Purchaser). (e) Purchaser shall have received from each party to the TDA (other than any Seller) (each such party being a “TDA Party”) a “TDA Consent” substantially in the form of Schedule 6.1(e), which includes the “TDA Estoppel Provisions” therein, dated no earlier than the Effective Date. The TDA Estoppel Provisions required hereby shall be substantially in the form set forth in the TDA Consent; but such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no TDA Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any material default by any Person under the TDA that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the TDA as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. TDA Estoppel Provisions that set forth claims, disputes or defaults with respect to construction, remediation or other matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000) and an aggregate value (with respect to all TDA Estoppel Provisions) of not more than Three Hundred Thousand Dollars ($300,000) and that would not entitle a TDA Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificate shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but TDA Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction, remediation or other matters having an individual value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all TDA Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle a TDA Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to the TDA Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below)
Appears in 1 contract
Sources: Purchase and Sale Agreement (BioMed Realty Trust 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 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 or by Purchaser consummating the transactions described in this Agreement at the ClosingSeller.
(ai) Each 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 such Seller, as the case may be, Seller prior to or at the Closing.
(bii) Subject to Section 7.3, on As of the Closing Date, the representations of the respective parties within the term Seller set forth in Section 7.2 (as the same have been updated pursuant to Section 7.3(c)) 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 Persons acting under Purchaserits 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 or the Purchaser’s ability to use the Property for its intended usesProperty; and (2) casualty or condemnation (which shall be governed by Section 6.36.3 and Section 6.4, respectively).
(ciii) Purchaser On the Closing Date, title to the Property shall have received estoppel certificates from each be conveyed to Purchaser, subject only to the Permitted Exceptions.
(iv) The Title Company shall be unconditionally willing and able to issue the Owner’s Title Insurance Policy.
(v) As of the following Tenants: Alexion PharmaceuticalsClosing Date, Inc.there shall exist no actions, Higher Onesuits, Inc. arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings pending against the Seller that would materially and CT Technology Development Corp. (each, a “Tenant Estoppel Certificate”) adversely affect the operation or shall have been provided with Seller’s Estoppel Certificates as permitted by the following sentence, in each case dated no earlier than the Effective Date (the “Estoppel Requirement”). If Tract K Seller is unable to obtain estoppel certificates from Higher One, Inc. and CT Technology Development Corp., in order to meet the Estoppel Requirement, Tract K Seller shall provide to the Purchaser substitute Seller’s Estoppel Certificates with respect to the Leases to Higher One, Inc. and CT Technology Development Corp., as the case may be. With respect to any Tenant for whom Tract K Seller delivers a Seller’s Estoppel Certificate, Tract K Seller’s statements therein shall be deemed to be representations and warranties as though set forth under and subject to Article 7 of this Agreement. Tract K Seller shall be entitled to continue to deal with such Tenant after Closing to attempt to obtain a Tenant Estoppel Certificate from such Tenant. If Purchaser subsequently receives a Tenant Estoppel Certificate from any Tenant for whom Tract K Seller has delivered a Seller’s Estoppel Certificate, Tract K Seller shall thereupon be released from liability with respect to the Seller’s Estoppel Certificate given with respect to such Tenant to the extent that the information contained in the Tenant Estoppel Certificate obtained from the Tenant is materially consistent with the information contained in Seller’s Estoppel Certificate. All Tenant Estoppel Certificates required hereby shall be substantially in the form of the Seller’s Estoppel Certificate or, if the applicable Lease provides a form tenant estoppel certificate that includes all of the material provisions of the Seller’s Estoppel Certificate, then in the form so provided in such Lease, as the case may be; but such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Tenant Estoppel Certificate (or Seller’s Estoppel Certificate) shall count towards the Estoppel Requirement if it (A) discloses any material default by Tract K Seller or the respective Tenant that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Leases as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following or the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect ability to construction or other matters having an individual value of not more than One Hundred Thousand Dollars perform its obligations under this Agreement.
($100,000b) and an aggregate value (with respect Subject to all Tenant Estoppel Certificates and SellerPurchaser’s Estoppel Certificates) of not more than Two Hundred Thousand Dollars ($200,000) and that would not entitle the Tenant under the applicable Lease right to terminate such Lease pursuant this Agreement prior to the terms thereof as expiration of the date Study Period in accordance with the terms of such Certificates shall conclusively be deemed not to have a material adverse effect on Section 5.2, and the value satisfaction of the Property following the Closing; but Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value greater than One Hundred Thousand Dollars ($100,000) or an aggregate value (with respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) greater than Two Hundred Thousand Dollars ($200,000) or that would entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below). If any Tenant Estoppel Certificate or Seller’s Estoppel Certificate provided to Purchaser contains any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by the information contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an Update. Notwithstanding anything herein to the contrary but subject to the provisions closing conditions set forth in Section 6.1(g6.1(a) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, an estoppel certificate that would otherwise satisfy the requirements for an acceptable estoppel certificate above, except for an alleged “landlord default” Purchaser acknowledges and agrees that its obligation to perform under this Agreement is not contingent upon Purchaser’s ability to obtain any (i) governmental or any Tenant claims quasi-governmental approval of changes or disputes modifications in excess of the foregoing amounts set forth in such certificate shall be deemed acceptable and shall count toward the Estoppel Requirement if (x) Tract K Seller cures such asserted landlord default at use or prior to the Closingzoning, or (yii) Tract K Seller is disputing such landlord default in good faith, such alleged default reasonably could not result in a termination modification of the respective Lease, and Tract K Seller at its sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the cure of such landlord default post-Closing and pay Tenant all amounts due under the Lease or that otherwise may be due to the Tenant under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in landlord’s favor or such landlord default is cured, and if such dispute is not resolved in landlord’s favor within ninety (90) days after the Closing, Purchaser may any existing land use and apply so much of the escrow funds as shall be necessary to cure the landlord default and pay Tenant all amounts due under the Lease or that may otherwise be due to the Tenant under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to Tract K Seller. Purchaser shall reasonably cooperate with Tract K Seller’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed to Purchaser).
(d) Purchaser shall have received from the landlord under each Ground Lease a “Ground Landlord’s Consent” substantially in the form of Schedule 6.1(d), which includes the “Ground Landlord Estoppel Provisions” therein, dated no earlier than the Effective Date. Such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Ground Landlord Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any material default by the tenant under such Ground Lease that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Ground Leases as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. Ground Landlord Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction or other matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000) and an aggregate value (with respect to all Ground Landlord Estoppel Provisions) of not more than Three Hundred Thousand Dollars ($300,000) and that would not entitle the landlord under the applicable Ground Lease to terminate such Ground Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but Ground Landlord Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction or other matters having an individual value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all Ground Landlord Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle the landlord under the applicable Ground Lease to terminate such Ground Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to all Ground Landlord Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below). If the Ground Landlord Estoppel Provisions provided to Purchaser contain any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by the information contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an Update. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, a Ground Landlord’s Consent that would otherwise satisfy the requirements for an acceptable Ground Landlord’s Consent above, except for an alleged tenant default under the Ground Lease or any landlord claim or disputes under such Ground Lease in excess of the foregoing amounts set forth in such Certificate shall be deemed acceptable and shall satisfy this condition to Closing if (x) the tenant under such Ground Lease cures such asserted tenant default at or prior to the Closingrestriction, or (yiii) the tenant under such Ground Lease is disputing such tenant default in good faithconsents to assignments of any service contracts or other agreements which Purchaser requests, such alleged default reasonably could not result in a termination of such Ground Lease, and the tenant under such Ground Lease at its sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the cure of such tenant default post-Closing and pay the landlord under such Ground Lease all amounts due under such Ground Lease or that otherwise may be due (iv) endorsements to the landlord under such Ground Lease under applicable lawOwner’s Title Insurance Policy, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in favor or (v) financing for acquisition of the tenant under such Ground Lease, or such tenant default is cured, and if such dispute is not resolved in tenant’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure the applicable default and pay the landlord under such Ground Lease all amounts due under such Ground Lease or that may otherwise be due to such landlord under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to the applicable Seller entity. Purchaser shall reasonably cooperate with any such Seller entity’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed to Purchaser)Property.
(e) Purchaser shall have received from each party to the TDA (other than any Seller) (each such party being a “TDA Party”) a “TDA Consent” substantially in the form of Schedule 6.1(e), which includes the “TDA Estoppel Provisions” therein, dated no earlier than the Effective Date. The TDA Estoppel Provisions required hereby shall be substantially in the form set forth in the TDA Consent; but such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no TDA Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any material default by any Person under the TDA that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the TDA as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. TDA Estoppel Provisions that set forth claims, disputes or defaults with respect to construction, remediation or other matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000) and an aggregate value (with respect to all TDA Estoppel Provisions) of not more than Three Hundred Thousand Dollars ($300,000) and that would not entitle a TDA Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificate shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but TDA Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction, remediation or other matters having an individual value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all TDA Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle a TDA Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to the TDA Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below)
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Lexicon Pharmaceuticals, Inc.)
Conditions Precedent Favoring Purchaser. Purchaser’s obligations under this Agreement are subject to the fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller or by Purchaser consummating the transactions described in this Agreement at the Closing.
(a) Each 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 such Seller, as the case may be, prior to or at the Closing.
(b) Subject to Section 7.3, on the Closing Date, the representations of the respective parties within the term Seller set forth in Section 7.2 (as the same have been updated pursuant to Section 7.3(c)) 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 Persons acting under Purchaser; 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 of the Property or the Purchaser’s ability to use the Property for its intended uses; and (2) casualty or condemnation (which shall be governed by Section 6.3).
(c) Purchaser shall have received estoppel certificates from each of the following Tenants: Alexion Pharmaceuticals, Inc., Higher One, Inc. and CT Technology Development Corp. (each, a “Tenant Estoppel Certificate”) from the following Tenants of the R▇▇▇▇▇ Street Real Property: Schering Plough Research Institute and Microbia, Inc. or shall have been provided with a Seller’s Estoppel Certificates Certificate as permitted by the following sentence, in each case dated no earlier than the Effective Date (the “Estoppel Requirement”). If Tract K Seller R▇▇▇▇▇ Street, LLC is unable to obtain an estoppel certificates certificate from Higher OneMicrobia, Inc. and CT Technology Development Corp.Inc., in order to meet the Estoppel Requirement, Tract K Seller R▇▇▇▇▇ Street, LLC shall provide to the Purchaser substitute a Seller’s Estoppel Certificates Certificate with respect to the Leases to Higher One, Inc. and CT Technology Development Corp., as the case may besuch Lease. With respect to any Tenant for whom Tract K Seller R▇▇▇▇▇ Street, LLC delivers a Seller’s Estoppel Certificate, Tract K SellerR▇▇▇▇▇ Street, LLC’s statements therein shall be deemed to be representations and warranties as though set forth under and subject to Article 7 of this Agreement. Tract K Seller R▇▇▇▇▇ Street, LLC shall be entitled to continue to deal with such Tenant after Closing to attempt to obtain a Tenant Estoppel Certificate from such Tenant. If Purchaser subsequently receives a Tenant Estoppel Certificate from any Tenant for whom Tract K Seller R▇▇▇▇▇ Street, LLC has delivered a Seller’s Estoppel Certificate, Tract K Seller R▇▇▇▇▇ Street, LLC shall thereupon be released from liability with respect to the Seller’s Estoppel Certificate given with respect to such Tenant to the extent that the information contained in the Tenant Estoppel Certificate obtained from the Tenant is materially consistent with the information contained in Seller’s Estoppel Certificate. All Tenant Estoppel Certificates required hereby shall be substantially in the form of the Seller’s Estoppel Certificate or, if the applicable Lease provides a form tenant estoppel certificate that includes all of the material provisions of the Seller’s Estoppel Certificate, then in the form so provided in such Lease, as the case may be; but such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g6.1(k) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Tenant Estoppel Certificate (or Seller’s Estoppel CertificateCertificate delivered hereunder) shall count towards the Estoppel Requirement if it (A) discloses any material default by Tract K Seller R▇▇▇▇▇ Street, LLC or the respective Tenant that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Leases as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the R▇▇▇▇▇ Street Real Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value of not more than One Five Hundred Thousand Dollars ($100,000500,000) and an aggregate value (with respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) of not more than Two Hundred Thousand One Million Dollars ($200,0001,000,000) and that would not entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed not to have a material adverse effect on the value of the R▇▇▇▇▇ Street Real Property following the Closing; but Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value greater than One Five Hundred Thousand Dollars ($100,000500,000) or an aggregate value (with respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) greater than Two Hundred Thousand One Million Dollars ($200,0001,000,000) or that would entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the R▇▇▇▇▇ Street Real Property following the Closing. The foregoing deemed material adverse effect shall apply to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g6.1(k) below). If any Tenant Estoppel Certificate or Seller’s Estoppel Certificate provided to Purchaser prior to 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 Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an Update. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(g6.1(k) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, an estoppel certificate that would otherwise satisfy the requirements for an acceptable estoppel certificate above, except for an alleged “landlord default” or any Tenant claims or disputes in excess of the foregoing amounts set forth in such certificate shall be deemed acceptable and shall count toward the Estoppel Requirement if (x) Tract K Seller R▇▇▇▇▇ Street, LLC cures such asserted landlord default at or prior to the Closing, or (y) Tract K Seller R▇▇▇▇▇ Street, LLC is disputing such landlord default in good faith, such alleged default reasonably could not result in a termination of the respective Lease, and Tract K Seller R▇▇▇▇▇ Street, LLC at its sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the cure of such landlord default post-Closing and pay Tenant all amounts due under the Lease or that otherwise may be due to the Tenant under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in landlord’s favor or such landlord default is cured, and if such dispute is not resolved in landlord’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure the landlord applicable default and pay Tenant all amounts due under the Lease or that may otherwise be due to the Tenant such person under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to Tract K SellerR▇▇▇▇▇ Street, LLC. Purchaser shall reasonably cooperate with Tract K SellerR▇▇▇▇▇ Street, LLC’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed to Purchaser).
(d) Purchaser shall have received a statement from the landlord under each Ground Lease a “Ground Landlord’s Consent” substantially in the form of Schedule 6.1(d), which includes the “Ground Landlord Estoppel Provisions” therein, Contractor dated no earlier than the Effective DateDate substantially in the form attached hereto as Schedule 6.1(d) (the “Contractor’s Statement”) setting forth therein the Remaining GMP Amount with respect to the Linbeck Contract (as such terms are defined in Schedule 6.1(d)). Such form may contain modifications and additions so long as it in substance sets forth the Remaining GMP Amount, and the other material provisions of the form attached hereto. Except as provided in Section 6.1(g6.1(k) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Ground Landlord Estoppel Provisions Contractor’s Statement shall satisfy this condition to Closing if the same it (A) discloses any material default by R▇▇▇▇▇ Street, LLC or the tenant under such Ground Lease Contractor that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Linbeck Contract as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth Disputed Contractor Claims (including Disputed Contractor Claims for an increase in the contract amount or an extension of any deadline) not disclosed to Purchaser before the commencement of the Restricted Period that would either (i) have a material adverse effect on the value of the R▇▇▇▇▇ Street Real Property with an aggregate value of more than One Million Dollars ($1,000,000) or (ii) increase the Purchaser’s cost to complete the Major Line Item Project after the Closing by more than One Million Dollars ($1,000,000) or (iii) cause the Contract Substantial Completion Date to occur more than one (1) month past August 31, 2007 or (D) discloses any information that would make any Seller Representation untrue in any material respect.
(e) Purchaser shall have received a statement from the Architect dated no earlier than the Effective Date substantially in the form attached hereto as Schedule 6.1(e) (the “Architect’s Statement”) setting forth therein the Remaining Contract Amount with respect to the Arrowstreet Agreement (as such terms are defined in Schedule 6.1(e)). Such form may contain modifications and additions so long as it in substance sets forth the Remaining Contract Amount, and the other material provisions of the form attached hereto. Except as provided in Section 6.1(k) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Architect’s Statement shall satisfy this condition if it (A) discloses any material default by R▇▇▇▇▇ Street, LLC or the Architect that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Arrowstreet Agreement as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth Disputed Architect Claims not disclosed to Purchaser before the commencement of the Restricted Period that would either (i) have a material adverse effect on the value of the R▇▇▇▇▇ Street Real Property with an aggregate value of more than One Million Dollars ($1,000,000) or (ii) increase the Purchaser’s cost to complete the Major Line Item Project after the Closing by more than One Million Dollars ($1,000,000) or (iii) delay the completion of the Major Line Item Project by more than three (3) months or (D) discloses any information that would make any Seller Representation untrue in any material respect.
(f) Purchaser shall have received from the R▇▇▇▇▇ Street Ground Leases Landlord the “R▇▇▇▇▇ Street Ground Landlord’s Consent to Assignment” substantially in the form of Schedule 6.1(f), which includes therein the “R▇▇▇▇▇ Street Ground Landlord Estoppel Provisions”, dated no earlier than the Effective Date. The R▇▇▇▇▇ Street Ground Landlord Estoppel Provisions required hereby shall be substantially in the form set forth in the R▇▇▇▇▇ Street Ground Landlord’s Consent to Assignment; but such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(k) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no R▇▇▇▇▇ Street Ground Landlord Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any material default by R▇▇▇▇▇ Street, LLC that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the R▇▇▇▇▇ Street Ground Lease as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the R▇▇▇▇▇ Street Real Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. R▇▇▇▇▇ Street Ground Landlord Estoppel Provisions provisions that set forth other claims, disputes or tenant defaults by R▇▇▇▇▇ Street, LLC not disclosed to Purchaser with respect to construction or other matters having an individual a value of not more than One Hundred Fifty Thousand Dollars ($150,000) and an aggregate value (with respect to all Ground Landlord Estoppel Provisions) of not more than Three Five Hundred Thousand Dollars ($300,000500,000) and that would not entitle the landlord under the applicable R▇▇▇▇▇ Street Ground Lease to terminate such the R▇▇▇▇▇ Street Ground Lease pursuant to the terms thereof as of the date of such Certificates Certificate shall conclusively be deemed not to have a material adverse effect on the value of the R▇▇▇▇▇ Street Property following the Closing; but R▇▇▇▇▇ Street Ground Landlord Estoppel Provisions that set forth other claims, disputes or tenant defaults by R▇▇▇▇▇ Street, LLC not disclosed to Purchaser with respect to construction or other matters having an individual a value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all Ground Landlord Estoppel Provisions) greater than Three Five Hundred Thousand Dollars ($300,000500,000) or that would entitle the landlord under the applicable R▇▇▇▇▇ Street Ground Lease to terminate such the R▇▇▇▇▇ Street Ground Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the R▇▇▇▇▇ Street Real Property following the Closing. The foregoing deemed material adverse effect shall apply to all the R▇▇▇▇▇ Street Ground Lease Landlord Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g6.1(k) below). If any R▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇’s Consent to Assignment (including the R▇▇▇▇▇ Street Ground Landlord Estoppel Provisions contained therein) provided to Purchaser contain contains any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by the information contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an Update. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(g6.1(k) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, a Ground Landlord’s Consent an estoppel certificate that would otherwise satisfy the requirements for an acceptable Ground Landlord’s Consent estoppel certificate above, except for an alleged tenant default under the R▇▇▇▇▇ Street Ground Lease or any landlord claim or disputes under such R▇▇▇▇▇ Street Ground Lease in excess of the foregoing amounts set forth in such Certificate certificate shall be deemed acceptable and shall satisfy this condition to Closing if (x) the tenant under such Ground Lease R▇▇▇▇▇ Street, LLC cures such asserted tenant default at or prior to the Closing, or (y) the tenant under such Ground Lease R▇▇▇▇▇ Street, LLC is disputing such tenant default in good faith, such alleged undisclosed default reasonably could not result in a termination of such the R▇▇▇▇▇ Street Ground Lease, and the tenant under such Ground Lease R▇▇▇▇▇ Street, LLC at its sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the cure of such tenant default post-Closing and pay the landlord under such Ground Lease all amounts due under such Ground Lease or that otherwise may be due to the landlord under such Ground Lease under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in favor of the tenant under such Ground Lease, or such tenant default is cured, and if such dispute is not resolved in tenant’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure the applicable default and pay the landlord under such Ground Lease all amounts due under such Ground Lease or that may otherwise be due to such landlord under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to the applicable Seller entity. Purchaser shall reasonably cooperate with any such Seller entity’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed to Purchaser).
(e) Purchaser shall have received from each party to the TDA (other than any Seller) (each such party being a “TDA Party”) a “TDA Consent” substantially in the form of Schedule 6.1(e), which includes the “TDA Estoppel Provisions” therein, dated no earlier than the Effective Date. The TDA Estoppel Provisions required hereby shall be substantially in the form set forth in the TDA Consent; but such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no TDA Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any material default by any Person under the TDA that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the TDA as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. TDA Estoppel Provisions that set forth claims, disputes or defaults with respect to construction, remediation or other matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000) and an aggregate value (with respect to all TDA Estoppel Provisions) of not more than Three Hundred Thousand Dollars ($300,000) and that would not entitle a TDA Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificate shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but TDA Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction, remediation or other matters having an individual value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all TDA Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle a TDA Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to the TDA Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below)R▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ all
Appears in 1 contract
Sources: Purchase and Sale Agreement (BioMed Realty Trust 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 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 or by Purchaser consummating the transactions described in this Agreement at the ClosingSeller.
(ai) Each 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 such Seller, as the case may be, Seller prior to or at the Closing.
(bii) Subject to Section 7.3, on On the Closing Date, the representations of the respective parties within the term Seller set forth in Section 7.2 (as the same have been updated pursuant to Section 7.3(c)) 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 Persons acting under Purchaserits 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 or the Purchaser’s ability to use the Property for its intended usesProperty; and (2) casualty or condemnation (which shall be governed by Section 6.36.3 and Section 6.4, respectively).
(ciii) Purchaser shall have received estoppel certificates from each of On the following Tenants: Alexion PharmaceuticalsClosing Date, Inc., Higher One, Inc. and CT Technology Development Corp. (each, a “Tenant Estoppel Certificate”) or shall have been provided with Seller’s Estoppel Certificates as permitted by the following sentence, in each case dated no earlier than the Effective Date (the “Estoppel Requirement”). If Tract K Seller is unable to obtain estoppel certificates from Higher One, Inc. and CT Technology Development Corp., in order to meet the Estoppel Requirement, Tract K Seller shall provide title to the Purchaser substitute Seller’s Estoppel Certificates with respect Property shall be conveyed to Purchaser, subject only to the Leases to Higher OnePermitted Exceptions.
(iv) There shall exist no actions, Inc. suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings pending against the Seller that would materially and CT Technology Development Corp., as adversely affect the case may be. With respect to any Tenant for whom Tract K Seller delivers a Seller’s Estoppel Certificate, Tract K Seller’s statements therein shall be deemed to be representations and warranties as though set forth under and subject to Article 7 of this Agreement. Tract K Seller shall be entitled to continue to deal with such Tenant after Closing to attempt to obtain a Tenant Estoppel Certificate from such Tenant. If Purchaser subsequently receives a Tenant Estoppel Certificate from any Tenant for whom Tract K Seller has delivered a Seller’s Estoppel Certificate, Tract K Seller shall thereupon be released from liability with respect to the Seller’s Estoppel Certificate given with respect to such Tenant to the extent that the information contained in the Tenant Estoppel Certificate obtained from the Tenant is materially consistent with the information contained in Seller’s Estoppel Certificate. All Tenant Estoppel Certificates required hereby shall be substantially in the form of the Seller’s Estoppel Certificate or, if the applicable Lease provides a form tenant estoppel certificate that includes all of the material provisions of the Seller’s Estoppel Certificate, then in the form so provided in such Lease, as the case may be; but such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Tenant Estoppel Certificate (operation or Seller’s Estoppel Certificate) shall count towards the Estoppel Requirement if it (A) discloses any material default by Tract K Seller or the respective Tenant that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Leases as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following or the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect ability to construction or other matters having an individual value of not more than One Hundred Thousand Dollars perform its obligations under this Agreement.
($100,000b) and an aggregate value (with respect Subject to all Tenant Estoppel Certificates and SellerPurchaser’s Estoppel Certificates) of not more than Two Hundred Thousand Dollars ($200,000) and that would not entitle the Tenant under the applicable Lease right to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value greater than One Hundred Thousand Dollars ($100,000) or an aggregate value (with respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) greater than Two Hundred Thousand Dollars ($200,000) or that would entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below). If any Tenant Estoppel Certificate or Seller’s Estoppel Certificate provided to Purchaser contains any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by the information contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an Update. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, an estoppel certificate that would otherwise satisfy the requirements for an acceptable estoppel certificate above, except for an alleged “landlord default” or any Tenant claims or disputes in excess of the foregoing amounts set forth in such certificate shall be deemed acceptable and shall count toward the Estoppel Requirement if (x) Tract K Seller cures such asserted landlord default at or this Agreement prior to the Closingexpiration 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 contingent upon Purchaser’s ability to obtain any (i) governmental or quasi-governmental approval of changes or modifications in use or zoning, or (yii) Tract K Seller is disputing such landlord default in good faith, such alleged default reasonably could not result in a termination modification of the respective Lease, and Tract K Seller at its sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the cure of such landlord default post-Closing and pay Tenant all amounts due under the Lease or that otherwise may be due to the Tenant under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in landlord’s favor or such landlord default is cured, and if such dispute is not resolved in landlord’s favor within ninety (90) days after the Closing, Purchaser may any existing land use and apply so much of the escrow funds as shall be necessary to cure the landlord default and pay Tenant all amounts due under the Lease or that may otherwise be due to the Tenant under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to Tract K Seller. Purchaser shall reasonably cooperate with Tract K Seller’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed to Purchaser).
(d) Purchaser shall have received from the landlord under each Ground Lease a “Ground Landlord’s Consent” substantially in the form of Schedule 6.1(d), which includes the “Ground Landlord Estoppel Provisions” therein, dated no earlier than the Effective Date. Such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Ground Landlord Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any material default by the tenant under such Ground Lease that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Ground Leases as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. Ground Landlord Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction or other matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000) and an aggregate value (with respect to all Ground Landlord Estoppel Provisions) of not more than Three Hundred Thousand Dollars ($300,000) and that would not entitle the landlord under the applicable Ground Lease to terminate such Ground Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but Ground Landlord Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction or other matters having an individual value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all Ground Landlord Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle the landlord under the applicable Ground Lease to terminate such Ground Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to all Ground Landlord Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below). If the Ground Landlord Estoppel Provisions provided to Purchaser contain any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by the information contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an Update. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, a Ground Landlord’s Consent that would otherwise satisfy the requirements for an acceptable Ground Landlord’s Consent above, except for an alleged tenant default under the Ground Lease or any landlord claim or disputes under such Ground Lease in excess of the foregoing amounts set forth in such Certificate shall be deemed acceptable and shall satisfy this condition to Closing if (x) the tenant under such Ground Lease cures such asserted tenant default at or prior to the Closingrestriction, or (yiii) the tenant under such Ground Lease is disputing such tenant default in good faithconsents to assignments of any service contracts or other agreements which Purchaser requests, such alleged default reasonably could not result in a termination of such Ground Lease, and the tenant under such Ground Lease at its sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the cure of such tenant default post-Closing and pay the landlord under such Ground Lease all amounts due under such Ground Lease or that otherwise may be due (iv) endorsements to the landlord under such Ground Lease under applicable lawOwner’s Title Insurance Policy, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in favor or (v) financing for acquisition of the tenant under such Ground Lease, or such tenant default is cured, and if such dispute is not resolved in tenant’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure the applicable default and pay the landlord under such Ground Lease all amounts due under such Ground Lease or that may otherwise be due to such landlord under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to the applicable Seller entity. Purchaser shall reasonably cooperate with any such Seller entity’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed to Purchaser)Property.
(e) Purchaser shall have received from each party to the TDA (other than any Seller) (each such party being a “TDA Party”) a “TDA Consent” substantially in the form of Schedule 6.1(e), which includes the “TDA Estoppel Provisions” therein, dated no earlier than the Effective Date. The TDA Estoppel Provisions required hereby shall be substantially in the form set forth in the TDA Consent; but such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no TDA Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any material default by any Person under the TDA that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the TDA as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. TDA Estoppel Provisions that set forth claims, disputes or defaults with respect to construction, remediation or other matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000) and an aggregate value (with respect to all TDA Estoppel Provisions) of not more than Three Hundred Thousand Dollars ($300,000) and that would not entitle a TDA Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificate shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but TDA Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction, remediation or other matters having an individual value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all TDA Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle a TDA Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to the TDA Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below)
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 as may be expressly set forth elsewhere in this Agreement, Purchaser’s obligations under this Agreement are 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 or by Purchaser consummating the transactions described in this Agreement at the ClosingSeller’s Representative.
(a) Each Seller shall have delivered, or caused to be delivered, all of the items required by Section 8.2 hereof.
(b) 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 such Seller, as the case may be, Seller prior to or at the Closing.
(bc) Subject to Section 7.3, on On the Closing Date, the representations of the respective parties within the term Seller set forth in Section 7.2 (as the same have been updated pursuant to Section 7.3(c)) shall be true, complete and accurate in all material respects, subject to: (1i) changes that: (y) that are caused by the negligent acts or omissions or willful misconduct of Purchaser or Persons acting under Purchaser; its agents 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 notaffiliates or their officers, individually agents or in the aggregate, have a material adverse effect on the value of the Property or the Purchaser’s ability to use the Property for its intended usesemployees; and (2ii) casualty or condemnation (which shall be governed by Section 6.3).
(c) Purchaser shall have received estoppel certificates from each of the following Tenants: Alexion PharmaceuticalsSections 6.3 and 6.4, Inc., Higher One, Inc. and CT Technology Development Corp. (each, a “Tenant Estoppel Certificate”) or shall have been provided with Seller’s Estoppel Certificates as permitted by the following sentence, in each case dated no earlier than the Effective Date (the “Estoppel Requirement”). If Tract K Seller is unable to obtain estoppel certificates from Higher One, Inc. and CT Technology Development Corp., in order to meet the Estoppel Requirement, Tract K Seller shall provide to the Purchaser substitute Seller’s Estoppel Certificates with respect to the Leases to Higher One, Inc. and CT Technology Development Corp., as the case may be. With respect to any Tenant for whom Tract K Seller delivers a Seller’s Estoppel Certificate, Tract K Seller’s statements therein shall be deemed to be representations and warranties as though set forth under and subject to Article 7 of this Agreement. Tract K Seller shall be entitled to continue to deal with such Tenant after Closing to attempt to obtain a Tenant Estoppel Certificate from such Tenant. If Purchaser subsequently receives a Tenant Estoppel Certificate from any Tenant for whom Tract K Seller has delivered a Seller’s Estoppel Certificate, Tract K Seller shall thereupon be released from liability with respect to the Seller’s Estoppel Certificate given with respect to such Tenant to the extent that the information contained in the Tenant Estoppel Certificate obtained from the Tenant is materially consistent with the information contained in Seller’s Estoppel Certificate. All Tenant Estoppel Certificates required hereby shall be substantially in the form of the Seller’s Estoppel Certificate or, if the applicable Lease provides a form tenant estoppel certificate that includes all of the material provisions of the Seller’s Estoppel Certificate, then in the form so provided in such Lease, as the case may be; but such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Tenant Estoppel Certificate (or Seller’s Estoppel Certificate) shall count towards the Estoppel Requirement if it (A) discloses any material default by Tract K Seller or the respective Tenant that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Leases as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Periodrespectively, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value of not more than One Hundred Thousand Dollars ($100,000) and an aggregate value (with respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) of not more than Two Hundred Thousand Dollars ($200,000) and that would not entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value greater than One Hundred Thousand Dollars ($100,000) or an aggregate value (with respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) greater than Two Hundred Thousand Dollars ($200,000) or that would entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of by this Section 6.1(g) below6.1(c). If any Tenant Estoppel Certificate or Seller’s Estoppel Certificate provided to Purchaser contains any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by the information contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an Update. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, an estoppel certificate that would otherwise satisfy the requirements for an acceptable estoppel certificate above, except for an alleged “landlord default” or any Tenant claims or disputes in excess of the foregoing amounts set forth in such certificate shall be deemed acceptable and shall count toward the Estoppel Requirement if (x) Tract K Seller cures such asserted landlord default at or prior to the Closing, or (y) Tract K Seller is disputing such landlord default in good faith, such alleged default reasonably could not result in a termination of the respective Lease, and Tract K Seller at its sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the cure of such landlord default post-Closing and pay Tenant all amounts due under the Lease or that otherwise may be due to the Tenant under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in landlord’s favor or such landlord default is cured, and if such dispute is not resolved in landlord’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure the landlord default and pay Tenant all amounts due under the Lease or that may otherwise be due to the Tenant under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to Tract K Seller. Purchaser shall reasonably cooperate with Tract K Seller’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed to Purchaser).
(d) Purchaser On the Closing Date, title to the Real Property shall have received from the landlord under each Ground Lease a “Ground Landlord’s Consent” substantially in the form of Schedule 6.1(d), which includes the “Ground Landlord Estoppel Provisions” therein, dated no earlier than the Effective Date. Such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered be conveyed to Purchaser before the commencement of the Restricted Period, no Ground Landlord Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any material default by the tenant under such Ground Lease that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Ground Leases as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. Ground Landlord Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction or other matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000) and an aggregate value (with respect to all Ground Landlord Estoppel Provisions) of not more than Three Hundred Thousand Dollars ($300,000) and that would not entitle the landlord under the applicable Ground Lease to terminate such Ground Lease pursuant subject only to the terms thereof as of the date of such Certificates shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but Ground Landlord Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction or other matters having an individual value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all Ground Landlord Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle the landlord under the applicable Ground Lease to terminate such Ground Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to all Ground Landlord Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below). If the Ground Landlord Estoppel Provisions provided to Purchaser contain any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by the information contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an Update. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, a Ground Landlord’s Consent that would otherwise satisfy the requirements for an acceptable Ground Landlord’s Consent above, except for an alleged tenant default under the Ground Lease or any landlord claim or disputes under such Ground Lease in excess of the foregoing amounts set forth in such Certificate shall be deemed acceptable and shall satisfy this condition to Closing if (x) the tenant under such Ground Lease cures such asserted tenant default at or prior to the Closing, or (y) the tenant under such Ground Lease is disputing such tenant default in good faith, such alleged default reasonably could not result in a termination of such Ground Lease, and the tenant under such Ground Lease at its sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the cure of such tenant default post-Closing and pay the landlord under such Ground Lease all amounts due under such Ground Lease or that otherwise may be due to the landlord under such Ground Lease under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in favor of the tenant under such Ground Lease, or such tenant default is cured, and if such dispute is not resolved in tenant’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure the applicable default and pay the landlord under such Ground Lease all amounts due under such Ground Lease or that may otherwise be due to such landlord under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to the applicable Seller entity. Purchaser shall reasonably cooperate with any such Seller entity’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed to Purchaser)Permitted Exceptions.
(e) Purchaser shall have received an estoppel certificate from each party to the TDA (other than any Seller) (each such party being a “TDA Party”) a “TDA Consent” Tenant substantially in the form of Schedule 6.1(e)attached hereto as Exhibit B.
(f) Purchaser shall have received environmental reports reasonably acceptable to Purchaser for the Real Property.
(g) Purchaser shall have received a zoning certification for the Real Property issued by ▇▇▇▇▇▇▇▇ County, which includes Ohio in form and substance reasonably acceptable to Purchaser (the “TDA Estoppel ProvisionsZoning Certificate” therein, dated no earlier than ).
(h) Purchaser shall have received the Effective Date. Updated Survey.
(i) The TDA Estoppel Provisions required hereby Title Company shall be substantially have irrevocably and unconditionally committed to issue a title insurance policy to Purchaser in the form set forth amount of the Purchase Price, with the standard pre-printed exceptions deleted, and subject only to the exceptions shown in the TDA Consent; but such form may contain modifications and additions so long as it sets forth the material provisions of the form attached hereto. Except as provided in Section 6.1(g) below Title Commitment which have been approved or deemed approved by Purchaser consistent with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no TDA Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any material default by any Person under the TDA that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the TDA as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. TDA Estoppel Provisions that set forth claims, disputes or defaults with respect to construction, remediation or other matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000) and an aggregate value (with respect to all TDA Estoppel Provisions) of not more than Three Hundred Thousand Dollars ($300,000) and that would not entitle a TDA Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificate shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but TDA Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction, remediation or other matters having an individual value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all TDA Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle a TDA Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to the TDA Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(gthis Agreement, together with such endorsements as Purchaser may request, including without limitation a non-imputation endorsement (ALTA Form 15), contiguity endorsement, and survey endorsement.
(j) below)The membership interests of Northgate Partners, LLC shall have been assigned by the members of Northgate Partners, LLC pursuant to that certain Membership Interest Purchase Agreement among such members and FMP Northgate LLC dated on or about the date hereof.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Feldman Mall Properties, Inc.)
Conditions Precedent Favoring Purchaser. Purchaser’s obligations under this Agreement are obligation to purchase the Property is subject to the fulfillment of the conditions set forth in this Section 6.1 on or before the Closing DateDate 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 or by Purchaser consummating the transactions described in this Agreement at the Closing.
(a) Each 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 such Seller, as the case may be, prior to or at the Closing.
(b) Subject to Section 7.37.5, on the Closing Date, the representations of the respective parties within the term Seller set forth in Section 7.2 Representations (as the same have been updated pursuant to Section 7.3(c7.5(c)) shall be true, complete and accurate in all material respects, subject to: (1) changes that: (yx) are caused by the acts or omissions of Purchaser or Persons acting under Purchaser; , (y) cannot reasonably be expected, individually or in the aggregate, to (i) have an adverse effect upon Purchaser or the Property in excess of the Threshold Amount, with respect to any such changes that have measurable monetary implications, or (ii) have an adverse effect in any material respect on the 50 Northern Property or the 11 Fan Pier Property, with respect to any other changes, or (z) are a result of the operation construction, operation, management and/or leasing of the Property in the normal course of business since the date hereof Effective Date 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 of the Property or the Purchaser’s ability to use the Property for its intended usesAgreement; and (2) casualty Casualty or condemnation Condemnation (which shall be governed by Section 6.3) and (3) any deemed modification or modification to any Seller Representation pursuant to Section 7.5(b) or (c); provided, however, that with respect to any Seller Representation that is made as of the Effective Date (or another specified date) or expressly states that it is made 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 as of the Effective Date or such other specified date, as applicable.
(c) Not less than five (5) Business Days prior to the Closing, Purchaser shall have received estoppel certificates Estoppel Certificates from Vertex with respect to each of the following Tenants: Alexion Pharmaceuticals, Inc., Higher One, Inc. and CT Technology Development Corp. Vertex 50 Northern Lease (each, a the “Tenant Estoppel Certificate50 Northern Vertex Estoppel”) or shall have been provided with Seller’s Estoppel Certificates as permitted by and the following sentenceVertex 11 Fan Pier Lease (the “11 Fan Pier Vertex Estoppel”), in each case dated no earlier than sixty (60) days before the Effective Date Closing (the “Vertex Estoppel Requirement”). If Tract K Seller is unable to obtain estoppel certificates from Higher One, Inc. and CT Technology Development Corp., in order to meet the Estoppel Requirement, Tract K provided that Seller shall provide have the option from time to time, by written notice to Purchaser delivered not less than five (5) Business Days prior to the Purchaser substitute Seller’s Estoppel Certificates with respect Closing, to extend the Leases Closing Date for up to Higher One, Inc. and CT Technology Development Corp., as the case may be. With respect to any Tenant for whom Tract K Seller delivers a Seller’s Estoppel Certificate, Tract K Seller’s statements therein shall be deemed to be representations and warranties as though set forth under and subject to Article 7 of this Agreement. Tract K Seller shall be entitled to continue to deal with such Tenant after Closing to attempt to obtain a Tenant Estoppel Certificate from such Tenant. If Purchaser subsequently receives a Tenant Estoppel Certificate from any Tenant for whom Tract K Seller has delivered a Seller’s Estoppel Certificate, Tract K Seller shall thereupon be released from liability with respect to the Seller’s Estoppel Certificate given with respect to such Tenant thirty (30) days to the extent that Seller deems necessary to permit Seller to satisfy the information contained in requirement to deliver such Vertex Estoppels not less than five (5) Business Days prior to the Tenant Closing. Each Vertex Estoppel Certificate obtained from the Tenant is materially consistent with the information contained in Seller’s Estoppel Certificate. All Tenant Estoppel Certificates required hereby shall be substantially in the form of the Seller’s Estoppel Certificate orattached hereto as Schedule 6.1(c), if the applicable Lease provides a form tenant estoppel certificate that includes all of the material provisions of the Seller’s Estoppel Certificate, then in the form so provided in such Lease, as the case may be; but such form may contain modifications and additions so long as it sets forth the material provisions substance of the such form attached heretois included. Except as otherwise provided in Section 6.1(g6.1(m) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Periodbelow, no Tenant Vertex Estoppel Certificate (or Seller’s Estoppel Certificate) shall count towards the Estoppel Requirement if it (A1) discloses any material default by Tract K Seller or the respective Tenant Vertex that was not disclosed to Purchaser before the commencement of the Restricted Period or Effective Date, (B2) contains information that is materially inconsistent with the information set forth in the Vertex Leases or the Due Diligence Materials as made available to Purchaser before the commencement of the Restricted Period or Effective Date, (C3) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted PeriodEffective Date, and in each case has a material such claims or disputes can reasonably be expected, individually or in the aggregate, to (i) have an adverse effect upon Purchaser or the Property in excess of Five Million Dollars ($5,000,000), with respect to any such claims or disputes that have measurable monetary implications, or (ii) have an adverse effect in any material respect on the value of 50 Northern Property or the Property following the Closing; 11 Fan Pier Property, with respect to any other such claims or disputes, or (D4) discloses any information that would make any Seller Representation untrue in any material respect. Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value of not more than One Hundred Thousand Dollars ($100,000) and an aggregate value (with respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) of not more than Two Hundred Thousand Dollars ($200,000) and that would not entitle the Tenant under the applicable Lease to terminate such Lease pursuant without regard to the terms thereof as of the date of such Certificates shall conclusively be deemed not to have a material adverse effect on the value of the Property immediately following the Closing; but Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value greater than One Hundred Thousand Dollars ($100,000) or an aggregate value (with respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) greater than Two Hundred Thousand Dollars ($200,000) or that would entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) belowsentence). If any Tenant Vertex Estoppel Certificate or Seller’s Estoppel Certificate provided to Purchaser contains any information that is inconsistent with any Seller Representation, the such Seller Representation shall be deemed modified by the information contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an UpdateVertex Estoppel. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(g6.1(m) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Periodbelow, an estoppel certificate a Vertex Estoppel that would otherwise satisfy the requirements for an acceptable estoppel certificate Vertex Estoppel above, except for an alleged “landlord default” or any Tenant Vertex claims or disputes in excess of the foregoing amounts set forth in such certificate Vertex Estoppel shall be deemed acceptable and shall count toward the Vertex Estoppel Requirement if (x) Tract K Seller cures such asserted landlord default at or prior to the Closing, or (y) Tract K Seller is disputing such landlord default in good faith, such alleged default reasonably could not reasonably be expected to result in a termination of the respective Lease, Vertex Lease and Tract K Seller deposits (which may be funded from proceeds otherwise distributable to Seller at its sole discretion deposits the Closing) with the Escrow Agent at the Closing funds in the amount of 125% of the amount reasonably adequate to effect the cure of such landlord default post-Closing and pay Tenant Vertex all amounts due under the such Vertex Lease or that otherwise may be due to the Tenant Vertex under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in the applicable landlord’s favor or such landlord default is cured, and if such dispute or default is not so resolved in the applicable landlord’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure the landlord default and pay Tenant Vertex all amounts due under the such Vertex Lease or that may otherwise be due to the Tenant Vertex under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to Tract K Seller. Purchaser shall reasonably cooperate with Tract K Seller’s efforts to effect such cure after the Closing at no material out-of-pocket cost to Purchaser (unless such cost is reimbursed to Purchaser). Any Vertex Estoppel that sets forth claims, disputes or landlord defaults with respect to matters that are included in the applicable Finish Work Reconciliation Statement (as defined in the Vertex Leases) shall conclusively be deemed not to have an adverse effect with respect to such claims, disputes or landlord defaults, provided that Seller is disputing such claims, disputes or landlord defaults, such matters could not reasonably be expected to result in a termination of the respective Vertex Lease and Seller deposits (which may be funded from proceeds otherwise distributable to Seller at the Closing) with the Escrow Agent at the Closing funds in the amount of 125% of the amount reasonably adequate to effect the resolution of such matters post-Closing and pay Vertex all amounts due under such Vertex Lease or that otherwise may be due to Vertex under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such matter is resolved in the applicable landlord’s favor, and if such matter is not so resolved in the applicable landlord’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to resolve such matter and pay Vertex all amounts due under such Vertex Lease or that may otherwise be due to Vertex under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to Seller. The provisions of this Section 6.1(c) shall survive Closing.
(d) Not less than five (5) Business Days prior to the Closing, Purchaser shall have received Estoppel Certificates confirming the accuracy in all material respects of the Rent Roll from Other Tenants (each, an “Other Tenant Estoppel”) or shall have been provided with Seller Estoppels as permitted by the following sentence, in each case dated no earlier than sixty (60) days before the Closing, in a sufficient number so that, in the aggregate, Purchaser receives Estoppel Certificates that cover at least seventy percent (70%) (by net rentable square feet) of the Improvements that are subject to Other Leases as of the Closing (the “Other Tenant Estoppel Requirement”). If the Seller is unable to obtain a sufficient number of Other Tenant Estoppels to meet the Other Tenant Estoppel Requirement, Seller or either of them (whichever is the landlord of the Tenant at issue) may, at their respective sole option, provide to the Purchaser one or more substitute Estoppel Certificates with respect to one or more of the Other Leases (a “Seller Estoppel”) to the extent necessary to satisfy the Other Tenant Estoppel Requirement. Seller shall be entitled to continue to attempt to obtain an Other Tenant Estoppel from such Other Tenants after Closing. If Purchaser subsequently receives an Other Tenant Estoppel from any Other Tenant for whom the applicable Seller has delivered a Seller Estoppel, Seller shall thereupon be released from liability with respect to the Seller Estoppel given with respect to such Other Tenant to the extent that the information contained in the Other Tenant Estoppel obtained from the landlord under each Ground Lease a “Ground Landlord’s Consent” Other Tenant is materially consistent with the information contained in Seller Estoppel. Each Other Tenant Estoppel shall be substantially in the form of attached hereto as Schedule 6.1(d), which includes the “Ground Landlord Estoppel Provisions” therein, dated no earlier than the Effective Date. Such but such form may contain modifications and additions so long as it sets forth the substance of such form is included, and the delivery of an Other Tenant Estoppel in form that complies in all material provisions of respects with the applicable Other Lease shall in all events be deemed to be an Other Tenant Estoppel in form attached heretoand shall satisfy the Other Tenant Estoppel Requirement as to form for such Other Lease. Except as provided in Section 6.1(g6.1(m) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Periodbelow, no Ground Landlord Other Tenant Estoppel Provisions (or Seller Estoppel) shall satisfy this condition to Closing count towards the Other Tenant Estoppel Requirement if the same it (A1) discloses any material default by Seller or the tenant under such Ground Lease respective Other Tenant that was not disclosed to Purchaser before the commencement of the Restricted Period or Effective Date, (B2) contains information that is materially inconsistent with the information set forth in the Ground Other Leases or the Due Diligence Materials as made available to Purchaser before the commencement of the Restricted Period or Effective Date, (C3) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted PeriodEffective Date, and in each case has a material such claims or disputes can reasonably be expected, individually or in the aggregate, to (i) have an adverse effect upon Purchaser or the Property in excess of One Million Dollars ($1,000,000), with respect to any such claims or disputes that have measurable monetary implications, or (ii) have an adverse effect in any material respect on the value of 50 Northern Property or the Property following the Closing; 11 Fan Pier Property, with respect to any other such claims or disputes, or (D4) discloses any information that would make any Seller Representation untrue in any material respect. Ground Landlord Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction or other matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000) and an aggregate value (with respect to all Ground Landlord Estoppel Provisions) of not more than Three Hundred Thousand Dollars ($300,000) and that would not entitle the landlord under the applicable Ground Lease to terminate such Ground Lease pursuant without regard to the terms thereof as of the date of such Certificates shall conclusively be deemed not to have a material adverse effect on the value of the Property immediately following the Closing; but Ground Landlord Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction or other matters having an individual value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all Ground Landlord Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle the landlord under the applicable Ground Lease to terminate such Ground Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to all Ground Landlord Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) belowsentence). If the Ground Landlord any Other Tenant Estoppel Provisions or Seller Estoppel provided to Purchaser contain contains any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by the information contained in such Certificate, and for the avoidance of doubt, each such Certificate shall be treated as an Updateestoppel. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(g6.1(m) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Periodbelow, a Ground Landlord’s Consent an Other Tenant Estoppel that would otherwise satisfy the requirements for an acceptable Ground Landlord’s Consent Tenant Estoppel above, except for an alleged tenant default under the Ground Lease “landlord default” or any landlord claim Other Tenant claims or disputes under such Ground Lease in excess of the foregoing amounts set forth in such Certificate shall be deemed acceptable and shall satisfy this condition to Closing count toward the Other Tenant Estoppel Requirement if (x) the tenant under such Ground Lease applicable Seller cures such asserted tenant landlord default at or prior to the Closing, or (y) the tenant under such Ground Lease applicable Seller is disputing such tenant landlord default in good faith, such alleged default reasonably could not reasonably be expected to result in a termination of such Ground the respective Other Lease, and Seller deposits (which may be funded from proceeds otherwise distributable to Seller at the tenant under such Ground Lease at its sole discretion deposits Closing) with the Escrow Agent at the Closing funds in the amount of 125% of the amount reasonably adequate to effect the cure of such tenant landlord default post-Closing and pay the landlord under such Ground Lease Other Tenant all amounts due under such Ground the Other Lease or that otherwise may be due to the landlord under such Ground Lease Other Tenant under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in the applicable landlord’s favor of the tenant under such Ground Lease, or such tenant landlord default is cured, and if such dispute or default is not resolved in tenantthe applicable landlord’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure the applicable landlord default and pay the landlord under such Ground Lease Other Tenant all amounts due under such Ground the Other Lease or that may otherwise be due to such landlord the Other Tenant under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to the applicable Seller entitySeller. Purchaser shall reasonably cooperate with any such Seller entitySeller’s efforts to effect such cure after the Closing at no material out-of-pocket cost to Purchaser (unless such cost is reimbursed to Purchaser). Seller shall use good faith efforts to obtain Other Tenant Estoppels that satisfy the Other Tenant Estoppel Requirement, provided that Seller shall in no event be obligated to expend any funds in connection with obtaining such Other Tenant Estoppels, and Purchaser agrees that in no event shall the failure of Seller to obtain sufficient Other Tenant Estoppels to satisfy the Other Tenant Estoppel Requirement in and of itself constitute a default by Seller under this Agreement. If Purchaser believes that any Other Tenant Estoppels delivered to it prior to Closing should not count toward the satisfaction of the Other Tenant Estoppels Requirement, Purchaser shall so notify Seller in writing within three (3) Business Days from Purchaser’s receipt of such Other Tenant Estoppels, which notice must set forth in reasonable detail the reasons why Purchaser does not believe that the Other Tenant Estoppels in question satisfies the requirements of this Section 6.1(d). With respect to any Other Tenant Estoppels delivered to Purchaser as to which Purchaser does not so provide Seller with written notice of its objections within such three (3) Business Days, Purchaser shall be deemed to have approved the applicable Other Tenant Estoppels. The provisions of this Section 6.1(d) shall survive Closing.
(e) Purchaser Final Completion of the Base Building Work, Finish Work and Required Off-Site Improvements (including, without limitation, the Water Related Improvements) shall have received occurred (the date of such occurrence being the “Final Completion Date”), as evidenced by Seller having delivered to Purchaser the following:
(i) A written statement from each party to the TDA (other than any Seller) (each such party being a “TDA Party”) a “TDA Consent” Seller substantially in the form attached hereto as Schedule 6.1(e)(i) certifying that Final Completion of Schedule 6.1(e)the Base Building Work, which includes Finish Work and Required Off-Site Improvements has occurred to the extent required pursuant to this Agreement (the “TDA Estoppel Provisions” therein, dated no earlier than Final Completion Certificate”).
(ii) Copies of each of the Effective Date. The TDA Estoppel Provisions required hereby shall be substantially following documents or other items specified in the form set forth definition of “Final Completion” to the extent that such documents or other items were not previously delivered to Purchaser (collectively, the “Final Completion Deliveries”):
(1) Final Lien Waivers from the Base Building General Contractors, Finish Work General Contractors and Water Related Improvements General Contractor (provided, however, if Seller is unable to obtain the required Final Lien Waiver from the Water Related Improvements General Contractor because such General Contractor has filed a Lien, Seller shall, in the TDA Consent; but such form may contain modifications and additions so long as it sets forth the material provisions lieu of delivery of the form attached hereto. Except as provided in Section 6.1(gapplicable Final Lien Waiver, deliver evidence that any such Liens have been fully bonded, insured or otherwise secured to the reasonable satisfaction of Purchaser and discharged of record); and
(2) below As-built drawings with respect to any Certificate delivered to Purchaser before the commencement of the Restricted PeriodBase Building Work, no TDA Estoppel Provisions shall satisfy this condition to Closing if the same (A) discloses any material default by any Person under the TDA that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the TDA as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, Finish Work and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. TDA Estoppel Provisions that set forth claims, disputes or defaults with respect to construction, remediation or other matters having an individual value of not more than One Hundred Fifty Thousand Dollars ($150,000) Required Off-Site Improvements have been completed and an aggregate value (with respect to all TDA Estoppel Provisions) of not more than Three Hundred Thousand Dollars ($300,000) and that would not entitle a TDA Party to terminate the TDA pursuant issued to the terms thereof as of the date of such Certificate shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing; but TDA Estoppel Provisions that set forth claims, disputes or tenant defaults with respect to construction, remediation or other matters having an individual value greater than One Hundred Fifty Thousand Dollars ($150,000) or an aggregate value (with respect to all TDA Estoppel Provisions) greater than Three Hundred Thousand Dollars ($300,000) or that would entitle a TDA Party to terminate the TDA pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to the TDA Estoppel Provisions, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below)extent s
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Senior Housing Properties Trust)