Conditions Precedent to Closing. a. The obligation of Purchaser to close hereunder shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of the following conditions: (1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Closing. (2) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing. (3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval. (4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge. (5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 2 contracts
Sources: Contract of Sale (Comstock Holding Companies, Inc.), Contract of Sale (Comstock Holding Companies, Inc.)
Conditions Precedent to Closing. a. The obligation of Purchaser to close hereunder (A) It shall be expressly conditioned upon, a condition precedent to Purchaser's obligations to consummate the transactions contemplated by this Agreement that (a) all representations and subject to, the satisfaction (or written waiver warranties made herein by Purchaser) of each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be Seller are true and correct in all material respects as if of each Closing Date, and all covenants made by Seller herein are fully complied with in all material respects, other than obligations required to be performed by Seller at Closing, which obligations must be fully complied with in all respects at each Closing, (b) as of each Closing Date, there shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the Date benefit of Closing.
(2) No part of the Property shall have been acquiredcreditors, or shall be about to be acquired (as evidenced by written notice thereof)insolvency, by authority of any governmental agency bankruptcy, reorganization or other authority in proceedings that could adversely affect the exercise of its power of eminent domain operation or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion value of the Property or Seller's ability to perform its obligations under this Agreement, and (c) as of each Closing Date, there shall have been no material adverse change in the performance of any condemnation award of the self storage facilities comprising the Property to be made acquired at such Closing, or in connection therewith; any of the items reviewed by Purchaser during the Approval Period, including without limitation the Due Diligence Items, failing which, Purchaser, at its option, and (C) Seller in addition to any other remedy available, shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for be entitled to terminate this Agreement and receive a condemnation award arising prior to Closingreturn of the ▇▇▇▇▇▇▇ Money.
(3B) All written notices It shall be a condition precedent to Seller’s obligations to consummate the transactions contemplated by this Agreement that (a) all representations and warranties made herein by Purchaser are true and correct in all material respects as of violations of governmental orders or requirements noted or issued by any public authority having jurisdictioneach Closing Date, and any action in any court against or affecting the Property, shall have been all covenants made by Purchaser herein are fully complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect in all material respects, other than obligations required to the Property prior to Closing, all corrective work required thereby shall be performed by Purchaser at Closing, which obligations must be fully complied with in all respects at each Closing,, and (b) as of each Closing Date, there shall exist no pending or paid by Seller. The naturethreatened actions, extentsuits, methods and materials arbitrations, claims, attachments, proceedings, assignments for any corrective work and the parties performing such work benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings that could adversely affect Purchaser’s ability to perform its obligations under this Agreement, failing which, Seller shall be subject entitled to Purchaser’s prior approvalpursue its remedies under this Agreement.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Dsi Realty Income Fund Viii), Purchase and Sale Agreement (Dsi Realty Income Fund Vii)
Conditions Precedent to Closing. a. The obligation All obligations of Acquired Company and Purchaser under this Agreement are subject to close hereunder shall be expressly conditioned uponthe fulfillment, and subject toon or prior to the closing date, the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1) Each of 8.1. That the representations or warranties contained in Section 6(a) of this Contract Purchaser and Acquired Company shall be true in all material respects as if made at and as of the Date closing date as though such representations were made at and as of Closing.such time;
(2) No 8.2. That Purchaser shall have received a written opinion, dated on the closing date, of counsel representing the Acquired Company, to the effect that the Acquired Company has been duly incorporated and is in good standing under the laws of the State of its organization with a capitalization as represented in this Agreement; that the Acquired Company is duly licensed or qualified to do business in any and all States or jurisdictions in which it does business or where in the opinion of Counsel such qualification is required; that such counsel knows of no litigation, investigation, or governmental proceeding pending or threatened against the Acquired Company which might result in any material adverse change in the business, properties, or financial condition of the Acquired Company or in any liability on the part of the Property Acquired Company; and that the assignment and delivery of the Shares of the Acquired Company pursuant to this Agreement will vest in Purchaser all right, title and interest in and to such Shares, free and clear of all liens, encumbrances and equities;
8.3. That Purchaser shall have received a certificate dated on the closing date and signed by the President of the Acquired Company, that since the date of this Agreement the Acquired Company has not done or permitted to be done any of the acts or things prohibited by this Agreement;
8.4. That no claim or liability not fully covered by insurance shall have been acquiredasserted against the Purchaser or the Acquired Company nor has either party suffered any loss on account of fire, flood, accident or other calamity of such a character as to materially adversely affect their financial condition, regardless of whether or not such loss shall be about have been insured.
8.5. That all covenants and indemnification's made herein by Purchaser and by the Acquired Company which are to be acquired (as evidenced by written notice thereof), by authority of any governmental agency performed at or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller prior to closing shall have received written notice been duly performed;
8.6. That at the time of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of closing the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent Common Stock of Purchaser (which consent shall not be unreasonably withheld the subject of any investigation or delayed); (B) prior to Closinginquiry by the Securities and Exchange Commission, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion the National Association of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdictionSecurities Dealers, and any action in any court against other State or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalFederal regulatory body.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 2 contracts
Sources: Purchase and Sale of Stock Agreement (Atlantic International Entertainment LTD), Purchase and Sale Agreement (Atlantic International Entertainment LTD)
Conditions Precedent to Closing. a. 7.1 The obligation obligations of Purchaser Seller to close hereunder shall be expressly conditioned upon, and consummate the transactions contemplated by this Agreement are subject to, the satisfaction (or written waiver by Purchaser) of to each of the following conditions:
(1) Each of the a. The representations or and warranties contained made by Buyer in Section 6(a) of this Contract Agreement shall be true in all material respects as if when made and on and as of the Date of Closing.
(2) No part Closing as though such representations and warranties were made on and as of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”)Closing. If such a Taking has occurred or if Seller shall have received written notice from Buyer at Closing a satisfactory certificate to such effect signed by an authorized officer of any Buyer.
b. Buyer shall have performed and complied in all material respects with all provisions of this Agreement required to be performed or complied with by Buyer before or at Closing. Seller shall have received from Buyer at the Closing a satisfactory certificate to such contemplated Takingeffect, Purchaser may, signed by an authorized officer of Buyer.
c. Buyer shall have executed and delivered to Seller at its sole option (i) terminate this Contract and receive a full refund the Closing each of the Deposit Buyer Documents and any interest earned thereon; such additional documents as may be reasonably requested by Seller or (ii) continue the Title Company in order to consummate the transactions contemplated by this ContractAgreement.
d. Buyer shall have paid or made provisions acceptable to Seller for the payment of all fees, pay costs and expenses for obtaining all environmental due diligence, surveys, title examinations, inventory audits, and other inspections performed in connection with the full purchase price without reduction, accept transactions contemplated pursuant to this Agreement.
e. The SPA shall have not been terminated and LGWS is not in default under the terms of the SPA.
7.2 The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to each of the following conditions:
a. The representations and warranties made by Seller in this Agreement shall be true in all material respects when made and on and as of the date of Closing as though such representations and warranties were made on and as of Closing. Buyer shall have received from Seller at Closing a satisfactory certificate to such effect signed by an assignment authorized officer of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) .
b. Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent have performed and complied in all material respects with all provisions of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award this Agreement required to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders performed or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller before or at Closing. Buyer shall have received from Seller at Closing a satisfactory certificate to such effect signed by an authorized officer of Seller.
c. Seller shall have executed and delivered to Buyer at the Property Closing each of the Seller Documents and such additional documents as may be reasonably requested by Buyer or the Title Company in order to consummate the transactions contemplated by this Agreement.
d. The SPA shall have not been terminated and Shareholders are not in default under the terms of the SPA.
7.3 The obligations of each of Seller and Buyer to consummate the transactions contemplated by this Agreement are subject to each of the following condition: as of the Closing Date, there shall not be free and clear thereof. In the event that any notices claim or judgment of violations are issued with respect to the Property prior to Closingany nature or type threatened, all corrective work required thereby shall be performed pending or made by or paid by Seller. The nature, extent, methods and materials for before any corrective work and governmental authority that questions or challenges the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion lawfulness of the Propertytransactions contemplated by this Agreement under any law or regulation or seeks to delay, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orrestrain or prevent such transactions.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Lehigh Gas Partners LP), Purchase and Sale Agreement
Conditions Precedent to Closing. a. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
9.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made of the date hereof and as of the Date of Closing.
(2) No part of the Property shall have been acquiredClosing Date, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent have on or prior to closing, failed to meet, comply with or perform in any Taking material respect any conditions or agree agreements on Seller's part as required by the terms of this Agreement. If, due to any condemnation award without a circumstance beyond the prior written consent of Purchaser (which consent Seller's reasonable control, this condition cannot be met by the Seller, this Agreement and the Escrow shall thereupon be terminated, Buyer shall not be unreasonably withheld or delayed); (B) prior entitled to Closingpurchase the Property, Seller shall provide Purchaser with an opportunity not be obligated to participate with Seller in any negotiations relating to a Taking affecting any portion of sell the Property or to Buyer and the parties shall be relieved of any condemnation award further obligation to be made in connection therewith; and (C) Seller shall reasonably cooperate each other with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior respect to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, except as provided in Paragraph 5.
9.2. There shall have been complied with by Seller be no change in the matters reflected in the Title Report, and there shall not exist any encumbrance or title defect affecting the Property not described in the Title Report except for the Permitted Exceptions or matters to be satisfied at closing.
9.3. Effective as of closing, the management agreement affecting the Property shall be free terminated by Seller and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, and all corrective work required thereby termination fees incurred as a result thereof shall be performed by or the sole obligation of Seller.
9.4. Seller shall have completed the construction of the Parking Garage, in accordance with the plans and specifications previously delivered to Buyer and in compliance with all applicable building permits, legal requirements, and requirements of the Lease. Seller shall have paid by Seller. The nature, extent, methods all of the costs of the construction of the Parking Garage and materials for any corrective work shall have provided Buyer and the parties performing Title Company with such work lien waivers and other evidence of the payment as they may reasonably require.
9.5. If any such condition is not fully satisfied by closing, Buyer shall so notify Seller and may terminate this Agreement by written notice to Seller whereupon this Agreement may be canceled, upon return of the Due Diligence Items the Deposit shall be subject paid to Purchaser’s prior approvalBuyer and, thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder.
(4) The Property shall possess all clearances9.6. If Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this paragraph, permitsSeller may, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
within five (5) There days of receipt of Buyer's Notices agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be obligated to close the transaction provided Seller so satisfies such condition. If Seller fails to agree to cure or fails to cure such condition by the Closing Date, this Agreement shall be no unrepaired damage by fire or other casualty canceled and the Deposit shall be returned to Buyer and neither party shall have any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orfurther liability hereunder.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (T Reit Inc), Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Conditions Precedent to Closing. a. The obligation of Purchaser to close hereunder (A) It shall be expressly conditioned upon, a condition precedent to Purchaser’s obligations to consummate the transactions contemplated by this Agreement that (a) all representations and subject to, the satisfaction (or written waiver warranties made herein by Purchaser) of each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be Seller are true and correct in all material respects as if of each Closing Date, and all covenants made by Seller herein are fully complied with in all material respects, other than obligations required to be performed by Seller at Closing, which obligations must be fully complied with in all respects at each Closing, (b) as of each Closing Date, there shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the Date benefit of Closing.
(2) No part of the Property shall have been acquiredcreditors, or shall be about to be acquired (as evidenced by written notice thereof)insolvency, by authority of any governmental agency bankruptcy, reorganization or other authority in proceedings that could adversely affect the exercise of its power of eminent domain operation or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion value of the Property or Seller’s ability to perform its obligations under this Agreement, and (c) as of each Closing Date, there shall have been no material adverse change in the performance of any condemnation award of the self storage facilities comprising the Property to be made acquired at such Closing, or in connection therewith; any of the items reviewed by Purchaser during the Approval Period, including without limitation the Due Diligence Items, failing which, Purchaser, at its option, and (C) Seller in addition to any other remedy available, shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for be entitled to terminate this Agreement and receive a condemnation award arising prior to Closingreturn of the ▇▇▇▇▇▇▇ Money.
(3B) All written notices It shall be a condition precedent to Seller’s obligations to consummate the transactions contemplated by this Agreement that (a) all representations and warranties made herein by Purchaser are true and correct in all material respects as of violations of governmental orders or requirements noted or issued by any public authority having jurisdictioneach Closing Date, and any action in any court against or affecting the Property, shall have been all covenants made by Purchaser herein are fully complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect in all material respects, other than obligations required to the Property prior to Closing, all corrective work required thereby shall be performed by Purchaser at Closing, which obligations must be fully complied with in all respects at each Closing,, and (b) as of each Closing Date, there shall exist no pending or paid by Seller. The naturethreatened actions, extentsuits, methods and materials arbitrations, claims, attachments, proceedings, assignments for any corrective work and the parties performing such work benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings that could adversely affect Purchaser’s ability to perform its obligations under this Agreement, failing which, Seller shall be subject entitled to Purchaser’s prior approvalpursue its remedies under this Agreement.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Strategic Storage Growth Trust, Inc.), Purchase and Sale Agreement (Strategic Storage Trust II, Inc.)
Conditions Precedent to Closing. a. A. Conditions to the Obligations of Each of the Parties. The obligation of Purchaser each of the parties hereto to close hereunder shall be expressly conditioned upon, and consummate the transactions provided for herein is subject to, to the satisfaction (fulfillment on or written waiver by Purchaser) prior to the Effective Time of each of the following conditions:
(1) Each . The shareholders of Franklin shall have duly approved the representations or warranties Merger and the plan of merger contained within this Agreement in Section 6(a) of this Contract shall be true accordance with and as required by law and in all material respects as if made as of the Date of Closingaccordance with Franklin's Charter and Bylaws.
(2) No part of the Property . All necessary governmental and regulatory orders, consents, clearances and approvals and requirements shall have been acquiredsecured and satisfied for the consummation of such transactions, or shall be about including without limitation, those of the Federal Reserve System, the Ohio Division of Financial Institutions, the OCC and the Federal Deposit Insurance Corporation to be acquired (as evidenced by written notice thereof)the extent required and, by authority of any governmental agency or other authority in the exercise case of its power Fifth Third's obligation, none of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Takingorders, Purchaser mayconsents, at its sole option (i) terminate this Contract clearances and receive a full refund of the Deposit approvals and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s a Burdensome Condition.
3. Any waiting period mandated by law in respect of the final requisite approval by any applicable Regulatory Agency of the transaction contemplated herein shall have expired.
4. No order or injunction of any federal or state agency or court shall be in effect preventing, prohibiting or enjoining the transactions contemplated by this Agreement.
5. Fifth Third shall have registered its shares of Fifth Third Common Stock to be issued to the Franklin shareholders hereunder with the SEC pursuant to the Securities Act, and with all applicable state securities authorities. The registration statement with respect thereto shall have been declared effective by the SEC and all applicable state securities authorities and no stop order shall have been issued and be continuing. The shares of Fifth Third Common Stock to be issued to the Franklin shareholders hereunder shall have been authorized for trading on the Nasdaq National Market upon official notice of issuance.
B. Additional Conditions to the Obligations of Fifth Third and Fifth Third Financial. The obligation of Fifth Third and Fifth Third Financial to consummate the transactions provided for herein is subject to the fulfillment at or prior approvalto the Effective Time of each of the following additional conditions unless waived by Fifth Third in a writing delivered to Franklin which specifically refers to the condition or conditions being waived:
1. The representations and warranties of Franklin contained herein shall be true and correct both as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date.
2. Franklin shall have performed all of the obligations required of it under the terms of this Agreement in all material respects.
3. Fifth Third shall have received a certificate from Franklin, executed by its chief executive officer and chief financial officer, dated the Closing Date, certifying to each of such officers' best knowledge and belief that the conditions set forth in Section VI.B.1. and VI.B.2. have been satisfied.
4. No investigation or action by any state or federal agency shall have been threatened in writing or instituted seeking to enjoin or prohibit or unwind the transactions contemplated hereby and no governmental action or proceeding shall have been threatened or instituted before any court or governmental body or authority, seeking to enjoin or prohibit or unwind, the transactions contemplated hereby or seeking to impose material sanctions or penalties as a result thereof (other than investigations, actions and proceedings which have been withdrawn prior to the Closing without a Material Adverse Effect on Fifth Third or Franklin, and other than regularly scheduled regulatory examinations).
5. At or prior to the Effective Time, Fifth Third shall have entered into written employment, severance and/or non-competition agreements with each of (a) ▇▇▇▇▇▇ ▇▇▇▇▇, (b) ▇▇▇▇▇ ▇▇▇▇▇, (c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, (d) ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., and (e) ▇▇▇▇ ▇▇▇▇▇▇▇▇ on terms satisfactory to Fifth Third and each of the foregoing individuals.
(4a) The Property In consideration of the consummation of the Merger, each of the Directors of Franklin and Bank Subsidiary (except those persons who enter into an agreement as required by VI.B.5 above) shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purposereceive a cash payment from Fifth Third in the amount of $5,000, and each Director of Franklin (except those persons who enter into an agreement as required by VI.B.5 above) shall have executed and delivered to Fifth Third an agreement by which the same Directors shall be agree for a period of three years after the Effective Time to refrain from directly or indirectly, whether for his or her own account or for the account of any other person, firm, corporation, or other business organization, (i) in full force and effectthe states of Kentucky or Tennessee, engage in good standing and not subject providing Banking Services (as defined below) as an employee, officer, director, or consultant on behalf of any other business organization who is a competitor of Fifth Third, (ii) provide Banking Services to any known Client (as defined below), (iii) make any statement or threatened challenge.
take any actions that may interfere with Fifth Third's or any Affiliate's business relationships with any Client, (5iv) There shall be no unrepaired damage contact either directly or indirectly any Client or otherwise induce or attempt to induce any Client to enter into any business relationship with any person or firm other than Fifth Third or an Affiliate relating to Banking Services of any type, (v) endeavor or entice away from Franklin or Fifth Third any person who the Director has actual knowledge that such person is, or was at any time during the period the Director was employed by fire Franklin or Fifth Third or during the Restricted Period, employed by or associated with Fifth Third or Franklin as an executive, officer, employee, manager, salesperson, consultant, independent contractor, representative or other casualty agent, or (vi) take any actions that may interfere with Fifth Third's property rights in lists of Clients or otherwise diminish the value of such lists to Fifth Third. Notwithstanding any provision contained in this Section 6, the restrictions contained herein shall not be applicable to any portion activity of the PropertyDirector or any activity of his or her spouse which existed at the time of this Agreement and which was disclosed by the Director to Fifth Third, the estimated cost and may be waived by Fifth Third with respect to one or more Directors in writing at any time and from time to time in Fifth Third's sole discretion after receipt of repair of which is One Hundred Thousand Dollars ($100,000.00) ora written request from any Director.
Appears in 2 contracts
Sources: Affiliation Agreement (Fifth Third Bancorp), Affiliation Agreement (Fifth Third Bancorp)
Conditions Precedent to Closing. a. The obligation All obligations of Purchaser under this Agreement are subject to close hereunder shall be expressly conditioned uponthe fulfillment, and subject toon or prior to the closing date, the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1) Each 9.1. That the representations of the representations or warranties contained in Section 6(a) Acquired Company and of this Contract the Purchaser shall be true in all material respects as if made at and as of the Date closing date as though such representations were made at and as of Closing.such time;
(2) No 9.2. That Purchaser shall have received a written opinion, dated on the closing date, of counsel representing the Acquired Company, to the effect that the Acquired Company has been duly incorporated and is in good standing under the laws of the State of its organization with a capitalization as represented in this Agreement; that the Acquired Company is duly licensed or qualified to do business in any and all States or jurisdictions in which it does business or where in the opinion of Counsel such qualification is required; that such counsel knows of no litigation, investigation, or governmental proceeding pending or threatened against the Acquired Company which might result in any material adverse change in the business, properties, or financial condition of the Acquired Company or in any liability on the part of the Property Acquired Company; and that the assignment and delivery of the Shares of the Acquired Company pursuant to this Agreement will vest in Purchaser all right, title and interest in and to such Shares, free and clear of all liens, encumbrances and equities.
9.3. That Purchaser shall have received a certificate dated on the closing date and signed by the President of the Acquired Company, that since the date of this Agreement the Acquired Company has not done or permitted to be done any of the acts or things prohibited by this Agreement;
9.4. That the auditors and accountants appointed by the Acquired Company to examine the books and records of the Acquired Company shall not as of the closing date have rendered a report to Purchaser stating that the financial condition of Acquired Company is not substantially as represented herein or that in their opinion the Acquired Company has contingent liabilities material in amount beyond that described in the Balance Sheet annexed hereto or as disclosed herein;
9.5. That no claim or liability not fully covered by insurance shall have been acquiredasserted against the Acquired Company nor has it suffered any loss on account of fire, or shall be about to be acquired (as evidenced by written notice thereof)flood, by authority of any governmental agency accident or other authority in the exercise calamity of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred character as to materially adversely affect their financial condition, regardless of whether or if Seller not such loss shall have been insured, and that Purchaser shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive on the closing date a full refund certificate signed by the President of the Deposit Acquired Company so stating;
9.6. That all covenants and any interest earned thereon; indemnifications made herein by the Acquired Company which are to be performed at or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, closing shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orduly performed;
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Patient Portal Technologies, Inc.), Purchase and Sale Agreement (Intelligent Security Networks, Inc.)
Conditions Precedent to Closing. a. (a) The obligation of Purchaser to close hereunder following shall be expressly conditioned uponconditions precedent to Purchaser’s obligation to consummate the purchase and sale transaction contemplated herein (the “Purchaser’s Conditions Precedent”):
(i) Purchaser shall not have terminated this Agreement in accordance with Section 4, and subject toSection 5, Section 16(a), Section 16(b), Section 17 or any other applicable section of this Agreement within the time periods described in said sections.
(ii) Title Company shall be irrevocably committed to issue, at the Closing, the satisfaction Approved Title Policy, subject to Purchaser’s payment of the title premiums for which Purchaser is responsible hereunder.
(or written waiver iii) Purchaser shall have received, no less than three (3) business days prior to the Closing, executed estoppel certificates in the form of the Approved Estoppels (as defined below) (with no changes other than de minimis changes reasonably approved by Purchaser) and not disclosing the existence of any default under the Leases referenced therein, from tenants occupying at least eighty percent (80%) of the leasable space in the Improvements which is leased as of the date of this Agreement and specifically including all of the Major Tenants. Each executed estoppel certificate delivered to Purchaser shall be deemed to be satisfactory to Purchaser unless Purchaser provides Seller with written notice within three (3) business days of Purchaser’s receipt of such estoppel certificate of its disapproval of such estoppel certificate and the basis of such disapproval. A “Major Tenant” means each of the following conditions:
(1) Each tenants at the Property: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Fargo Advisors, Sarofim Realty Advisors, Keybank National Association, KDC Holdings, ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, RGN-Metro Dallas, ▇▇▇▇▇▇▇▇ Deekins ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Apogee Medical Group, and Swank Capital. Seller’s failure to obtain said estoppel certificates shall not be a default by Seller under this Agreement. Seller has prepared, or caused to be prepared, and Purchaser has reviewed and approved the forms of estoppel certificates from the representations tenants, which were based on the form of estoppel certificate attached hereto as Exhibit D and Seller has remitted, or warranties contained in Section 6(a) of this Contract shall caused to be true in remitted, the estoppel certificates, as approved by Purchaser, to all material respects as if made as of the Date of Closing.
(2) No part tenants of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”)for signature. If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with Such estoppel certificates prepared by Seller and approved by Purchaser as provided above are referred to, collectively, as “Approved Estoppels”. Notwithstanding the Property shall be free and clear thereof. In foregoing, in the event that any notices of violations are issued with respect the condition described in this Section 9(a)(iii) shall not have been satisfied, either Seller or Purchaser may elect by notice to the Property prior other to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials extend the Closing for any corrective work and the parties performing a period not to exceed thirty (30) days in order to satisfy such work shall be subject to Purchaser’s prior approvalcondition.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Conditions Precedent to Closing. a. 5.1 Subject to the terms of the Agreement, the Purchasers shall purchase the Sale Shares subject to the fulfillment of the conditions as mentioned in Clause 5.2 below (“Conditions Precedent”) to the satisfaction of the Purchasers. The obligation Purchasers may at their sole discretion waive or defer compliance with any of Purchaser the Conditions Precedent in writing, to close hereunder the extent allowed under the applicable Law, and in case of deferment, such Conditions Precedent shall be expressly conditioned upon, and subject to, fulfilled by the satisfaction (or written waiver by Purchaser) of each of relevant Party immediately post the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Closing.
(2) No part 5.2 The Conditions Precedent to Closing are as follows:
5.2.1 The Company having passed necessary corporate resolutions in order to execute this Agreement and to fulfill its obligations under this Agreement;
5.2.2 The Selling Shareholders shall obtain all approvals, consents, authorizations etc. required by them whether under Law or under the terms of any contractual arrangement to which they are party, for the Transfer of the Property Sale Shares held by them to the Purchasers in accordance with applicable Law;
5.2.3 Each of Ajay ▇▇▇▇▇▇ ▇▇▇▇▇, Vishnu ▇▇▇▇▇▇ ▇▇▇▇▇ and Sudha ▇▇▇▇▇▇ ▇▇▇▇▇ shall obtain and furnish a certificate from a practicing chartered accountant in the format set out in Schedule 3;
5.2.4 All Government Approvals or any other third party consents, approvals or waivers having been obtained for the Transaction as may be required;
5.2.5 There shall not have been any event(s) or condition(s) of any character that constitute(s) a Company Material Adverse Effect;
5.2.6 The Standstill Obligations as mentioned in Clause 4 above shall not have been breached;
5.2.7 All Sale Shares shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract clear marketable title and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that from any notices of violations are issued and all Encumbrance;
5.2.8 A valuation report with respect to the Property prior fair market value of the Sale Shares shall have been obtained by the Company from a chartered accountant or Category I merchant banker in accordance with the Indian exchange control regulations; and
5.2.9 Details of the Designated Bank Accounts shall have been intimated to Closingthe Purchasers.
5.3 Selling Shareholders and the Company shall immediately on fulfilment of compliance with the Conditions Precedent that are required to be fulfilled by them, all corrective work required thereby shall be performed by or paid by Sellerfurnish to the Purchasers, a certificate indicating compliance with the Conditions Precedent (that have not been waived) (“Conditions Completion Notice”) in the format as prescribed under Schedule 4. The natureConditions Completion Notice shall, extentto the extent relevant, methods and materials for any corrective work be accompanied by documentary proof evidencing compliance with the Conditions Precedent by the Selling Shareholders and the parties performing such work Company. Selling Shareholders and the Company shall be subject to Purchaser’s prior approvalfulfill the Conditions Precedent and deliver the Conditions Completion Notice no later than the Effective Date.
(4) The Property 5.4 Upon receipt of the Conditions Completion Notice, the Purchaser shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, notify the Selling Shareholders and the same shall be in full force and effect, in good standing and not subject to any known Company of its satisfaction or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion dissatisfaction with the completion of the PropertyConditions Precedent. If the Purchaser notifies its dissatisfaction with the completion of the Conditions Precedent, then the estimated cost provisions of repair Clause 5.2 shall reapply upon rectification of such issues by the Selling Shareholders and the Company. The notification under which the Purchaser notifies its satisfaction with the completion of the Conditions Precedent is One Hundred Thousand Dollars ($100,000.00) orhereinafter referred to as the “Conditions Satisfaction Notice”.
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation of Purchaser to close hereunder following shall be expressly conditioned uponconditions precedent to Purchaser's obligation to consummate the purchase and sale transaction contemplated herein (the "CONDITIONS PRECEDENT"):
(a) Purchaser shall have delivered to Seller written notice of its approval of (i) the results of the inspections and tests conducted pursuant to SECTION 6 hereof, and subject to(ii) all the documents and information required to be delivered pursuant to said SECTION 6. Notwithstanding anything to the contrary in this Agreement, the satisfaction (Purchaser's approval or written waiver by Purchaser) of each of the following conditions:disapproval shall be in its sole and absolute discretion and without any obligation so to approve.
(1b) Each of Title shall have been approved by Purchaser in accordance with SECTION 5 and the representations or warranties contained in Section 6(a) of this Contract Title Company shall be true irrevocably committed to issue, and shall issue concurrently with the Closing, an ALTA Extended-Coverage Owner's Policy Form B-1970 of title insurance insuring Purchaser's interest in all material respects as if made the Real Property dated as of the Date date and time of Closingthe Closing with liability in the amount of the Purchase Price (which Purchase Price shall include the original principal amount of the Notes), subject only to the Permitted Encumbrances, together with such endorsements as Purchaser may require (the "TITLE POLICY").
(2c) No part of the Property Seller shall have been acquiredexecuted and delivered to Purchaser a Certificate updating the representations and warranties of Seller through Closing, which Certificate Seller covenants to deliver unless new matters or knowledge of a defect arises, in which case Seller shall be about deliver a Certificate which, in addition to be updating the representations and warranties, states such new matters or newly acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”)knowledge. If such new matter(s) or newly acquired knowledge does not constitute a Taking has occurred breach of a representation or if Seller warranty made herein, Purchaser may then (i) waive such matter and consummate the transaction contemplated hereby or (ii) terminate this Agreement, in which case neither party shall have received any further obligations or liabilities hereunder and any money or documents in escrow shall be returned to the party depositing the same. If any such new matters or knowledge discloses or indicates that a representation or warranty made herein was not true and correct at the time it is made, and Seller is unwilling or unable to cure such breach within three (3) days after written notice of any such contemplated Takingfrom Purchaser, Purchaser may, at its sole option shall have the right to (i) terminate its obligations under this Contract and receive a full refund of the Deposit and any interest earned thereon; Agreement or (ii) continue this Contractconsummate the transaction contemplated hereby, pay and in either case, to pursue its rights and remedies available hereunder or at law.
(d) Purchaser shall have received and approved an environmental site assessment report on the full purchase price without reductionProperty from Western Technologies, accept an assignment of Seller’s rights in any condemnation award Inc.
(whether received prior to or after Closing) and proceed to Closing; provided that, (Ae) Seller shall not consent have delivered to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion Escrow Holder each of the Property or any condemnation award to be made items described in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to ClosingSECTION 11 below.
(3f) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, The representations and any action in any court against or affecting the Property, shall have been complied with warranties made herein by Seller and the Property shall be free true and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion correct as of the Property, Closing as if made on the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) ordate thereof.
Appears in 1 contract
Conditions Precedent to Closing. a. The 9.1 Purchaser’s obligation of Purchaser to close hereunder shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of under this Purchase Contract shall be true subject to and conditioned upon the fulfillment in all material respects as if made of each and all of the following conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser at the Closing pursuant to the terms and conditions hereof shall have been delivered and shall be in form and substance required by this Purchase Contract.
9.1.2 Seller’s representations and warranties set forth in this Purchase Contract shall have been true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date and as of the Effective Date as though such representations and warranties were made at and as of Closingsuch date and time.
(2) No part 9.1.3 Seller shall have complied with, fulfilled and performed, in each case in all material respects, each of the covenants, terms and conditions to be complied with, fulfilled or performed by Seller hereunder.
9.1.4 There shall not be pending or, to the knowledge of either Purchaser or Seller, any litigation or threatened litigation which, if determined adversely, would restrain the consummation of any of the transactions contemplated by this Purchase Contract or declare illegal, invalid or nonbinding any of the covenants or obligations of the Purchaser
9.2 Without limiting any of the rights of Seller elsewhere provided for in this Purchase Contract, Seller’s obligation to close with respect to conveyance of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate under this Purchase Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to and conditioned upon the fulfillment of each and all of the following conditions precedent:
9.2.1 Purchaser’s prior approvalrepresentations and warranties set forth in this Purchase Contract shall have been true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date and as of the Effective Date as though such representations and warranties were made at and as of such date and time.
(4) The Property 9.2.2 Purchaser shall possess all clearanceshave complied with, permits, occupancy certificates, licenses fulfilled and registrations necessary for its intended purpose, and the same shall be in full force and effectperformed, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion each case in all material respects, each of the Propertycovenants, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orterms and conditions to be complied with, fulfilled or performed by Purchaser hereunder.
Appears in 1 contract
Sources: Purchase and Sale Contract (Trade Street Residential, Inc.)
Conditions Precedent to Closing. a. The In addition to the other conditions set forth in this Agreement, the following shall be conditions precedent to the parties’ obligation of Purchaser to close hereunder unless waived by the party benefiting from such contingency:
a. As to each party, all obligations to be performed by the other party hereunder prior to the Closing have been fully performed, and there shall be expressly conditioned uponno uncured event of default or event on the part of such other party that, and subject towith the expiration of any grace period permitted by the Agreement, the satisfaction (or written waiver by Purchaser) would constitute a default of such party.
b. As to each of the following conditions:
(1) Each party, all of the representations or and warranties contained of the other party set forth in Section 6(a) of this Contract Agreement shall be true in all material respects and accurate as if made as of the Date of Closing.
(2c. As to Buyer, Buyer has received the requisite percentage of Tenant Estoppels as set forth in Section 2.3.1(b).
d. As to Buyer, Buyer has received, or will receive at Closing, an assignment of any Lease Guarantees, including without limitation, any letters of credit, surety bonds or other guarantees or security provided by a tenant under the Leases, in form and substance satisfactory to Buyer as being legally effective to substitute Buyer for Seller as an assured party under such guarantee or security.
e. As to Buyer, Buyer has received, or will receive at Closing, a copy of the termination of the Contracts rejected by Buyer pursuant to Section 2.7.1, or other evidence reasonably satisfactory to Buyer that neither the Buyer nor the Property will be obligated under the rejected Contracts subsequent to the Closing Date.
f. As to each party, all terms and conditions of Section 1.13(b) No part of the Deed of Trust shall have been satisfied, Lender shall have approved in writing the transfer of the Property to Buyer and the Loan Assumption and Lender shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract fully released and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by discharged Seller and the Property shall be free Guarantors from all liabilities and clear thereof. In the event that any notices of violations are issued obligations under or with respect to the Property prior to ClosingLoan, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials except for any corrective work liabilities and obligations of Seller and the parties performing such work shall be subject to Purchaser’s prior approvalGuarantors that expressly survive assignment, transfer or repayment of the Loan (the “Lender Approval”).
(4) The Property g. As to Buyer, Buyer and Lender shall possess all clearanceshave agreed to the New Loan Documents, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and including loan modifications reasonably required by Buyer in connection with the same shall be in full force and effect, in good standing and not subject to any known or threatened challengeLoan Assumption.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Conditions Precedent to Closing. a. The obligation 6.01. Following the exercise of Purchaser to close hereunder shall be expressly conditioned upon, and subject toeither Option by Grand, the satisfaction (obligations of Grand hereunder to consummate the closing are subject to the fulfillment, prior to or written waiver by Purchaser) at such closing, as required, of each of the following conditions, subject to no reservations, restrictions, conditions or limitations unsatisfactory to Grand:
(1a) Each All conditions precedent to Grand's obligations provided for in any other section of this Agreement have been satisfied.
(b) On the closing date no litigation or action shall be pending or threatened, or have been brought, and remain undismissed, alleging the illegality, invalidity of, or seeking to enjoin the performance of this Agreement.
(c) All consents, approvals, authorizations, agreements, estoppel certificates and beneficiary statements of any third party required or reasonably requested by Grand in connection with the consummation of the transactions contemplated hereby shall have been delivered to Grand.
(d) The representations or and warranties of Cable contained in Section 6(a) of this Contract Agreement shall be true in at the closing as though such representations and warranties were made at such time.
(e) Cable shall have performed and complied with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or at the closing.
(f) No material respects adverse change with respect to the Center Property, Rear Property or Access Easement, as if made applicable, has occurred since the date of the Option Notice.
(g) Cable shall have terminated any and all agreements, other than the Leases, with respect to the applicable property as of the Date closing and, in the case of Closingthe acquisition of the entire Cable Property, if Grand has so requested, Cable shall, within five (5) days after any such request, have given notice of termination under those Leases (including, without limitation, the OPC Lease and the Sign Lease) which are then terminable on not more than ninety (90) days' notice with respect to which such request is made terminating such Leases on the earliest possible date, provided that no Lease termination need be effective prior to the closing.
(2h) No part The tenant under the McDonald's Lease and beneficiary of the McDonald's Covenant has agreed that Grand may terminate such Person's parking rights on the Cable Property shall have been acquiredprovided that there is loading ingress and egress, or shall be about and pedestrian ingress and egress, from Las Vegas Boulevard South to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority such premises and that such Person's employees are provided parking in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”)reasonable location.
6.02. If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser mayCable, at no cost to Cable, shall render Grand its sole option (i) terminate this Contract and receive a full refund reasonable cooperation in satisfying the conditions precedent to Grand's purchase of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to ClosingCable Property.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof6.03. In the event that of failure of any notices of violations are issued with respect condition precedent to Grand's obligations hereunder, if Grand so elects by written notice to Cable, this Agreement shall cease and terminate as to the Property prior applicable parcel and neither party shall have any rights against the other by reason of such termination, except that Cable shall remain liable for any Breach of this Agreement by Cable. Except for the Breach of this Agreement by Cable, the failure of any condition precedent to ClosingGrand's obligations hereunder shall not form the basis for any claim by Grand against Cable, including a claim for the recovery of the option payments made to Cable.
6.04. Any and all terms, covenants, conditions, representations and warranties contained herein which are for the benefit of Grand including, but not limited to, all corrective work required thereby shall conditions precedent and Cable's representations and warranties, may be performed waived by or paid by Seller. The nature, extent, methods Grand in its sole and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalabsolute discretion.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Option Agreement (Lakes Gaming Inc)
Conditions Precedent to Closing. a. The Purchaser’s obligation of Purchaser to close hereunder shall be expressly conditioned upon, and purchase the Property from Seller is subject toto the following conditions precedent (collectively, the satisfaction (or written waiver by Purchaser) of “Conditions Precedent”), each of the following conditionswhich are for Purchaser’s benefit only:
(1i) Each of Title. Within seven (7) calendar days from the representations or warranties contained in Section 6(a) Seller’s execution of this Contract shall be true in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to ClosingAgreement, Seller shall cause the Title Company (as hereinafter defined) to provide Purchaser, at Seller’s expense, with a preliminary title report for the Real Property (the “Preliminary Report”), which Preliminary Report shall be issued by Orange Coast Title Company, whose offices are located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Title Company”; attention Ms. ▇▇▇▇▇ ▇▇▇▇▇▇▇), together with copies of all exceptions and the documents supporting the exceptions (collectively, the “Exceptions”) in the Preliminary Report. Within fourteen (14) calendar days after the Effective Date (said period commencing on the Effective Date and ending on the fourteenth (14th) calendar day thereafter being herein defined as the “Due Diligence Period”), Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion shall review the Preliminary Report and approve or disapprove of the Property condition of the title reflected in the Preliminary Report (the “Condition of Title”), which approval or any condemnation award to disapproval must be made in connection therewith; and (C) Seller a writing which shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with be received by Seller and Escrow Agent prior to the Property end of the Due Diligence Period. Should both the Escrow Agent and Seller not actually receive Purchaser’s written approval or disapproval of the Preliminary Report prior to the end of the Due Diligence Period, said non-receipt shall be free and clear thereof. In the event that any notices of violations are issued with respect deemed to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion acceptance of the Property, and Purchaser does hereby expressly waive any and all rights it may otherwise have or had to cancel the estimated cost Escrow from and after that point in time for any reason whatsoever that is associated with title to the Real Property. If Purchaser’s notice of repair disapproval of the Condition of Title is received by both Seller and Escrow Agent prior to the end of the Due Diligence Period, in that event Seller shall have the right to either (a) terminate the escrow, cancel the title request and direct the Escrow Agent to return the Deposit to Purchaser, or (b) elect to try and modify the Condition of Title so as to eliminate the reason for Purchaser’s disapproval of the Condition of Title. If Seller elects to pursue the right granted in subparagraph (b), above, Seller shall have thirty (30) calendar days to perfect that change and the Close of Escrow shall be moved, on a day-for-day basis, to allow for that action. Notwithstanding anything else to the contrary within this Agreement, after the date on which is One Hundred Thousand Dollars ($100,000.00) orthe Seller executes this Agreement, Seller shall not alter the Condition of Title without the express written consent of Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (TNP Strategic Retail Trust, Inc.)
Conditions Precedent to Closing. a. The 6.1 In addition to any other conditions to Purchaser’s obligation of Purchaser to close set forth in this Agreement, Purchaser’s obligation to close hereunder shall be expressly conditioned upon, is subject to each and subject to, the satisfaction (or written waiver by Purchaser) of each all of the following conditionsconditions precedent:
(1) Each A. All of the Sellers’ representations or and warranties contained in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if when made and also as of the Closing Date of Closingwhen remade.
(2) No part of the Property B. All documents, instruments and assurances required hereunder to be delivered to Purchaser shall have been acquiredduly delivered to Purchaser.
C. All material covenants and agreements of Sellers under this Agreement shall have been duly performed and satisfied.
D. At Closing, Escrowee will be committed to deliver to Purchaser one or shall be about to be acquired more ALTA owner’s title insurance policies (as evidenced by written notice thereof)each, by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “TakingTitle Policy” and collectively, the “Title Policies”). If ) insuring title to each Property subject only to the Permitted Exceptions, in an amount not less than the portion of the Purchase Price allocated to such a Taking has occurred or if Seller shall have received written notice of any such contemplated TakingProperty on Schedule I, Purchaser may, at its sole option provided that (i) terminate this Contract in advance of Closing, Purchaser shall have taken all necessary and receive a full refund customary actions to arrange for or allow issuance of the Deposit such Title Policies by Escrowee, and any interest earned thereon; or (ii) continue this Contract, pay all necessary premiums or other charges required for the full purchase price without reduction, accept an assignment issuance of Seller’s rights in any condemnation award (whether received prior such Title Policies are paid pursuant to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereofParagraph 12.1. In the event that this Agreement is terminated pursuant to Paragraph 7.3, Purchaser and Seller shall each bear one half (1/2) the cost of any notices cancellation fees charged by Escrowee in connection with the issuance of violations are issued with respect commitments for the Title Policies. The immediately preceding sentence shall survive the termination of this Agreement.
6.2 In addition to any other conditions to Sellers’ obligation to close set forth in this Agreement, Sellers’ obligation to close hereunder is subject to each and all of the Property prior to Closing, all corrective work required thereby following conditions precedent:
A. All of Purchaser’s representations and warranties contained in this Agreement shall be performed by or paid by Seller. The nature, extent, methods true and materials for any corrective work correct in all material respects when made and also as of the parties performing such work shall be subject to Purchaser’s prior approvalClosing Date when remade.
(4) The Property B. All documents, instruments and assurances required hereunder to be delivered to Sellers shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject have been duly delivered to any known or threatened challengeSellers.
(5) There C. All material covenants and agreements of Purchaser under this Agreement shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orhave been duly performed and satisfied.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Credit Property Trust III, Inc.)
Conditions Precedent to Closing. a. The obligation of Purchaser to close hereunder shall be (a) Buyer's obligations under this Agreement are expressly conditioned upon, and subject to, the upon completion or satisfaction (or written waiver by Purchaser) of each of the following conditionsmatters on or prior to the Closing Date:
(1i) Each Seller shall have deposited with the Escrow Agent all documents required of Seller to be delivered into Escrow hereunder;
(ii) Seller shall not be in material default of its obligations hereunder; provided that Buyer shall have provided notice to Seller of such default and Seller shall have the right to cure such default and, unless Buyer waives any such default, Seller, at its option, shall be entitled to a reasonable adjournment of the Closing (not to exceed five (5) days from the later of the originally scheduled Closing Date or Seller's receipt of notice from Buyer of the default) in which to effect such cure, subject to the provisions of SECTION 4(G) above;
(iii) The representations or and warranties of Seller contained in Section 6(aSECTION 8(A) of this Contract Agreement shall be true and correct in all material respects as if made of the Closing Date, subject to SECTION 8(E) above;
(iv) The Title Company shall be prepared to issue to Buyer an ALTA Owner's Title Insurance Policy, with such endorsements as Buyer has specified and which the Title Company has included in its commitment issued prior to the expiration of the Due Diligence Period, and with liability equal to the total purchase price for the Property, insuring Buyer that fee title to the Property is vested in Buyer subject only to the Conditions of Title; and
(v) The Tenant Estoppel Condition shall have been satisfied.
(b) Seller's obligations to perform hereunder are expressly contingent and conditional upon the satisfaction of the following:
(i) Buyer shall have deposited or have caused to be deposited with the Escrow Agent all documents and funds required of Buyer to be deposited into Escrow or paid hereunder;
(ii) Buyer shall not be in material default of its obligations hereunder; provided that Seller shall have provided notice to Buyer of such default and Buyer shall have the right to cure such default and, unless Seller waives any such default, Buyer, at its option, shall be entitled to a reasonable adjournment of the Closing (not to exceed five (5) days from the later of the originally scheduled Closing Date or Buyer's receipt of notice from Seller of the default) in which to effect such cure;
(iii) The representations and warranties of Buyer contained in SECTION 8(B) of this Agreement shall be true and correct in all material respects as of the Date of ClosingClosing Date; and
(iv) Buyer or its assignee shall have executed a management and exclusive leasing agreement with Lawler-Wood, LLC in a form substantially identical to ▇▇▇▇ ▇▇▇▇▇hed hereto as SCHEDULE 9(B)(IV).
(2c) No part The parties acknowledge that the conditions precedent set forth in SUBSECTION (A) above are for the benefit of Buyer and that the conditions precedent set forth in SUBSECTION (B) above are for the benefit of Seller. Unless otherwise specifically set forth herein, the date by which the conditions precedent must be satisfied shall be the Closing Date. If any of the Property conditions precedent set forth in SUBSECTION (A) or SUBSECTION (B) above are not satisfied on or before the date by which they are required to be satisfied, the party for whose benefit the condition precedent exists shall have been acquired, or shall be about the right to be acquired (as evidenced terminate this Agreement by written notice thereof)of termination given to the other party on or before the Closing Date or, if earlier, within ten (10) days after the date by authority of any governmental agency or other authority in which the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”)condition must be satisfied. If such a Taking has occurred or notice of termination is given, Escrow Agent shall return all documents and funds previously deposited into escrow to the party so depositing same, except if the events described in SUBSECTIONS 9(B)(I) THROUGH (IV) are not satisfied, the Deposit shall be transferred to Seller and neither party shall have received written any further liability to the other hereunder, except as otherwise provided herein. Notwithstanding the foregoing, a party for whose benefit the condition precedent exists shall have the right to waive satisfaction thereof, in which event this Agreement shall proceed to Closing as otherwise provided herein. Unless notice of any such contemplated Takingfailure to satisfy conditions precedent is given as above provided, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property all conditions precedent shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvaldeemed satisfied.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Conditions Precedent to Closing. a. 10.1. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
10.1.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquiredEffective Date, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking have on or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser failed to meet, comply with an opportunity to participate with Seller or perform in any negotiations relating to a Taking material respect any conditions or agreements on Seller’s part as required by the terms of this Agreement.
10.1.2. There shall not exist any material, adverse encumbrance or title defect affecting any portion of the Property except for the Permitted Exceptions or any condemnation award matters to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to satisfied at Closing.
10.1.3. Existing Lender shall have given in writing the Lender Approval and shall be prepared to execute and deliver the Lender Approval Documents at Closing.
10.1.4. Within three (3) All written notices business days of violations Closing, Buyer shall have obtained, on terms acceptable to Buyer in its sole discretion, consent from the Ground Lessor for the assignment of governmental orders or requirements noted or issued by any public authority having jurisdictionthe Ground Lease from Seller to Buyer, the assumption of all future obligations of the ground lessee thereunder, and the release of Seller, as well as any affiliates of Seller from all future obligations thereunder (the “Ground Lessor Consent”). Seller agrees to cooperate with and to take all reasonable action to facilitate Buyer’s receipt of the Ground Lessor Consent, however, Buyer shall be solely responsible to pay to such lessor any and all costs, fees and expenses required in connection with the Ground Lessor Consent, if any. Buyer and Seller shall execute and deliver at Closing, an assignment and assumption of lease agreement and any court against or affecting other documents required in connection with the Property, shall have been complied with by assignment and assumption of the Ground Lease and release of Seller and any affiliates of Seller as aforesaid, in form substantially similar to Exhibit E hereto (the Property shall be free and clear thereof“Ground Lease Assignment Documents”). In the event that Buyer or Seller fails to execute and deliver the Ground Lease Assignment Documents or the Ground Lessor fails to grant the Ground Lease Consent, either Buyer or Seller shall have the right to terminate this Agreement, whereupon Section 10.3 below shall govern. Buyer shall apply to Ground Lessor for Ground Lessor Consent within five (5) business days after the Effective Date and use good faith efforts to obtain such consent from the Ground Lessor within three (3) business days prior to Closing; provided, however, so long as Buyer complies with its obligations under this Section 10.1.4 in no event shall Buyer have any notices liability for its failure to obtain such consent.
10.2. The obligations of violations are issued with respect Seller under this Agreement shall, at the option of Seller, be subject to the Property following conditions precedent:
10.2.1. All of the representations, warranties and agreements of Buyer set forth in this Agreement shall be true and correct in all material respects as of the Effective Date, and Buyer shall not have on or prior to Closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer’s part as required by the terms of this Agreement.
10.2.2. Existing Lender shall have given in writing the Lender Approval, with a release of Seller and all corrective work required thereby guarantors, indemnitors, and affiliates of Seller from all liability (except for matters which arose during Seller’s period of ownership).
10.3. If any such condition is not fully satisfied by Closing, the party in whose favor the condition runs shall notify the other party and may terminate this Agreement by written notice (in all events such written notice shall be performed given prior to Closing) whereupon this Agreement may be canceled, and upon return of the Due Diligence Items, the Deposit shall be paid to Buyer (except in the case of (a) a failure of the condition precedent described in Section 10.1.1, in which case the provisions of Section 8.2.2 shall apply, and (b) a failure of the condition precedent described in Section 10.2.1, in which case the Seller shall retain the Deposit), all other escrow documents and funds shall be returned by or paid the Title Company and/or by Seller. The nature’s counsel, extentas applicable, methods and materials for to the party which delivered them into Escrow, the Equity Escrow Holder shall return the Escrowed Equity to Buyer, and, thereafter, neither Seller nor Buyer shall have any corrective work and continuing obligations hereunder except as otherwise expressly set forth herein; provided, however, that if Buyer notifies Seller of a failure to satisfy the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearancesconditions precedent set forth in Section 10.1.2, permitsSeller may, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
within five (5) There days of receipt of Buyer’s notice agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be no unrepaired damage by fire or other casualty obligated to any portion of close the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) ortransaction contemplated hereby provided Seller so satisfies such condition.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Landmark Apartment Trust of America, Inc.)
Conditions Precedent to Closing. a. The obligation of Purchaser Purchaser's obligations hereunder are subject to close hereunder shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1a) Each Within forty-five (45) days after the date of this Agreement, Purchaser shall have the right to conduct such engineering, environmental, and feasibility studies, including soil tests, borings, drainage tests and similar tests on the Premises as Purchaser deems necessary to determine the suitability of the representations or warranties contained Premises for Purchaser's proposed use, and Purchaser shall have determined, in Section 6(a) of this Contract its reasonable discretion, that the Premises are suitable for Purchaser's proposed use. Such studies shall be true in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced conducted by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract cost and receive a full refund of expense. Seller agrees to allow Purchaser reasonable access to the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior Premises to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereofconduct such studies. In the event that any notices of violations are issued with respect Purchaser is not satisfied, then Purchaser may terminate this Agreement by giving written notice thereof to the Property prior Seller and to Closingthe Escrow Agent, in which event all corrective work required thereby funds and documents deposited by the parties with the Escrow Agent or each other shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work returned forthwith to the party who so deposited the same and the parties performing such work shall thereupon be released from any further obligations hereunder each to the other. The parties acknowledge, however, that in the event Purchaser is satisfied and/or this condition precedent is waived, nothing contained herein shall be subject construed as prohibiting Purchaser from reasonable access to Purchaser’s prior approval.
(4) The Property the Premises or from conducting additional studies, review and tests after the expiration of the aforesaid 45-day period provided such access shall possess all clearancesnot interfere with Seller's normal operations in the conduct of its business. Purchaser shall save, permitsdefend, occupancy certificates, licenses and registrations necessary for its intended purposeindemnify, and hold Seller harmless from and against all claims, lawsuits, judgments, losses, liabilities, or expenses of any kind or nature which may be incurred by Seller as the same result of Purchaser's examination, tests, or studies on the Premises (excluding the discovery of any preexisting condition on the Premises). The obligations of Purchaser imposed by the preceding sentence shall be in full force survive any termination of this Agreement and effect, in good standing and not subject to any known or threatened challenge.
shall survive Closing; (5b) There shall be no unrepaired damage by fire or other casualty to any portion Within seventy-five (75) days of the Propertydate of this Agreement, Purchaser shall have received a commitment for a first mortgage loan on the estimated cost Premises in the amount of repair of which is One not less than Five Million Two Hundred Thousand Dollars ($100,000.005,200,000.00) oror such lesser amount as Purchaser shall accept, with an interest rate and on terms reasonably acceptable to Purchaser. If Purchaser makes a good faith effort but is unable to obtain a commitment for the mortgage loan contemplated herein, or reasonably believes that it cannot comply with the terms and conditions of such commitment, Purchaser will so notify Seller in writing within the time specified, indicating the interest rate and terms which would be acceptable to Purchaser. If Seller is not so notified within said seventy-five (75) days, Purchaser shall for all purposes be deemed to have secured such commitment or to have agreed to purchase the Premises without financing or based upon any mortgage commitment actually obtained. If Seller is so notified, Seller may, at Seller's option, within thirty (30) days after said notice, elect to provide purchase money financing or to secure a mortgage commitment on behalf of Purchaser upon the same terms and conditions previously indicated by Purchaser as being acceptable. In such case, Purchaser agrees to furnish Seller all requested credit and financial information and to sign commercially reasonable papers relating to application for such mortgage commitment. If Seller is unable or unwilling to secure such commitment or to accept purchase money financing, this Agreement shall be of no further force and effect, and the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser.
(c) The conditions of the title to the Premises and survey matters shall have been approved by Purchaser in accordance with the procedure set forth in Sections 11 and 12.
(d) Prior to Closing, Purchaser shall have received an executed original of Seller's certification of nonforeign status made pursuant to Section 1445 of the Internal Revenue Code and in a form substantially similar to Exhibit B attached hereto and incorporated by this reference;
(e) Prior to Closing and after satisfaction of the conditions set forth in Sections 3(a) and (b) above, Seller agrees that the Purchaser shall have the right to file, at Purchaser's sole cost and expense, any and all plans required in order to obtain a building permit, zoning or rezoning, subdivision or lot split, or any other approval or permit from any and all governmental authorities having jurisdiction over the Premises. 5 Seller agrees that, upon Purchaser's request, Seller shall join in the execution of any application or plat required in order to obtain such permit or approval, and that Seller otherwise shall cooperate with Purchaser with respect to any permit or approval process. Without limiting the foregoing, Seller also agrees that it will not institute any legal proceedings against Purchaser and/or any governmental authority in opposition to any building permit, zoning or rezoning, subdivision, lot split or other approval or permit sought by Purchaser with respect to the Premises.
(f) Purchaser shall have the periods specified in Sections 3(a) and (b) in which to determine whether the conditions set forth therein are satisfied and, in the case of the condition of title and survey matters, the periods set forth in Sections 11 and 12. If any of such conditions are not satisfied, in the reasonable judgment of Purchaser, Purchaser may terminate this Agreement upon written notice to Seller within the applicable time, (subject to the right of Seller, if it elects, to seek to obtain or provide financing in accordance with Section (3)(b)). Absent such written notice to Seller, Purchaser shall be deemed to have waived all unsatisfied conditions and shall proceed to close this transaction.
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
9.1 All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquireddate hereof, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent have on or prior to closing, failed to meet, comply with or perform in any Taking material respect any conditions or agree to any condemnation award without agreements on Seller's part as required by the prior written consent terms of Purchaser (which consent this Agreement.
9.2 There shall be no change in the matters reflected in the Title Report, and there shall not be unreasonably withheld exist any encumbrance or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking title defect affecting any portion of the Property not described in the Title Report except for the Permitted Exceptions or any condemnation award matters to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closingsatisfied at closing.
(3) All written notices 9.3 Effective as of violations of governmental orders or requirements noted or issued by any public authority having jurisdictionclosing, and any action in any court against or the management agreement affecting the Property, shall have been complied with by Seller and the Property shall be free terminated by Seller and clear thereof. In any and all termination fees incurred as a result thereof shall be the event that any notices sole obligation of violations are issued with respect to Seller.
9.4 Seller shall have operated the Property from and after the date hereof in substantially the same manner as prior to Closingthereto.
9.5 On the Close of Escrow, all corrective work required thereby neither Seller nor any Major Tenant (as hereinafter defined) shall have filed a petition under any section of the Bankruptcy Code, as amended, or under any similar law or statute of the United States or any State thereof, nor shall Seller or any Major Tenant have been adjudged bankrupt or insolvent, nor shall any rearrangement of its debts have been requested by Seller or any Major Tenant; neither Seller nor any Major Tenant shall be performed by insolvent and no receiver or paid by trustee shall have been appointed for Seller or any of Seller. The nature's assets, extent, methods and materials or for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to Major Tenant or any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Propertyassets of a Major Tenant. For purposes hereof, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orterm "Major Tenant" shall mean HEB, Beall's, Tuesday Morning, Christian Faith Center, The ▇▇▇▇▇▇▇▇▇ Co., Taco Cabana,
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
9.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made of the date hereof and as of the Date of Closing.
(2) No part of the Property shall have been acquiredClosing Date, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent have on or prior to closing, failed to meet, comply with or perform in any Taking material respect any conditions or agree to any condemnation award without agreements on Seller's part as required by the prior written consent terms of Purchaser (which consent this Agreement.
9.2. There shall be no change in the matters reflected in the Title Report, and there shall not exist any encumbrance or title defect affecting the Property not described in the Title Report except for the Permitted Exceptions or matters to be unreasonably withheld or delayed); satisfied at closing.
9.3. Unless Seller receives notice from Buyer at least thirty (B30) days prior to Closingclosing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking effective as of closing, the management agreement affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free terminated by Seller and clear thereofany and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.4. In the event that any notices of violations are issued with respect to Seller shall have operated the Property from and after the date hereof in substantially the same manner as prior thereto.
9.5. If any such condition is not fully satisfied by closing, Buyer shall so notify Seller and may terminate this Agreement by written notice to ClosingSeller, all corrective work required thereby whereupon the Due Diligence Items will be promptly returned to Seller, the Refundable Deposit shall be performed by or paid by Seller. The natureto Buyer, extent, methods and materials for any corrective work and the parties performing such work Nonrefundable Deposit shall be subject to Purchaser’s prior approvalretained by Seller and, thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder, except as otherwise expressly provided herein.
(4) The Property shall possess all clearances9.6. If Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this paragraph, permitsSeller may, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
within five (5) There days of receipt of such notices agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be obligated to close the transaction provided Seller so satisfies such condition. If Seller fails to agree to cure or fails to cure such condition by the Closing Date, this Agreement shall be no unrepaired damage canceled, whereupon the Due Diligence Items will be promptly returned to Seller, the Refundable Deposit shall be returned to Buyer, the Nonrefundable Deposit shall be retained by fire Seller and, thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder, except as otherwise expressly provided herein.
9.7. If Buyer's acquisition of the Property is part of a tax-deferred exchange pursuant to Section 1031 of the Code, it is a condition precedent to the closing of this Escrow that Buyer is able to complete an exchange for all or other casualty to any a portion of its relinquished property pursuant to an exchange agreement between Buyer and its accommodator. Seller agrees to execute such documents or instruments as may be necessary or appropriate to evidence such exchange, provided that Seller's cooperation in such regard shall be at no additional cost, expense, or liability whatsoever to Seller, and that no additional delays in the Property, the estimated cost scheduled Close of repair of which is One Hundred Thousand Dollars ($100,000.00) orEscrow are incurred unless mutually agreed upon by all parties to this Agreement.
Appears in 1 contract
Conditions Precedent to Closing. a. The In addition to Buyer’s absolute right to terminate this Agreement for any reason at any time during the Review Period, the obligation of Purchaser Buyer under this Agreement to close hereunder shall be expressly conditioned upon, and purchase the Property from Seller is subject to, to the satisfaction (or written waiver by Purchaser) of each of the following conditionsconditions on or prior to the Closing Date, any of which conditions may be waived in whole or in part by Buyer by written waiver at or prior to the Closing Date:
(1) Each 6.1. Title to the Property shall be good and marketable as required herein, free and clear of all liens and encumbrances, and subject to no exceptions other than the Permitted Exceptions, and the Title Company shall be prepared to issue an owner’s title insurance policy pursuant to the Title Commitment insuring the title to the Property, subject only to the Permitted Exceptions, in the amount of the Purchase Price or such lesser amount as Buyer, in its sole discretion, shall determine, and with such endorsements as Buyer shall determine. Seller shall discharge all liens against the Property at Closing.
6.2. Seller shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed by, observed and complied with on its part either on or prior to the Closing Date.
6.3. All of Seller’s representations or and warranties contained in Section 6(a) of this Contract herein shall be true and correct in all material respects as if made as of the Date of ClosingClosing Date, and Seller will deliver to Buyer at Closing a certificate to that effect (or disclosing any representations or warranties which are no longer true and accurate).
(2) No part 6.4. The physical condition of the Property and the title for the Property shall not have materially changed since the conclusion of the Review Period.
6.5. Seller shall be occupying and operating its business at the Property at Closing, and Seller and Buyer shall have been acquiredentered into the Lease and Seller, as tenant under the Lease, shall not be in default in the payment of rent or shall be about to be acquired (as evidenced by written notice thereof), by authority performance of any governmental agency or other authority material obligation under the Lease.
6.6. Buyer shall have received from Seller a Subordination and Non-Disturbance Agreement in the exercise of its power of eminent domain or such form as approved by private purchase in lieu thereof (a “Taking”)any lender to Purchaser.
6.7. If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, obtained and delivered to Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser duly executed originals of estoppel certificates (the “REA Estoppels”) from all parties subject to any reciprocal easement agreements or easement with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of covenants and restrictions (the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued “Restrictive Agreements”, if any, by any public authority having jurisdiction, and any action in any court against or affecting which the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect parties to the Property prior to Closing, all corrective work required thereby Restrictive Agreement shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and certify that the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be Restrictive Agreement is in full force and effect, has not been assigned, modified or amended in good standing any way, and to the best knowledge of the party giving the estoppel, the Seller is not subject in default under the applicable instrument and all amounts, if any, owing under the Restrictive Agreement have been paid in full by Seller. In the event any of the foregoing conditions to any known the Closing are not satisfied or threatened challenge.
waived in writing by Buyer as of the Closing Date, then, Buyer may either (5i) There extend the date for Closing until such conditions are satisfied; provided in no instance shall the Closing be extended for greater than thirty (30) days, or (ii) terminate in writing this Agreement, in which case the entire ▇▇▇▇▇▇▇ Money deposit shall be returned to Buyer or (iii) waive in writing the satisfaction of any such conditions, in which event this Agreement shall be read as if such conditions no unrepaired damage longer existed; provided, however that, if such failure of condition also constitutes or is accompanied by fire or other casualty a default by Seller under this Agreement, Buyer shall have all rights and remedies as set forth in this Agreement. Notwithstanding that certain of Seller’s representations and warranties may be limited to any portion the extent of actual knowledge of the Propertyfacts stated therein, it shall be a condition precedent to Buyer’s obligation to go to Closing that the estimated cost facts stated in all such representations and warranties shall be correct as of repair the time of which is One Hundred Thousand Dollars ($100,000.00) orClosing.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions Precedent to Closing. a. The In addition to Buyer’s absolute right to terminate this Agreement for any reason at any time during the Due Diligence Period, the obligation of Purchaser Buyer under this Agreement to close hereunder shall be expressly conditioned upon, and purchase the Property from Seller is subject to, to the satisfaction (or written waiver by Purchaser) of each of the following conditionsconditions on or prior to the Closing Date, any of which conditions may be waived in whole or in part by Buyer by written waiver at or prior to the Closing Date:
(1a) Each Seller shall have performed, observed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed by, observed and complied with on its part either on or prior to the Closing Date.
b) All of the Seller’s representations or and warranties contained in Section 6(a) of this Contract herein shall be true and correct in all material respects as if made as of the Date of ClosingClosing Date, and Seller will deliver to Buyer at Closing a certificate to that effect.
(2c) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received the Required Tenant Estoppels in accordance with Section 6.3 above.
d) Buyer shall have received a written notice commitment from a lender of Buyer’s choice for a loan upon terms and in an amount which shall be subject to Buyer’s sole discretion.
e) As of the Closing Date, no Key Tenant shall have (i) filed a petition in bankruptcy; (ii) been adjudicated insolvent or bankrupt; (iii) petitioned a court for the appointment of any receiver of or trustee for it or any substantial part of its property; (iv) commenced any proceeding under any reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; (v) become the subject of an involuntary bankruptcy petition; or (vi) had its Lease terminated by a court of competition jurisdiction or by Seller.
f) As of the Closing Date, tenants under the Leases at the Property that represent in the aggregate no less than 90% of the Rents as listed on the attached Exhibit “C-1” shall be operating their respective business at the Property; provided, however, that in no event shall any tenant that ceases to operate at the Property pursuant to an express right to cease its operations pursuant to such contemplated Takingtenant’s Lease be included in any calculation in this subsection (f). In the event any of the foregoing conditions to the Closing are not satisfied or waived in writing by Buyer as of the Closing Date, Purchaser may, at its sole option then Buyer may either (i) terminate this Contract Agreement by delivery of written notice to Seller not less than the business day immediately preceding the Closing Date, whereupon the ▇▇▇▇▇▇▇ Deposit shall be refunded to Buyer together with accrued interest, and receive a full refund neither of the Deposit and parties hereto shall have any interest earned thereonfurther rights or obligations hereunder except for obligations or indemnities that expressly survive termination of this Agreement; or (ii) continue waive in writing the satisfaction of any such conditions, in which event this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property Agreement shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work read as if such conditions no longer existed and the parties performing such work shall be subject proceed to Purchaser’s prior approvalClosing in accordance with the further terms and conditions of this Agreement.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions Precedent to Closing. a. The obligation obligations of Purchaser Buyer pursuant to close hereunder this Agreement shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of to the following conditions:conditions precedent to Closing (any of which may be waived in writing by Buyer in its sole discretion):
(1) Each 9.1. All of the representations or and warranties contained of Seller set forth in Section 6(a) of this Contract 7.1 shall be true and correct in all material respects as if made of the Closing, and all of the other representations, warranties and agreements of Seller set forth in this Agreement shall be true and correct in all material respects as of the Date date hereof, and Seller shall not have on or prior to Closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Seller's part as required by the terms of this Agreement.
9.2. There shall be no material adverse change in the matters reflected in the Title Report, and there shall not exist any material adverse encumbrance or Title Defect affecting the Property except for the Permitted Exceptions or matters to be satisfied at Closing.
(2) No part of 9.3. The Existing Management Agreement affecting the Property shall have been acquired, or be terminated by Seller and any and all termination fees incurred as a result thereof shall be about to be acquired (as evidenced by written notice thereof), by authority the sole obligation of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”)Seller.
9.4. If such a Taking has occurred or if Seller shall have received written notice obtained and delivered to Buyer the Tenant Estoppel Certificates in the form attached hereto as Exhibit H, signed by each Major Tenant (defined below). Tenant Estoppel Certificates shall be deemed to satisfy this condition precedent unless they disclose material adverse matters. Buyer shall notify Seller within three (3) business days of any receipt of a copy of an executed Tenant Estoppel Certificate of its approval or disapproval and the basis of such contemplated Takingdisapproval, Purchaser mayif disapproved. If Buyer disapproves of a Tenant Estoppel Certificate executed by a Major Tenant because of a material, at its sole option (i) terminate adverse matter disclosed therein, and Seller is unable to obtain a reasonably acceptable Tenant Estoppel Certificate from such Major Tenant prior to the Close of Escrow, this Contract and receive Agreement shall terminate, Buyer shall be entitled to a full refund of the Deposit and any all interest earned thereon; or , and neither party shall have any further obligation to the other except Buyer's indemnification obligations under Section 5. As used herein, the term "MAJOR TENANT" shall mean each of (i) Golden Eagle Insurance, (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided thatElsevier, (Aiii) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser US Navy, (which consent shall not be unreasonably withheld or delayediv) Barrister Executive Services, (v) First Allied Security, (vi) California Bank & Trust and (vii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (d/b/a Lerach ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion . The Leases between Landlord and each of the Property or any condemnation award Major Tenants are hereinafter referred to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closingas the "MAJOR LEASES.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or"
Appears in 1 contract
Conditions Precedent to Closing. a. The 9.1 Purchaser’s obligation of Purchaser to close hereunder shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of under this Purchase Contract shall be true subject to and conditioned upon the fulfillment in all material respects as if made of each and all of the following conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser at the Closing pursuant to the terms and conditions hereof shall have been delivered and shall be in form and substance required by this Purchase Contract.
9.1.2 Seller’s representations and warranties set forth in this Purchase Contract shall have been true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date and as of the Effective Date as though such representations and warranties were made at and as of Closingsuch date and time.
9.1.3 Seller shall have complied with, fulfilled and performed, in each case in all material respects, each of the covenants, terms and conditions to be complied with, fulfilled or performed by Seller hereunder, subject to the cure rights in Article 12.
9.1.4 On or before March 6, 2014, the Seller and Purchaser shall agree to the terms of the Access, Amenity and Sanitary Sewer Easement Agreement and Cross Easement Agreement.
9.1.5 There shall not be pending or, to the knowledge of either Purchaser or Seller, any litigation or threatened litigation which, if determined adversely, would restrain the consummation of any of the transactions contemplated by this Purchase Contract or declare illegal, invalid or nonbinding any of the covenants or obligations of the Purchaser.
9.1.6 All parties to the Phase 2 Contract (2other than Purchaser) No part shall have executed the Phase 2 Contract and such parties shall not be in default of any of their obligations in the Phase 2 Contract, subject to any cure period provided thereunder.
9.1.7 The Title Company shall commit to issue a Title Policy to Purchaser, subject only to the Permitted Exceptions with the following endorsements: a non-imputation endorsement and ALTA 3.1-06, 8.2, 9.2-06, 17-06, 17.2, 18.1-06, 19-06, 22, 25-06, 26-06 if Buyer obtains a PZR (or similar type) report and 28.1-06 endorsement.
9.2 Without limiting any of the rights of Seller elsewhere provided for in this Purchase Contract, Seller’s obligation to close with respect to conveyance of the Property under this Purchase Contract shall be subject to and conditioned upon the fulfillment of each and all of the following conditions precedent:
9.2.1 Purchaser’s representations and warranties set forth in this Purchase Contract shall have been acquiredtrue and correct in all material respects when made, or and shall be about true and correct in all material respects on the Closing Date and as of the Effective Date as though such representations and warranties were made at and as of such date and time.
9.2.2 Purchaser shall have complied with, fulfilled and performed, in each case in all material respects, each of the covenants, terms and conditions to be acquired (as evidenced complied with, fulfilled or performed by written notice thereof)Purchaser hereunder, by authority of any governmental agency or other authority subject to the cure rights in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller Article 12.
9.2.3 Purchaser shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this executed the Phase 2 Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld in default of any obligations contained in the Phase 2 Contract subject to any cure period provided thereunder.
9.2.4 On or delayed); before March 6, 2014, the Seller and Purchaser shall agree to the terms of the Access, Amenity and Sanitary Sewer Easement Agreement and Cross Easement Agreement.
9.3 If any conditions set forth in Section 9.1 are not satisfied or waived by Purchaser or the conditions in Section 9.2 are not satisfied or waived by Seller, the Purchaser (Bas to the condition in Section 9.1) or Seller (as to the conditions in Section 9.2) shall have the right to elect the remedy set forth in Article 12, if such, failure of condition is also an event of default and if such condition is not also an event of default, such party shall have the right to terminate this Agreement upon written notice to the other party prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of whereupon the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property Deposit shall be free and clear thereof. In the event that any notices of violations are issued with respect returned to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work Purchaser and the parties performing such work shall be subject released of all further obligations each to Purchaser’s prior approvalthe other, except as to the Surviving Obligations which survive termination of this Agreement.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Contract (Trade Street Residential, Inc.)
Conditions Precedent to Closing. a. The obligation In the event of Purchaser any change prior to close hereunder shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1) Each Closing in any of the representations or and warranties contained of Seller set forth in Section 6(a4.3(a) above, Seller, promptly after obtaining knowledge of this Contract such change, shall notify Purchaser in writing thereof. It shall be a condition precedent to Purchaser's obligations to consummate this transaction that (a) all representations and warranties made herein by Seller are true and correct in all material respects as if of the Closing Date, and all covenants made by Seller herein are complied with in all material respects, (b) as of the Date Closing Date, there shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of Closing.
creditors, insolvency, bankruptcy, reorganization or other proceedings that could materially and adversely affect the Property, including the operation or value thereof, or Seller's ability to perform its obligations under this Agreement, and (2c) No part as of the Property shall have been acquiredClosing Date, or the Title Company shall be about unconditionally obligated to be acquired issue the Title Policies (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise form of its power a pro forma policy or "marked title commitment") at Closing in the form required by this Agreement, failing any of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Takingwhich, Purchaser mayPurchaser, at its sole option option, shall be entitled to terminate this Agreement and receive a return of the ▇▇▇▇▇▇▇ Money. Notwithstanding the foregoing, if the failure of a condition precedent under this Section 4.4 was as the result of a breach of this Agreement by Seller, Purchaser shall have the remedies available to it as set forth in Section 8.1 hereof, provided, however, that if Seller notifies Purchaser pursuant to the first sentence of this Section 4.4 that a representation or warranty has changed, Purchaser may either (a) terminate this Agreement upon written notice thereof to Seller, in which case (i) terminate if such representation or warranty was untrue when made or if such representation or warranty has changed as the result of an intentional act or omission of Seller, Seller shall reimburse Purchaser for actual, documented out-of-pocket expenses incurred by Purchaser in connection with the transaction contemplated by this Contract Agreement in an amount not to exceed the sum of $100,000.00, and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contractthe ▇▇▇▇▇▇▇ Money shall be returned by the Escrow Agent to Purchaser, pay without the full purchase price without reductionconsent or joinder of Seller being required and notwithstanding any contrary instructions which might be provided by Seller, accept an assignment of Seller’s and, thereafter neither party shall have any further rights or obligations hereunder except for the Surviving Obligations, or (b) waive such matter in any condemnation award (whether received prior to or after Closing) writing and proceed to Closing; provided that, (A) Seller shall not consent to any Taking in which case such representation or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not warranty will be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award deemed to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closingmodified by such change.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Conditions Precedent to Closing. a. 10.1 The obligation obligations of Purchaser Buyer pursuant to close this Agreement shall, at the option of Buyer, be subject to the following conditions precedent:
10.1.1 No representation or warranty shall have changed prior to Closing in such a way that constitutes a Material Adverse Change and no breach by Seller of its representations and warranties hereunder shall have occurred. Seller shall not have on or prior to Closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Seller’s part as required by the terms of this Agreement.
10.1.2 There shall be expressly conditioned uponno material adverse change in the matters reflected in the Title Report, there shall not exist any material adverse encumbrance or title defect affecting the Property except for the Permitted Exceptions or matters to be satisfied at Closing, and subject toTitle Company shall be unconditionally committed to issue at Closing a Title Policy insuring fee simple title vested in Buyer, with coverage in the satisfaction full amount of the Purchase Price and showing only those exceptions to title which are Permitted Exceptions, it being acknowledged that due to the amount of coverage required hereunder, Buyer may elect by written notice delivered to Seller and Title Company prior to Closing, to require co-insurance with up to two (2) additional title companies having comparable financial strength to Title Company provided that any such co-insurance arrangement shall not delay Closing or written waiver by Purchaserresult in any additional cost to Seller.
10.1.3 Seller shall have obtained and delivered to Buyer estoppel certificates, in accordance with their respective Leases, from tenants representing seventy-five percent (75%) of each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made square feet which are leased and occupied by tenants as of the Date Effective Date, which shall include, at a minimum, estoppels from the following “Major Tenants”: Hilton Long Beach, US Customs, REMC Enterprises, Apriso, FBI, Medical Data Exchange, ACS Education Services and Ford ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and each estoppel certificate shall be executed and delivered by the certifying tenant (collectively, the “Estoppel Delivery Condition”). Unless otherwise required by the terms of any specific Leases, Seller will request estoppels from all tenants of the Property in the form attached hereto as Exhibit G. Seller will request the estoppels no earlier than sixty (60) days after the Effective Date, provided, however, no estoppel will be issued as of a date more than forty-five (45) days prior to Closing.
. Prior to delivering the estoppels to tenants for review and execution, Seller shall deliver drafts of the estoppels to Buyer for review and approval, and Buyer will have two (2) No part business days to review the draft estoppels and notify Seller of any requested corrections or additions thereto. Estoppel certificates shall be deemed to satisfy this condition precedent unless they disclose material adverse matters. Buyer shall notify Seller within three (3) business days of receipt of a copy of the Property executed estoppel certificate of its approval or disapproval and the basis of such disapproval, if disapproved and Seller shall have been acquireduse commercially reasonable efforts to satisfy the Estoppel Delivery Condition by the date which is three (3) business days prior to Closing. If Buyer disapproves of an estoppel certificate because of a material, or adverse matter disclosed therein, and Seller is unable to obtain a reasonably acceptable estoppel certificate prior to the Closing, then, at Buyer’s election, this Agreement shall terminate, Buyer shall be about entitled to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit (including the Initial Deposit and the Additional Deposit), and neither party shall have any interest earned thereon; or further obligation to the other except Buyer’s indemnification obligations under Section 5. If Buyer has not received the required amount of estoppels to satisfy the Estoppel Delivery Condition by the date which is three (ii3) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) business days prior to Closing, then Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property Buyer shall be free and clear thereof. In permitted to extend the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
Closing Date until five (5) There days after the receipt of all such estoppels, to permit Seller to secure such estoppels to meet the Estoppel Delivery Condition, but in no event shall be no unrepaired damage Seller extend Closing by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars more than thirty ($100,000.0030) ordays.
Appears in 1 contract
Conditions Precedent to Closing. a. The 3.01. Purchaser’s obligation of Purchaser to close hereunder the acquisition of the Property pursuant to this Agreement shall be expressly conditioned upon, and subject toon the following (collectively, the satisfaction “Purchaser Closing Conditions”):
(or written waiver by Purchasera) of each No material adverse change in the condition of the following conditions:Property shall have occurred since the Effective Date.
(1b) Each All of the representations or warranties Seller’s covenants and obligations contained in Section 6(a) of this Contract Agreement shall be true have been performed by Seller in all material respects as if made of Closing. All of Seller’s representations and warranties shall be true and correct in all material respects as of the Effective Date of and at Closing.
(2c) The Title Company shall be irrevocably committed to issue an owner’s title insurance policy in form and substance satisfactory to Purchaser for the ▇▇▇▇▇ Acquisition Property, which insures good and marketable fee simple title to the ▇▇▇▇▇ Acquisition Property, subject only to those exceptions permitted pursuant to Section 2 hereof.
(d) Purchaser shall have obtained all authority and approvals necessary for Purchaser, including, without limitation, all regulatory and board approvals and governmental determinations, to undertake the obligations contained herein and to consummate the Closing contemplated hereby.
(e) No part later than three (3) Business Days prior to Closing, Purchaser and Escrow Agent shall have received evidence of all required consents and approvals, if any, by Seller to the transaction contemplated herein.
(f) Seller shall have provided payment (either prior to Closing or as a disbursement on the Closing Statement out of the Property Purchase Price payable to Seller) for all Monetary Liens so that the same may be satisfied and released at or prior to Closing.
(g) Seller shall have terminated any and all leases or other occupancy agreements permitting any third party to occupy all or any portion of the Property, and Seller shall have caused any such tenants or parties in possession to vacate the Property, all at Seller’s sole cost and expense.
(h) The ▇▇▇▇▇ Acquisition Land shall have been acquiredlegally subdivided from the remainder of the Original ▇▇▇▇▇ Land (including the recording of a major or minor subdivision plat, or shall be about to be acquired as applicable) such that the ▇▇▇▇▇ Acquisition Land exists as a distinct and legal tax parcel (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “TakingSubdivision”). If such a Taking has occurred or if Purchaser, at Purchaser’s expense, shall pursue the Subdivision. Seller shall have received written notice cooperate with Purchaser’s efforts to secure the Subdivision. If any of any the above conditions precedent to Purchaser’s obligation to close has not been satisfied as of the Closing or as of the applicable due dates noted in such contemplated Takingcondition, Purchaser may, at its sole option may (i) terminate this Contract Agreement by written notice to Seller and receive a full refund of the Deposit and any interest earned thereon; ▇▇▇▇▇▇▇ Money, whereby Purchaser shall have no further obligations or liabilities under this Agreement, except as expressly set forth herein, (ii) continue this Contractextend the Closing or due date of the performance of the applicable condition by written notice to Seller for a reasonable period of time to allow for the satisfaction of the condition (and, pay the full purchase price without reductionif Purchaser requests, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closingits sole discretion, Seller and Purchaser shall provide Purchaser with enter into an opportunity amendment to participate with Seller this Agreement to evidence the extension), or (iii) waive the condition, in any negotiations relating to a Taking affecting any portion of the Property whole or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdictionpart, and any action in any court against consummate the Closing contemplated hereby. If the Purchaser elects to extend the Closing or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials due date for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purposeperformance, and at the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion end of the Propertysuch extended period of time, the estimated cost of repair of which is One Hundred Thousand Dollars applicable condition still has not been satisfied, Purchaser may elect to exercise the remedies set forth in items ($100,000.00i) oror (iii) in the immediately preceding sentence.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions Precedent to Closing. a. (a) Last Chance's Conditions Precedent. The obligation of Purchaser to close hereunder following shall be expressly conditioned uponconditions precedent to Last Chance's obligation to consummate the purchase and sale transaction contemplated herein ("Last Chance's Conditions Precedent"):
(i) All representations and warranties of PGE in Section 4 shall be true and correct as of the Closing Date and all agreements, covenants and obligations of PGE under this Agreement to be performed or complied with on or before the Closing shall have been performed or complied with and PGE shall have executed and delivered to Last Chance a certificate to that effect in the form attached as Schedule 6(a)(i) hereto ("PGE's Certificate").
(ii) PGE shall have timely delivered to Last Chance a full and accurate list and reasonably complete details concerning each item described in Section 3(c) and a copy of each document within the possession or control of PGE or any Affiliate, agent or related party of PGE.
(iii) No material breach or default by PGE shall have occurred hereunder that has not been cured to Last Chance's reasonable satisfaction. Last Chance shall provide PGE with written notice of any material breach or default by PGE promptly upon Last Chance's discovering that such breach or default exists.
(iv) The applicable waiting periods, if any, under 15 USC Section 18(a) the Hart-Scott-Rodino Antitrust Improvements Act of 1976 ("HSR Act") shall ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ been terminated.
(v) The Nevada Gaming Authorities shall have determined that Last Chance is a suitable purchaser of the Casino Operation and shall have approved the sale of the Casino Operation and shall have licensed Last Chance and those officers, directors and key employees required to be licensed by Chapter 463 of the Nevada Revised Statutes or the Nevada Gaming Authorities as a condition of commencing Casino Operations, to assume control and operation of the Casino Operation as of the Closing Date. Approvals from all other applicable counties, cities and other municipalities having jurisdiction over the gaming and liquor operations on the Premises shall have been obtained. No certificate of occupancy or any liquor or gaming license shall have been revoked or suspended by the responsible governmental agency.
(vi) The California State Lottery Commission shall have determined that Last Chance is a suitable person to acquire all of the ownership interests in and to California Prospectors Ltd., and subject to, shall have issued all licenses or approvals necessary to the satisfaction (or written waiver by Purchaser) of each continued operation of the following conditions:California Lottery Station by California Prospectors Ltd. as of the Closing Date. The Nevada Gaming Authorities shall have determined that the operation of the California Lottery Station by an Affiliate of Last Chance does not constitute an unsuitable method of operation by Last Chance as a Nevada gaming licensee. Approvals from all other Governmental Authorities having jurisdiction over the California Lottery Station shall have been obtained. No certificate of occupancy or license necessary to the operation of the California Lottery Station shall have been revoked or suspended by the responsible Governmental Authority.
(1vii) PGE shall have executed and delivered to Last Chance at the Closing the documents which it is required to execute and deliver pursuant to Section 8.
(viii) Each of the representations or warranties contained in Section 6(a) of this Contract Integrated Agreements, together with all documents required thereby, shall be true in have been executed by all material respects as if made as of the Date of parties thereto other than Last Chance and shall have been delivered to Last Chance on or before the Closing.
(2ix) No part PGE shall have delivered to Last Chance: (A) an estoppel certificate executed and acknowledged by the tenant under the Jack-in-the-Box Lease that the lease is unmodified and in full force a▇▇ ▇ffect (or that the same is in full force and effect as modified, listing the instruments of modification), the dates to which the rent and other charges have been paid, and whether, to the best of tenant's knowledge, PGE is in default under the lease (and, if so, specifying the nature of the Property default), and that the Jack-in-the Box Lease constitutes the entire agreement between PGE and ▇▇▇ tenant; and (B) an estoppel certificate executed and acknowledged by ARCO Products Company, a division of Atlantic Richfield Company, that the ARCO Petroleum Agreements are unmodified and in full force and effect (or in full force and effect as modified, listing the instruments of modification), that PGE has satisfied all payment obligations under the ARCO Petroleum Agreements which are due and payable prior to the closing(or, if in default, specifying the dates and amounts thereof) and whether, to the best of ARCO's knowledge, PGE is in default under the ARCO Petroleum Agreements (and, if so, specifying the date and nature of the default), and that the ARCO Petroleum Agreements constitute the entire agreement between PGE and ARCO.
(x) PGE shall have assigned the Equipment Leases and Contracts, the Participation Agreements, the ARCO Petroleum Agreements, the Jack-in-the-Box Lease, and Tradenames to Last Chance and shall have ob▇▇▇▇ed the written consent to assignment from each party other than PGE to all such agreements and shall have obtained from Foodmaker, Inc. and ARCO Products Company, a division of Atlantic Richfield Company, waivers of their respective rights of first refusal.
(xi) PGE shall have executed the Gold Ranch Bill of Sale and shall have delivered same to Last Chance at the Closi▇▇.
(xii) Last Chance shall have received the legal opinion of Lemons, Grundy & Eisenberg, Chartered, a Nevada professional corporation, in the form a▇▇▇▇▇▇▇ ▇ereto as Schedule 6(a)(xii).
(xiii) The Closing shall not directly or indirectly (with or without notice or lapse of time), violate, contravene, materially conflict with or result in a violation of any law and shall not violate any order or decree of any court or governmental body of competent jurisdiction, and no suit, action, proceeding or investigation shall have been acquiredbrought or threatened by any Person (other than Last Chance or an affiliate of Last Chance) which questions the validity or legality of this Agreement or the transactions contemplated hereby.
(xiv) The Casino Operation, Acquired Assets and the Premises shall be eligible for a nonrestricted gaming license and shall be exempt from the provisions of NRS 463.1605.
(xv) No actual or threatened litigation or governmental investigation or proceeding to enjoin, or challenging the asset purchase contemplated herein.
(xvi) All necessary consents shall have been delivered by PGE to Last Chance.
(xvii) PGE and the shareholders of PGE shall have entered into a Non-Compete Agreement in the form attached hereto as Exhibit 32.
(xviii) In the event that Last Chance has elected to refinance the Debt, (A) the arrangement by Last Chance, on terms satisfactory to it in its sole discretion, of the financing necessary to fund the proposed asset acquisition herein and provide for the contemplated capital needs of Last Chance after closing and (B) the payoff of all indebtedness of PGE, other than the Assumed Debt, and the release of any liens securing the indebtedness, other than debt included in Working Capital.
(xix) In the event that Last Chance has elected to assume the ARCO debt, (A) the receipt of the appropriate lender approvals and (B) the release of any liens securing the ARCO debt and the release of any guarantors of the ARCO debt.
(xx) There shall have been no material adverse change in the business or prospects of PGE.
(xxi) The receipt by Last Chance of the opinion of a financial advisor chosen by Last Chance of the fairness of the Purchase Price to Last Chance.
(xxii) The receipt by Last Chance of a CLTA preliminary title reports for the Integral Properties and Assets, excluding the real property burdened by the Sign Easement, subject only to the Approved Exceptions.
(xxiii) The execution of an employment agreement between Last Chance and Rob Medeiros in a form and substance reasonably acceptable to Last Cha▇▇▇.
(xxiv) A determination of the Common Stock Value acceptable to both Last Chance and PGE and attached as Exhibit 28 hereto.
(xxv) Delivery of the Volume of Exhibits and Schedules and Certificate of Completion. Each of Last Chance's Conditions Precedent may be about to be acquired (as evidenced waived in whole or in part by Last Chance by written notice thereof)to PGE and at Closing all Last Chance's Conditions Precedent set forth herein shall either be satisfied or so waived. PGE shall use all reasonable efforts to ensure that Last Chance's Conditions Precedent are satisfied prior to the Closing Date contemplated hereunder.
(b) PGE's Conditions Precedent. The following shall be conditions precedent to PGE's obligation to consummate the purchase and sale transaction contemplated herein (the "PGE's Conditions Precedent"):
(i) Last Chance shall have delivered the Purchase Price comprised of cash, by authority Common Stock and the Note, subject to the prorations and adjustments provided for in this Agreement.
(ii) All representations and warranties of any governmental agency Last Chance in Section 5 and The Sands Regent in Section 5A shall be true and correct as of the Closing Date and all agreements, covenants and obligations of Last Chance under this Agreement to be performed or other authority complied with on or before the Closing Date shall have been performed or complied with and Last Chance shall have executed and delivered to PGE a certificate to such effect in the exercise of its power of eminent domain form attached at Schedule 6(b)(ii) hereto ("Last Chance's Certificate").
(iii) No material breach or default by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller Last Chance shall have received occurred hereunder that has not been cured to PGE's reasonable satisfaction. PGE shall provide Last Chance with written notice of any material breach or default by Last Chance promptly upon PGE discovering that such breach or default exists.
(iv) The Closing shall not directly or indirectly (with or without notice or lapse of time), violate, contravene, materially conflict with or result in a violation of any law and shall not violate any order or decree of any court or governmental body of competent jurisdiction, and no suit, action, proceeding or investigation shall have been brought or 44 threatened by any Person (other than PGE or an affiliate of PGE) which questions the validity or legality of this Agreement or the transactions contemplated Takinghereby.
(v) The applicable waiting periods, Purchaser mayif any, under the HSR Act shall have expired or been terminated.
(vi) Last Chance shall have executed and delivered to PGE at its sole option the Closing the documents which it is required to so execute and deliver pursuant to Section 9.
(ivii) terminate this Contract and receive PGE shall have received the legal opinion of Bible, Hoy & Trachok, a full refund Nevada professional corporation in the form attached hereto as Schedule 6(b)(vii).
(viii) The Nevada Gaming Authorities shall have determined that Last Chance is a suitable purchaser of the Deposit Casino Operation and any interest earned thereon; or (ii) continue this Contract, pay shall have approved the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion sale of the Property Casino Operation and shall have licensed Last Chance and those officers, directors and key employees required to be licensed by Chapter 463 of the Nevada Revised Statutes or the Nevada Gaming Authorities, as a condition of commencing Casino Operations, to assume control and operation of the Casino Operation as of the Closing Date. Approvals from all other applicable counties, cities and other municipalities having jurisdiction over the gaming and liquor operations on the Premises shall have been obtained. No certificate of occupancy or any condemnation award liquor or gaming license shall have been revoked or suspended by the responsible governmental agency.
(ix) The California State Lottery Commission shall have determined that Last Chance is a suitable person to be made acquire all of the ownership interests in connection therewith; and to California Prospectors Ltd., and shall have issued all licenses or approvals necessary to the continued operation of the California Lottery Station by California Prospectors Ltd. as of the Closing Date. The Nevada Gaming Authorities shall have determined that the operation of the California Lottery Station by an Affiliate of Last Chance does not constitute an unsuitable method of operation by Last Chance as a Nevada gaming licensee. Approvals from all other Governmental Authorities having jurisdiction over the California Lottery Station shall have been obtained. No certificate of occupancy or license necessary to the operation of the California Lottery Station shall have been revoked or suspended by the responsible Governmental Authority.
(Cx) Seller Last Chance shall reasonably cooperate have executed and delivered to PGE at the Closing the documents which it is required to execute and deliver pursuant to Section 9.
(xi) Each of the Integrated Agreements, together with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior all documents required thereby, shall have been executed by Last Chance and shall have been delivered to PGE on or before the Closing.
(3xii) All written notices The Casino Operation, Acquired Assets and the Premises shall be eligible for a nonrestricted gaming license and shall be exempt from the provisions of violations of NRS 463.1605.
(xiii) No actual or threatened litigation or governmental orders investigation or requirements noted proceeding to enjoin, or issued by any public authority having jurisdiction, and any action in any court against or affecting challenging the Property, asset purchase contemplated herein shall have been complied with by Seller brought against Last Chance.
(xiv) Evidence reasonably satisfactory to PGE that the Debt has been or will be, at the Closing, assumed and/or refinanced.
(xv) Last Chance shall have obtained all necessary approvals to collect and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect remit sales tax to the Property prior state of Nevada and shall have arranged for unemployment insurance and workers compensation insurance to be effective immediately upon the Closing. Each of PGE's Conditions Precedent may be waived in whole or in part by PGE by written notice to Last Chance and at Closing, all corrective work required thereby PGE's Conditions Precedent set forth herein shall either be performed by satisfied or paid by Sellerso waived. The nature, extent, methods and materials for any corrective work and Last Chance shall use all reasonable efforts to ensure that such PGE's Conditions Precedent are satisfied prior to the parties performing such work shall be subject to Purchaser’s prior approvalClosing Date contemplated hereunder.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. (a) The obligation of Purchaser to close hereunder following shall be expressly conditioned upon, conditions precedent to Purchaser's obligation to consummate the purchase and subject to, the satisfaction (or written waiver by Purchaser) of each of the following conditionssale transaction contemplated herein:
(1i) Each Title Company, after performing a final “rundown” of title, will stand ready to issue at the Closing an ALTA Owner's Policy of Title Insurance on the standard form used in the State of New Jersey with liability in the full amount of the representations or Purchase Price, subject only to the Permitted Exceptions (the “Title Policy”) insuring Purchaser's interest in the Premises, dated as of the date of the Closing.
(ii) Seller’s representations, warranties contained and covenants set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made of the date of Closing;
(iii) Seller will have remediated, or caused to be remediated, the Premises to the level specified in Section 5(c) and received its Seller’s Environmental Approvals.
(iv) No pending or threatened litigation, administrative proceedings, investigations, or other form of governmental enforcement actions or proceedings exist as of the Date of Closing.
(2) No part of the Property shall have been acquired, which are related to, directed at, or shall be about to be acquired (as evidenced by written notice thereof)otherwise affecting the use, by authority operation, or occupancy of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property Premises.
(v) The issuance of all necessary approvals (if any) from the New Jersey Department of Environmental Protection and the Planning Board (including site plan approval), and the good faith and diligent review of its application for such approvals, but not in any way limiting the Planning Board from exercising its legally-authorized discretion and any additional necessary approvals from Seller for the redevelopment of the Premises in accordance with the Selected Proposal, which Purchaser shall make a good faith and diligent effort to secure. (These approvals are exclusive of those described in Section 5(c) above, which remain the sole responsibility of Seller).
(vi) To the extent necessary for Project financing, the issuance of the following: ▇▇▇▇▇▇ County Planning Board approval, Hudson-Essex & Passaic Soil Conservation District approval, NJDEP BSDW Safe Drinking Water Permit, NJDEP Treatment Works approval, which Purchaser shall make a good faith and diligent effort to secure.
(vii) Amendment to the current Redevelopment Plan to permit the Selected Proposal.
(viii) Seller has executed, and is not in default or any condemnation award breach of, a Redeveloper’s Agreement and a Financial Agreement (in forms materially consistent with Appendix G and Appendix H of the RFP).
(ix) Notwithstanding anything to the contrary in Section 4 above, Purchaser can extend the Closing Date for a period of up to six (6) months, but in no event beyond May 31, 2010, upon payment of a non-refundable extension fee of $600,000 (to be made in connection therewithprorated if extension is less than six (6) months), if:
(A) The potential of a riparian claim by the State of New Jersey to a portion of the Property exists (the “Riparian Claim”);
(B) That Riparian Claim interferes with Purchaser’s ability to secure financing to perform its obligations under this Agreement and/or its Redeveloper’s Agreement with Seller; and and
(C) Purchaser has and is diligently using its best efforts to clear title from such the Riparian Claim. In connection with the foregoing, Seller shall reasonably cooperate with and assist Purchaser before and after the Closing with Purchaser’s efforts to remove and/or settle the Riparian Claim in prosecuting any claim for a condemnation award arising prior to Closing.accordance with the terms and conditions set forth in that certain Cost Allocation and Cooperation Agreement attached hereto as Exhibit D.
(3b) All written notices The conditions set forth in Section 6(a) above are solely for the benefit of violations Purchaser and, if not satisfied as of governmental orders or requirements noted or issued by any public authority having jurisdictionthe Closing Date (as defined below), and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalthe remedies set forth in Section 15(b) below.
(4c) The Property following shall possess all clearances, permits, occupancy certificates, licenses be conditions precedent to Seller's obligation to consummate the purchase and registrations necessary for its intended purposesale transaction contemplated herein:
(i) Purchaser has executed, and is not in default or breach of, a Redeveloper’s Agreement and a Financial Agreement (in forms materially consistent with Appendix G and Appendix H of the same shall be in full force and effect, in good standing and not subject to any known or threatened challengeRFP).
(5ii) There shall be no unrepaired damage by fire No pending or threatened litigation, administrative proceedings, investigations, or other casualty to form of governmental enforcement actions or proceedings exist as of the Closing, which are related to, directed at, or otherwise affecting the use, operation, or occupancy of any portion of the PropertyPremises.
(d) The conditions set forth in Section 6(c) above are solely for the benefit of Seller and, if not satisfied as of the estimated cost of repair of which is One Hundred Thousand Dollars Closing Date ($100,000.00as defined below), shall be subject to the remedies set forth in Section 15(a) orbelow.
Appears in 1 contract
Conditions Precedent to Closing. a. Conditions Precedent to the Purchaser's Obligations to Perform. The Purchaser's obligation of Purchaser under this Agreement to close hereunder shall be expressly conditioned upon, and purchase the Properties is subject to, to the satisfaction (or written waiver by Purchaser) fulfillment of each of the following conditions:
: (1i) Each of the representations or and warranties of each Seller contained in Section 6(a) of this Contract herein shall be true in all material respects as if made materially true, accurate and correct as of the Closing Date except to the extent they relate only to an earlier date; (ii) the Sellers shall be ready, willing and able to deliver title to the Properties in accordance with the terms and conditions of this Agreement; (iii) any conditions precedent to the Purchaser's obligation to purchase the Property which is validly listed in the Purchaser's Termination Notice as being unsatisfied has been satisfied; and (iv) the Sellers shall have delivered all the documents and other items required pursuant to Section 8, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the Sellers at or prior to the Closing.
(2) No part . Conditions Precedent to the Sellers' Obligations to Perform. The Sellers' obligation under this Agreement to sell the Property to the Purchaser is subject to the fulfillment of each of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option following conditions: (i) terminate this Contract the representations and receive a full refund warranties of the Deposit Purchaser contained herein shall be materially true, accurate and any interest earned thereoncorrect as of the Closing Date; or (ii) continue the Purchaser shall have delivered the funds required hereunder and all the documents to be executed by the Purchaser set forth in Section 9 and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Contract, pay Agreement to be performed or complied with by the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received Purchaser at or prior to or after the Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (Ciii) Seller the additional matters set forth in Schedule 11 annexed hereto and made a part hereof shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising have occurred or been delivered to the Sellers, as applicable, at or prior to the Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. Remedies Upon Failure to Satisfy Conditions. In the event that any notices condition contained in Sections 13.1 or 13.2 is not satisfied, the party entitled to the satisfaction of violations such condition as a condition to its obligation to close title shall have as its sole remedy hereunder the right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement or (ii) proceed as provided in Section 14 hereof. Remedies. Sellers' Inability to Perform. If the Closing fails to occur by reason of the Sellers' inability to perform its obligations under this Agreement (i.e., the terms and conditions of any of Section 4.2, 5.3, 6.2, or 12.3 direct the application of the provisions of this Section 14.1 have occurred or any Seller is otherwise unable after the exercise of good faith efforts to perform its obligations or covenants hereunder) which has not been waived pursuant to Section 13.3, then the Purchaser, as its sole remedy for such inability of the Sellers, may terminate this Agreement by notice to the Sellers. If the Purchaser elects to terminate this Agreement, then this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except as otherwise expressly provided herein (collectively, the "Surviving Obligations"), and except that the Purchaser shall be entitled to a return of the Deposit provided the Purchaser is not otherwise in default hereunder within six months of such termination date, subject to the terms and provisions of Section 23 hereof. Except as set forth in this Section 14.1, the Purchaser hereby expressly waives, relinquishes and releases any other right or remedy available to it at law, in equity or otherwise by reason of the Sellers' inability to perform its obligations hereunder. Notwithstanding anything to the contrary herein, if the Sellers' inability to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Purchaser or any of the Purchaser's Representatives, the Purchaser shall not be relieved of its obligations under this Agreement and Purchaser shall not be entitled to any right or remedy provided in this Section 14.1 or elsewhere in this Agreement. Purchaser's Failure to Perform. In the event of a default hereunder by the Purchaser or if the Closing fails to occur by reason of the Purchaser's failure or refusal to perform its obligations hereunder, then the Sellers may terminate this Agreement by notice to the Purchaser. If the Sellers elect to terminate this Agreement, then this Agreement shall be terminated and, as its sole remedy for the Purchaser's failure or refusal to complete the Closing or perform its obligations hereunder (except for the Surviving Obligations), the Sellers may retain the Deposit as liquidated damages for all loss, damage and expenses suffered by the Sellers, it being agreed that the Sellers' damages are issued impossible to ascertain, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. Nothing contained herein shall limit or restrict the Sellers' ability to pursue any rights or remedies it may have against the Purchaser with respect to the Property prior Surviving Obligations. Except as set forth in this Section 14.2 and the Surviving Obligations, the Sellers hereby expressly waive, relinquish and release any other right or remedy available to Closingthem at law, all corrective work required thereby in equity or otherwise by reason of the Purchaser's default hereunder or the Purchaser's failure or refusal to perform its obligations hereunder. Notwithstanding anything to the contrary herein, if the Purchaser's default or the Purchaser's failure or refusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Sellers or any of the Sellers' Affiliates, the Sellers shall not be relieved of its obligations under this Agreement and the Sellers shall not be entitled to any right or remedy provided in this Section 14.2 or elsewhere in this Agreement. Sellers' Failure to Perform. If the Closing fails to occur by reason of any of the Sellers' failure or refusal to perform its obligations hereunder which has not been waived by the Purchaser, then the Purchaser, as its sole remedy hereunder, may (i) terminate this Agreement by notice to the Sellers or (ii) seek specific performance from the Sellers. As a condition precedent to the Purchaser exercising any right it may have to bring an action for specific performance as the result of any of the Sellers' failure or refusal to perform their obligations hereunder, the Purchaser must commence such an action within ninety (90) days after the occurrence of such default. The Purchaser agrees that its failure to timely commence such an action for specific performance within such ninety (90) day period shall be performed deemed a waiver by it of its right to commence such an action. Notwithstanding anything to the contrary herein, if any of the Sellers' failure or paid by Sellerrefusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Purchaser or any of the Purchaser's Representatives, the Purchaser shall not be relieved of its obligations under this Agreement and Purchaser shall not be entitled to any right or remedy provided in this Section 14.3 or elsewhere in this Agreement. Escrow. The natureEscrow Agent shall hold the Downpayment and all interest accrued thereon, extentif any (collectively, methods the "Deposit") in escrow and materials for any corrective work shall dispose of the Deposit only in accordance with the provisions of that certain Escrow Agreement of even date herewith by and among the Escrow Agent, the Purchaser and the parties performing such work Sellers relating to the Properties (the "Escrow Agreement") in the form of Exhibit I hereto, subject to the terms and conditions of Section 23 hereof. Simultaneously with their execution and delivery of this Agreement, the Purchaser and the Sellers shall furnish the Escrow Agent with their true Federal Taxpayer Identification Numbers so that the Escrow Agent may file appropriate income tax information returns with respect to any interest earned on or credited to the Deposit. The party entitled to the economic benefit of the Deposit representing interest earned on the Downpayment shall be subject to Purchaser’s prior approval.
(4) the party responsible for the payment of any tax due thereon. The Property provisions of the Escrow Agreement shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, survive the termination of this Agreement and the same shall be in full force and effect, in good standing and not subject to any known or threatened challengeClosing.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (Dean Witter Realty Income Partnership Iii Lp)
Conditions Precedent to Closing. a. The obligation of Purchaser to close hereunder following shall be expressly conditioned upon, conditions precedent to Purchaser's obligation to consummate the purchase and subject to, sale transaction contemplated herein (the satisfaction (or written waiver by "Purchaser) of each of the following conditions:'s Conditions Precedent"):
(1i) Each of Purchaser shall not have terminated this Agreement in accordance with the representations or warranties contained in Section 6(a) terms of this Contract shall be true Agreement within the time periods described in all material respects as if made as of the Date of Closingthis Agreement.
(2ii) No part Title Company shall stand ready to issue, at the Closing, a Standard ALTA Owner's Policy of title insurance, with extended coverage over the standard exceptions, insuring Purchaser's fee simple interest in the Real Property, dated the day of the Property shall have been acquiredClosing, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority with liability in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund amount of the Deposit and any interest earned thereon; or Purchase Price, subject only to the Permitted Exceptions, together with such endorsements as Purchaser may reasonably require (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed"Title Policy"); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3iii) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalIntentionally Deleted.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5iv) There shall be no unrepaired damage by fire material breach of any of Seller's representations, warranties or other casualty to any portion covenants set forth in Section 6 and Section 9 of this Agreement as of the PropertyClosing.
(v) Seller shall have delivered to the Title Company the items described in Section 10. The conditions set forth in this Section 8(a) are solely for the benefit of Purchaser and may be waived only by Purchaser. Purchaser shall, at all times prior to the termination of this Agreement, have the right to waive any of these conditions. If any of the Purchaser's Conditions Precedent are not satisfied by Closing, Purchaser at its option may terminate this Contract. In such event, the estimated cost Deposit shall be immediately returned to Purchaser and neither party shall have any further rights or obligations under this Agreement, except for those obligations that are to survive the termination of repair this Agreement, as expressly set forth elsewhere in this Agreement, provided, that if such failure of which condition is One Hundred Thousand Dollars ($100,000.00) orcaused by a Seller default, Purchaser may pursue its remedies under Section 16 below.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Golden Enterprises Inc)
Conditions Precedent to Closing. a. 12.1 The obligation obligations of Purchaser RM to close hereunder deliver title to the Real Property and to perform the other covenants and obligations to be performed by RM on the Closing Date shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of to the following conditions:conditions (all or any of which may be waived, in whole or in part, by RM):
(1a) Each of the The representations or and warranties contained in Section 6(a) of this Contract made by CRLP and Cali herein shall be true and correct in all material respects with the same force and effect as if though such representations and warranties had been made on and as of the Date Closing Date; provided, however, that a failure of Closingany representations or warranties to be true and correct in all material respects shall not give rise to a claim by RM hereunder so long as such matters do not have a material adverse effect on the transactions contemplated herein. For the purposes of the Closing condition described in this Section 12.1(a), any limitation to the knowledge, best knowledge, or actual knowledge in any representation, warranty, covenant or agreement made by CRLP or Cali herein shall be inapplicable.
(2b) No part CRLP and Cali shall have executed and delivered to RM all of the Property documents provided herein for said delivery.
(c) Cali or CRLP shall have offered employment to the persons set forth on Schedule 12.1(c)(i), provided that the aggregate salaries and benefits of such employees are in accordance with a budget for general and administrative expenses agreed upon by RM and Cali and/or CRLP, as set forth on Schedule 12.1(c)(ii) annexed hereto. Such employees who accept the offer shall be considered new Cali employees ("New Cali Employees"). RM shall not have the right to allocate among the New Cali Employees any of the salaries and benefits offered to those employees of RM who do not become New Cali Employees. Schedule 12.1(c)(iii) shall identify the persons, if any, who are not expected to be actively-at-work on the Closing Date, provided, however, that New Cali Employees who on the Closing Date are on vacation or not at work due to a scheduled day off or a short term illness not expected to last more than five (5) days shall be considered actively-at-work for purposes of Schedule 12.1 (c)(iii).
(d) Deleted prior to execution.
(e) Cali and CRLP shall have performed all covenants and obligations undertaken by Cali and CRLP herein in all respects and complied with all conditions required by this Agreement to be performed or complied with by them on or before the Closing Date.
(f) The Board shall have been acquiredexpanded by the addition of four (4) members (i) two of whom shall have been designated by the current members of the Board and who shall be independent of control of Cali and (ii) two of whom shall have been designated by RM and each of whom shall have been appointed to three year terms.
(g) Cali shall have elected to be taxed as a REIT in its most recent federal income tax return, and shall be in compliance with all applicable laws, rules and regulations, including the Code, necessary to permit it to be taxed as a REIT. Cali shall not have taken any action or have failed to take any action which would reasonably be expected to, alone or in conjunction with any other factors, result in the loss of its status as a REIT for federal income tax purposes.
(h) Cali shall have issued an aggregate amount of 400,000 warrants ("Warrants") to ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇, inclusive of allocations to the Warrant Transferees, which Warrants shall be substantially in the form of Exhibit 12.1(h) hereto.
12.2 The obligations of Cali and CRLP to accept title to the Property and Cali and CRLP's obligation to perform the other covenants and obligations to be performed by Cali and CRLP on the Closing Date shall be subject to the following conditions (all or any of which may be waived, in whole or in part, by Cali or CRLP):
(a) The representations and warranties made by RM herein shall be true and correct in all material respects with the same force and effect as though such representations and warranties had been made on and as of the Closing Date; provided, however, that a failure of a representation or warranty to be true and correct in all material respects shall not give rise to a claim by Cali or CRLP hereunder so long as such matters do not have a material adverse effect on the transactions contemplated herein. For the purposes of the Closing condition described in this Section 12.2(a), any limitation to the knowledge, best knowledge, or actual knowledge in any representation, warranty, covenant or agreement made by RM herein shall be about inapplicable.
(b) RM shall have performed all covenants and obligations undertaken by RM herein in all respects and complied with all conditions required by this Agreement to be acquired performed or complied with by it on or before the Closing Date.
(c) The Title Company is unconditionally prepared to issue to CRLP a Title Policy meeting the requirements set forth in Section 4 hereof for an "insurable title".
(d) Teachers and CRLP shall have entered into such documents as evidenced by written notice thereof), by authority shall be acceptable to each of any governmental agency or other authority the parties for the restructure of the Teachers Mortgage with an outstanding principal balance of at least One Hundred Eighty Five Million Two Hundred Fifty Thousand ($185,250,000) Dollars and on substantially the terms and conditions set forth (i) on Exhibit 12.2(d) and (ii) in the exercise of its power of eminent domain or documents delivered to CRLP by private purchase in lieu thereof Teachers prior to the date hereof.
(a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Takinge) In regard to the Stamford Executive Park, Purchaser mayRM shall, prior to the Closing, at its sole option (i) terminate this Contract cost and receive a full refund of expense, comply with the Deposit and any interest earned thereon; or (ii) continue this ContractConnecticut Transfer Act, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orConn. Gen.
Appears in 1 contract
Sources: Contribution and Exchange Agreement (Cali Realty Corp /New/)
Conditions Precedent to Closing. a. The 5.1 Purchaser’s obligation of Purchaser to close hereunder shall be expressly conditioned upon, and purchase the Property is subject to, to the satisfaction (or written waiver by Purchaser) of each , of the following conditionsconditions prior to Closing:
(1a) Each Seller is able to convey to Purchaser good and marketable title to the Property and the Improvements by good and sufficient general warranty deed (the “Deed”) satisfactory to Purchaser, subject to the Permitted Exceptions.
(b) The representations, warranties and covenants of the representations or warranties contained in Section 6(a) of this Contract Seller herein shall be true and correct in all material respects on the date of this Agreement and on the Closing Date as if each were made as of again at such time, subject to 6.3, and Seller shall have complied fully with all agreements to be performed by it at or prior to the Date of ClosingClosing Date.
(2c) No part suit, action or proceeding shall have been instituted to restrain or prohibit the acquisition by Purchaser or the transfer by Seller of the Property Rights in accordance with the terms of this Agreement, nor shall any action, suit or proceeding have been acquiredinstituted or be pending against or affecting Purchaser, Seller, or the Property Rights.
(d) The Property shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise same condition and repair, less ordinary wear and tear, as it was on the date of its power this Agreement, except for matters related to condemnation and/or casualty, which shall be governed by Article X of eminent domain or by private purchase in lieu thereof this Agreement.
(a “Taking”). If such a Taking has occurred or if e) Seller shall have received written notice furnished to Purchaser or Title Company the Deed and all other documents to be executed and/or delivered by Seller under this Agreement and shall have observed and performed all other material obligations of any Seller under this Agreement.
(f) Seller shall have furnished to Purchaser, Title Company, or Lender, in a form reasonably acceptable to Purchaser, such contemplated Takingother commercially reasonable documents as are necessary for Closing or assuming the Loan.
(g) Estoppel certificates, in the form of Exhibit C, or in such other form as may be required by a particular Lease, executed by each Tenant under the Leases (the “Estoppel Certificates”) shall be delivered to Purchaser may, at its sole option least five (5) days prior to the Closing Date.
(h) The Title Company irrevocably commits to issue the Owner’s Policy subject only to the Permitted Exceptions and containing the Special endorsements.
(i) terminate this Contract and receive a full refund All Certificates of Occupancy for spaces within the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to ClosingImprovements have been issued.
(3j) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdictionPurchaser shall have received an REA Estoppel (the “REA Estoppel”) in the form and substance reasonably acceptable to Purchaser from all parties to all restrictions and easements agreements, operating and easement agreements, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices other similar agreements of violations are issued record with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and (collectively the parties performing such work shall be subject to Purchaser’s prior approval“REA’s”).
(4k) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same Leases shall be in full force and effect, in good standing effect and not subject to any known or threatened challengethere shall be no default thereunder.
(5l) There shall be no unrepaired damage by fire or other casualty to any portion material adverse change after the Effective Date in the financial condition of the PropertyTenants nor shall have any of the Tenants closed or vacated their premises.
(m) At least eighty-five percent (85%) of the gross leaseable area of the Improvements shall be leased to Tenants under Leases which Tenants are in occupancy, the estimated cost paying full rent, open for business and hold a valid certificate of repair of which is One Hundred Thousand Dollars ($100,000.00) oroccupancy for such space.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Inland American Real Estate Trust, Inc.)
Conditions Precedent to Closing. a. 8.01. The obligation obligations of Purchaser Highwoods to close purchase the Property from Owner and meet its other obligations hereunder shall be expressly conditioned uponsubject to the following conditions precedent, any of which may be waived by Highwoods in writing at the Closing:
(a) All of the representations and warranties of Owner made herein shall be true and correct in all material respects as of the Closing ("actual knowledge" or the "best knowledge" of Owner as set forth in said representations and warranties, for the purposes of this subparagraph 8.01 only, shall be deemed to include knowledge acquired by Owner subsequent to the date hereof and prior to Closing).
(b) Owner's obligations with respect to the Property as set forth herein shall have been performed.
(c) Title to the Property must be insurable in accordance with the Title Commitment, with no exceptions to title other than the Permitted Exceptions, and Highwoods must be able to obtain a title insurance policy from the Title Company in accordance with such Title Insurance Commitment with payment of only standard title insurance premiums.
(d) The Property must be in the same condition as of the date of this Agreement, ordinary wear and tear excepted, and subject toto the specific provisions set forth herein related to condemnation and casualty.
(e) Owner shall have delivered to Highwoods tenant estoppel certificates in the form attached hereto as EXHIBIT H (or in the form attached to any Lease and made a part thereof, provided such form has been approved by Highwoods) dated not more than thirty (30) days prior to Closing from tenants occupying 80% of the net rentable space in the Building. Owner agrees to send estoppel certificates to all tenants of the Property and request that the same be completed and returned to Owner for delivery to Highwoods. If Highwoods has not received satisfactory estoppel certificates from tenants occupying at least 80% of the net rentable space in the Buildings on or before Closing, then Highwoods may terminate this Agreement, but except for such termination, Highwoods shall have no further remedy against Owner for the failure of the condition precedent set forth in this Subsection 8.01(e). If Highwoods does not so terminate this Agreement, then the condition precedent set forth in this Subsection 8.01(e) shall be deemed waived and of no further force or effect.
(f) All management fees due any property manager of the Property, and leasing commissions due arising out of any leases of the Property (even if such commissions are due over time after the Closing) shall be paid in full by Owner at Closing.
(g) No Tenant of 5% or more of the leasable space in any Building shall have become a debtor in a proceeding under Title 11 of the United States Bankruptcy Code or, the subject of any other insolvency proceeding, including state receivership proceedings or a proceeding for the assignment for the benefit of creditors under any state law.
(h) Highwoods shall have received a fully-executed, full service lease between Seller and Branch Banking and Trust Co. on terms acceptable to Highwoods, including without limitation, a new minimum lease term of five (5) years (the "BB&T Lease"). Highwoods shall have seven (7) business days to review and approve or disapprove the provisions of the BB&T Lease. If Highwoods has not objected to any provision of the BB&T Lease within seven (7) days after delivery thereof to Highwoods, then in such event Highwoods shall be deemed to have approved the BB&T Lease.
(i) Highwoods Investment Committee shall have approved this transaction, with said approval to have been given prior to the end of the Inspection Period. In the event any of the aforesaid conditions precedent are not fulfilled, Highwoods may only (i) terminate its obligations hereunder, (ii) waive any such failure and close in accordance with the terms hereof, or (iii) require Owner to use its best efforts to perform its obligations as elsewhere set forth herein and as limited by other provisions of this Agreement.
8.02. The obligations of Owner under this Agreement are subject to the satisfaction (or written waiver by Purchaser) of each of the following conditions:
conditions on or before the Closing Date, any of which may be waived by Owner, and Highwoods agrees to cause the conditions described in clauses (1a) Each and (b) below to be so satisfied: (a) all the terms, covenants, and conditions of this Agreement to be complied with and performed by Highwoods on or before the Closing Date shall have been duly complied with and performed in all respect; (b) the representations or and warranties of Highwoods contained in Section 6(a) of this Contract Agreement shall be true and correct in all material respects at and as if of the Closing Date with the same force and effect as though such representations and warranties had been made as of the Date of Closing.
(2) No part of the Property shall Closing Date, except for any changes which have been acquired, disclosed to Owner in writing and expressly approved or shall be about to be acquired (as evidenced waived by written notice thereof), by authority of any governmental agency or other authority Owner in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereonwriting; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orand
Appears in 1 contract
Sources: Contract of Sale and Purchase (Yager Kuester Public Fund 1986 Limited Partnership)
Conditions Precedent to Closing. a. The obligation of A. Purchaser shall not be required to close hereunder shall be expressly conditioned upon, and subject to, proceed on the satisfaction (or written waiver closing date with the transaction contemplated by Purchaser) of this Agreement unless each of the following conditionsconditions precedent shall have been fulfilled and satisfied:
i. Each of the warranties, representations and covenants of Seller contained herein shall be true, valid and correct.
ii. Seller shall have complied with the covenants herein.
iii. There shall have been delivered by Seller to Purchaser all of the items in Seller’s possession required to be delivered to Purchaser pursuant subparagraph v below.
iv. Upon execution of the within Agreement, Purchaser, at its sole expense, shall obtain an Environmental Report, commonly known as a Phase 1, for the Subject Premises and, based upon said Environmental Report, may declare this Agreement, within the Inspection Period, null and void if said Report shall be unsatisfactory to Purchaser in Purchaser’s sole and absolute discretion.
v. Upon execution of this Agreement, Seller shall furnish Purchaser with a copy of all engineering and site plans, surveys, resolutions and any and all governmental approvals and permits with respect to the property that are in Seller’s possession.
vi. Purchaser, in Purchaser’s sole and absolute discretion, shall satisfy itself as to the zoning and other ordinances of the Township of Wall with respect to the Intended Purpose indicated hereinabove within the initial ninety (90) days and any extension thereof after execution of the within Agreement, the due diligence period. Notwithstanding what is contained in Paragraph 5A, the ninety (90) day due diligence time period for i through vi shall commence on that date upon which all of those items to be delivered to Purchaser by Seller in subparagraph 5A(v) shall have been delivered to Purchaser at its offices in Wall Township, New Jersey, and evidenced by an acknowledgment by Purchaser that it has received all of those items requested, in Purchaser’s sole and absolute discretion. In the event that, after due diligence by the Purchaser, one or more conditions, (1) Each of the representations or warranties contained in Section 6(athrough (vi) of this Contract shall be true in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquiredabove, are not fulfilled, or shall be about to be acquired (as evidenced by written notice thereof)waived, by authority of any governmental agency or other authority in within the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Takingtime periods set forth, then the Purchaser may, at its sole option (i) terminate any time thereafter, elect, by written notice to the Seller, to cancel this Contract Agreement, and receive a full refund the $200,000 deposit shall be promptly returned to Purchaser minus $1,000 for each extension received by the Purchaser. Failing to immediately return the deposit monies to the Seller, the terms of the Deposit Note and any interest earned thereon; or (ii) continue this Contractmortgage shall commence. This Agreement shall then be deemed to be null and void, pay the full purchase price without reduction, accept an assignment and of Seller’s rights in any condemnation award (whether received prior to or after Closing) no further force and proceed to Closing; provided that, (A) effect.
B. Seller shall not consent be required to any Taking or agree to any condemnation award without proceed on the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser closing date with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion the transaction contemplated by this Agreement unless each of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, following conditions precedent shall have been complied with by Seller fulfilled and satisfied.
i. Each of the Property warranties, representations and covenants of Purchaser contained herein shall be free true, valid and clear thereofcorrect.
ii. There shall be delivered by Purchaser to Seller all of the items to be delivered to Seller hereunder at or prior to the closing. In the event that one or more of the foregoing conditions is not fulfilled, or waived, within the time periods set forth, then the Seller may, at any notices of violations are issued with respect time thereafter, elect, by written notice to the Property prior Purchaser, to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purposecancel this Agreement, and the same $200,000. deposit shall be in full promptly returned to Purchaser minus $1,000 for each extension received by the Purchaser. Failing to immediately return the deposit monies to the Seller, the terms of the note and mortgage shall commence. This Agreement shall then be deemed to be null and void, and of no further force and effect, . Each party shall have recourse to all remedies available to it at law or in good standing and not subject to any known or threatened challengeequity.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Real Estate Purchase Agreement (Coates International LTD \De\)
Conditions Precedent to Closing. a. The (a) Buyer’s obligation of Purchaser to close hereunder shall be expressly conditioned upon, and subject to, purchase the satisfaction (or written waiver by Purchaser) of Premises is contingent upon each of the following conditionsconditions precedent being satisfied or waived in writing by Buyer:
(1i) Each Title to the Premises shall be free and clear of all encumbrances or defects other than Permitted Encumbrances;
(ii) Buyer’s ability to obtain an owner’s title insurance policy in the full amount of the representations or warranties contained in Section 6(aPurchase Price from a title insurance company (the “Title Company”) of this Contract shall be Buyer’s choice, at standard rates, insuring Buyer’s title and interest in the Real Property and the Building, free and clear of all liens, encumbrances and exceptions except the Permitted Encumbrances;
(iii) All of Seller’s representations and warranties are true and correct in all material respects as if made on and as of the Date Closing Date;
(iv) Seller has performed all of Closingits covenants, agreements and obligations under this Agreement;
(v) Seller shall have delivered all documentation it is required to deliver pursuant to the provisions of Section 10(a), below; and
(vi) There shall have been no fire or casualty affecting the Premises which would enable Buyer to cancel this Agreement in accordance with the terms hereof. If Seller is unable to satisfy all of the foregoing conditions precedent, Buyer may waive one or more conditions precedent or terminate this Agreement, in either event by written notice to Seller within ten (10) business days of the discovery Seller’s inability to satisfy the subject condition. If Buyer elects to terminate this Agreement pursuant to this Paragraph 6, Buyer shall be entitled to a return of the Deposit by Escrow Agent whereupon all rights and liabilities of the parties hereto by reason of this Agreement (except those obligations and liabilities specifically set forth herein to survive termination) shall be deemed at an end, except that nothing herein contained shall relieve Seller from liability hereunder for breaches of any conditions which also constitute covenants.
(2b) No part The obligation of Seller to sell the Premises and close the transactions contemplated by this Agreement shall be subject to timely satisfaction or waiver of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option following conditions precedent:
(i) terminate this Contract Each representation and receive a full refund warranty of Buyer contained herein shall be true and correct in all material respects as if made on and as of the Deposit and any interest earned thereon; or Closing Date.
(ii) continue Buyer shall have timely delivered to Escrow Agent the balance of the Purchase Price, subject to adjustments and prorations pursuant to Section 5 above and all other closing deliveries required under Section 10(b).
(iii) Buyer shall not then be in default of any covenant or agreement to be performed by Buyer under this Contract, pay Agreement. Seller may waive any of the full purchase price without reduction, accept an assignment of Seller’s rights conditions set forth in any condemnation award (whether received prior to or after Closingthis Section 6(b) and proceed to the Closing; provided that. If the conditions set forth in this Section 6(b) are not satisfied by Buyer, (A) Seller or waived by Seller, then this Agreement shall not consent to any Taking or agree to any condemnation award without terminate, the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to ClosingDeposit, Seller shall provide Purchaser together with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property all interest accrued thereon shall be free and clear thereof. In the event that any notices of violations are issued with respect paid to the Property prior to ClosingSeller, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing shall have no further obligations to each other except for such work shall be subject to Purchaser’s prior approvalprovisions that specifically survive the termination of this Agreement.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
9.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquireddate hereof, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent have on or prior to closing, failed to meet, comply with or perform in any Taking material respect any conditions or agree to any condemnation award without agreements on Seller's part as required by the prior written consent terms of Purchaser (which consent this Agreement.
9.2. There shall be no change in the matters reflected in the Title Report, and there shall not exist any encumbrance or title defect affecting the Property not described in the Title Report except for the Permitted Exceptions or matters to be unreasonably withheld or delayed); satisfied at closing.
9.3. Unless Seller receives notice from Buyer at least thirty (B30) days prior to Closingclosing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking effective as of closing, the management agreement affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free terminated by Seller and clear thereofany and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.4. In Seller shall have operated the event that Property from and after the date hereof in substantially the same manner as prior thereto.
9.5. If any notices such condition is not fully satisfied by closing, Buyer shall so notify Seller and may terminate this Agreement by written notice to Seller whereupon this Agreement may be canceled, upon return of violations are issued with respect the Due Diligence Items the Deposit shall be paid to Buyer and, thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder.
9.6. If Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this paragraph, Seller may, within five (5) days of receipt of Buyer's Notices agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be obligated to close the transaction provided Seller so satisfies such condition. If Seller fails to agree to cure or fails to cure such condition by the Closing Date, this Agreement shall be canceled and the Deposit shall be returned to Buyer and neither party shall have any further liability hereunder.
9.7. If Buyer's acquisition of the Property is part of a tax-deferred exchange pursuant to Section 1031 of the Code, it is a condition precedent to the Property prior closing of this Escrow that Buyer is able to Closingcomplete an exchange for all or a portion of its relinquished property pursuant to an Exchange Agreement between Buyer and Accommodator. Seller agrees to execute such documents or instruments as may be necessary or appropriate to evidence such exchange, all corrective work required thereby provided that Seller's cooperation in such regard shall be performed at no additional cost, expense, or liability whatsoever to Seller, and that no additional delays in the scheduled Close of Escrow are incurred unless mutually agreed upon by or paid by Sellerall parties to this Agreement. The natureobligations of Seller pursuant to this Agreement shall, extentat the option of Seller, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s the following conditions precedent:
9.8. All of the representations, warranties and agreements of Buyer set forth in this Agreement shall be true and correct in all material respects as of the date hereof, and Buyer shall not have on or prior approvalto closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer's part as required by the terms of this Agreement.
(4) 9.9. The Property shall possess Lender has approved the Loan Assumption on terms which release the Seller and all clearances, permits, occupancy certificates, licenses and registrations necessary current guarantors from liability for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challengeLoan.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation closing of the transaction contemplated by this Agreement and all the obligations of Purchaser under this Agreement are subject to close hereunder shall be expressly conditioned uponfulfillment, and subject toon or before the Closing Date, the satisfaction (or written waiver by Purchaser) of each of the following conditions:conditions precedent (“Conditions Precedent”):
(1) Each a. The status and marketability of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Closing.
(2) No part of the Property title shall have been acquired, or established to Purchaser's satisfaction in accordance with Section 3.
b. Purchaser shall have successfully closed on the transactions contemplated by the Asset Purchase Agreement.
c. Seller and Classic shall have executed the Termination Agreement related to the Lease as set forth in the Asset Purchase Agreement and delivered a copy of the same to Purchaser.
d. Purchaser shall be about to be acquired (as evidenced by written notice thereof), by authority satisfied with the results of any governmental agency or other authority in the exercise Purchaser’s Inspections of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to in Purchaser’s prior approvalsole discretion.
(4) e. The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion condition of the Property, the estimated cost Personal Property, and the Improvements shall be acceptable to Purchaser upon inspection by Purchaser on the day prior to the Closing Date.
f. The representations and warranties made by Seller in Section 8 shall be correct as of repair the Closing Date with the same force and effect as if such representations and warranties were made at such time.
g. Any assignee of which Purchaser shall have executed a resolution authorizing and approving the purchase of the Property as evidenced by this Agreement.
h. Purchaser shall have received all necessary governmental and other approvals, licenses, and permits for Purchaser’s intended use and operation of the Property as an adult entertainment business serving alcohol.
i. Purchaser shall have obtained a current letter from the zoning and planning department of the City of Minneapolis setting forth the zoning code affecting the Property and stating that the Property is One Hundred Thousand Dollars in conformity with all applicable zoning, building and subdivision laws. Purchaser may acknowledge satisfaction or waiver of any of the Conditions Precedent, only by delivering written notice of satisfaction or waiver to Seller on or before the close of business on the last day of the Inspection Period. If Purchaser does not acknowledge in writing the satisfaction of the Conditions Precedent ($100,000.00or otherwise waive the same in writing) oron or before the close of business on the last day of the Inspection Period then, this Agreement shall automatically be deemed to be terminated, without action required of either party, the ▇▇▇▇▇▇▇ Money (and all accrued interest) shall be returned to Purchaser, and Purchaser and Seller shall thereafter be released from any liability or obligation hereunder.
Appears in 1 contract
Sources: Real Estate Purchase Agreement (Ricks Cabaret International Inc)
Conditions Precedent to Closing. a. The obligation of Purchaser the City to close hereunder shall be expressly conditioned upontransfer fee or leasehold title, and subject toas applicable, to the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquiredConveyed Property, or shall be about portion thereof, following receipt of a Notice to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued Proceed hereunder with respect to the Horizontal Infrastructure Improvements, the Vertical Infrastructure Improvements, or any Developer Improvement is subject to satisfaction of the following conditions on or before the Closing Date with respect to each Component, as applicable:
(a) The Developer or applicable Developer Subsidiary shall have secured 100% approved civil site plans which are consistent with the Master Development Plan, as it may be amended from time to time in accordance with this Agreement, for the portion of the Conveyed Property prior being conveyed that are sufficient for the commencement of construction under applicable law;
(b) The Developer and/or a Developer Subsidiary, as applicable, have obtained all building permits and all other applicable governmental approvals, including but not limited to Closing, all corrective work any approvals required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work SJRWMD and the parties performing such work shall be subject FDEP to Purchaser’s prior approval.commence construction of the applicable Component (excluding any Tenant Improvements);
(4c) The Property City and the Developer and/or a Developer Subsidiary, as applicable, have executed and delivered all documents to be executed at the Closing (the “Closing Documentation”) required in connection with the Horizontal Infrastructure Improvements, the Vertical Infrastructure Improvements, or the Developer Improvement, as applicable, pursuant to this ARTICLE VI;
(d) The City shall possess have received a legal opinion from outside counsel to the Developer regarding such matters as City shall reasonably request including the due execution and authorization of this Agreement and all clearancesClosing Documentation by the Developer and any Developer Subsidiary, permits, occupancy certificates, licenses and registrations necessary for its intended purposeas applicable, and the same shall be in full force enforceability of this Agreement and effectthe Closing Documentation against the Developer and any Developer Subsidiary, as applicable, in good standing and not subject to any known or threatened challenge.accordance with its terms; and
(5e) There The City shall be no unrepaired damage by fire or other casualty to any portion have received the Completion Guaranty from each of the Property, Guarantors prior to the estimated cost Commencement of repair of which is One Hundred Thousand Dollars ($100,000.00) orConstruction onof the Horizontal Infrastructure Improvements.
Appears in 1 contract
Sources: Development Agreement
Conditions Precedent to Closing. a. The Seller’s obligation of Purchaser to close hereunder shall be expressly conditioned upon, and consummate the transactions contemplated by this Agreement are subject to, the satisfaction (or written waiver by Purchaser) of to each of the following conditions:
(1) Each conditions being met: The representations and warranties of the representations or warranties Buyer contained in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if of the date of this Agreement and shall be deemed to have been made again as of the Date time of Closing.
(2) No part , and shall as of the Property Closing be true and correct in all material respects. Buyer shall have performed and complied with all its obligations hereunder. All organizational actions of Buyer necessary to authorize the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby shall have been acquiredduly and validly taken by Buyer. No litigation, administrative proceeding, suit, action or other proceeding shall be pending or threatened that seeks to restrain, enjoin or otherwise prohibit the consummation of the transactions contemplated by this Agreement. Buyer shall have received all consents, actions, proceedings, instruments and documents required to carry out the transactions contemplated hereby, in form and substance reasonably satisfactory to Seller. Buyer shall have furnished Seller a certificate of an officer of Buyer certifying that: the representations and warranties of Buyer contained in this Agreement are true and correct in all material respects on and as of the Closing Date with the same force and effect as though made at and as of such time; and Buyer has performed in all material respects all of its agreements and covenants required by this Agreement to be performed by it prior to Closing. Buyer shall have delivered, or caused to be delivered, to Seller at Closing, all closing deliveries described in Section 4.02. Buyer’s obligation to consummate the transactions contemplated by this Agreement are subject to each of the following conditions being met: All necessary filings for the sale of the Assets shall have been made, and all necessary consents and approvals required under existing contracts or agreements and any applicable laws, rules or regulations shall have been received. The representations and warranties of Seller contained in this Agreement shall be about true and correct in all material respects as of the date of this Agreement and shall be deemed to have been made again as of the time of Closing, and shall as of the Closing be acquired (as evidenced by written notice thereof)true and correct in all material respects. Seller shall have performed and complied with all its obligations hereunder. No litigation, by authority of any governmental agency administrative proceeding, suit, action or other authority in proceeding shall be pending or threatened that seeks to restrain, enjoin or otherwise prohibit the exercise consummation of its power of eminent domain or the transactions contemplated by private purchase in lieu thereof (a “Taking”)this Agreement. If such a Taking has occurred or if Seller shall have received written notice all consents, actions, proceedings, instruments and documents required to carry out the transactions contemplated hereby, in form and substance reasonably satisfactory to Buyer. Seller shall have furnished Buyer a certificate of any such contemplated Taking, Purchaser may, at its sole option (i) terminate an officer of Seller certifying that: the representations and warranties of Seller contained in this Contract Agreement are true and receive a full refund correct in all material respects on and as of the Deposit Closing Date with the same force and any interest earned thereoneffect as though made at and as of such time; or (ii) continue and Seller has performed in all material respects all of its agreements and covenants required by this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award Agreement to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising performed by it prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions Precedent to Closing. a. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, unless expressly waived by Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
9.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquireddate hereof, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent have on or prior to closing, failed to meet, comply with or perform in any Taking material respect any conditions or agree to any condemnation award without agreements on Seller's part as required by the prior written consent terms of Purchaser (which consent this Agreement.
9.2. There shall be no change in the matters reflected in the Title Report, and there shall not exist any encumbrance or title defect affecting the Property not described in the Title Report except for the Permitted Exceptions or matters to be unreasonably withheld or delayed); satisfied at closing.
9.3. Unless Seller receives notice from Buyer at least thirty (B30) days prior to Closingclosing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking effective as of closing, all management and brokerage agreements affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free terminated by Seller and clear thereofany and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.4. Seller shall have operated and maintained the Property from and after the date hereof in substantially the same manner as prior thereto.
9.5. If any such condition is not fully satisfied by closing, Buyer shall so notify Seller and may terminate this Agreement by written notice to Seller whereupon this Agreement may be canceled, upon return of the Due Diligence Items the full Deposit shall be paid to Buyer and, thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder.
9.6. If Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this paragraph, Seller may, within five (5) days of receipt of Buyer's Notices agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be obligated to close the transaction provided Seller so satisfies such condition. If Seller fails to agree to cure or fails to cure such condition by the Closing Date, this Agreement shall be canceled and the full Deposit shall be returned to Buyer and neither party shall have any further liability hereunder.
9.7. Because Buyer's acquisition of the Property is intended to be part of a tax-deferred exchange pursuant to Section 1031 of the Code, Seller agrees to execute such documents or instruments as may be necessary or appropriate to evidence such exchange, provided that Seller's cooperation in such regard shall be at no additional cost, expense, or liability whatsoever to Seller, and that no additional delays in the scheduled Close of Escrow are incurred unless mutually agreed upon by all parties to this Agreement.
9.8. It shall be a condition precedent to Buyer's obligation to close that Buyer shall not have terminated this Agreement because of the inability of Buyer to secure Acceptable Financing (hereafter defined) within the Financing Contingency Period (hereafter defined). Buyer shall diligently endeavor to secure Acceptable Financing (hereafter defined) during the period which ends December 19, 2005 (the "Financing Contingency Period"). For purposes of this Section, "Acceptable Financing" shall mean a loan in an amount no less than 70% loan to value, with an interest rate of no more than 7%, amortized over no less than 20 years, with no more than a 1% origination fee. If Buyer is unable to secure a commitment for Acceptable Financing within the Financing Contingency Period, Buyer may, within the Financing Contingency Period, terminate this Agreement, in which case the full Deposit shall be refunded to Buyer. In the event that any notices of violations are issued with respect to Buyer terminates the Property prior to ClosingAgreement during the extended Financing Contingency Period, all corrective work required thereby of the Deposit shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject refunded to Purchaser’s prior approvalBuyer.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
9.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Date date hereof and Closing, and Seller shall not have on or prior to closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Seller’s part as required by the terms of this Agreement.
9.2. There shall be no change in the matters reflected in the Title Information Documents , and there shall not exist any encumbrance or title defect affecting the Property not described in the Title Information Documents except for the Permitted Exceptions or matters to be satisfied at Closing.
9.3. Unless Seller receives notice from Buyer at least thirty (230) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) days prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking effective as of Closing, the management agreement affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free terminated by Seller and clear thereofany and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.4. In the event that any notices of violations are issued with respect to Seller shall have operated the Property from and after the date hereof in substantially the same manner as prior to thereto.
9.5. If any such condition is not fully satisfied by Closing, all corrective work required thereby Buyer shall so notify Seller and may terminate this Agreement by written notice to Seller whereupon this Agreement may be canceled, upon return of the Due Diligence Items, the Deposit shall be performed by or paid by Seller. The natureto Buyer and, extentthereafter, methods and materials for neither Seller nor Buyer shall have any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalcontinuing obligations hereunder.
(4) The Property shall possess all clearances9.6. If Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this paragraph, permitsSeller may, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
within five (5) There days of receipt of Buyer’s notices agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be obligated to close the transaction provided Seller so satisfies such condition. If Seller fails to agree to cure or fails to cure such condition by the Closing date, this Agreement shall be no unrepaired damage by fire canceled and the Deposit shall be returned to Buyer and neither party shall have any further liability hereunder.
9.7. Seller agrees to cooperate and execute such documents or other casualty instruments as may be necessary or appropriate to any portion allow Buyer to complete a tax-deferred exchange pursuant to Section 1031 of the PropertyIRS Code and Seller’s cooperation in such regard, shall be at no additional cost, expense, or liability whatsoever to Seller, and that no additional delays in the estimated cost scheduled Close of repair of which is One Hundred Thousand Dollars ($100,000.00) orEscrow are incurred unless mutually agreed upon by all parties to this Agreement.
Appears in 1 contract
Conditions Precedent to Closing. a. The (1) Purchaser’s obligation of Purchaser under this Agreement to close hereunder shall be expressly conditioned upon, and purchase the Properties is subject to, to the satisfaction (or written waiver by Purchaser) fulfillment of each of the following conditions:, subject, however, to the provisions of Section 10(3):
(1) Each . The representations and warranties of the representations or warranties Seller contained in Section 6(a) of this Contract herein shall be true in all material respects as if made materially true, accurate and correct as of the Closing Date (subject to the provisions of Section 8(5));
2. Seller shall be ready, willing and able to deliver title to the Properties in accordance with the terms and conditions of this Agreement;
3. Seller shall have delivered all the documents and other items required pursuant to Section 11 hereof, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the Seller at or prior to the Closing.;
4. Purchaser shall have received at Closing title policies for the Properties with all endorsements required by this Agreement, updated ALTA surveys, the Leases, estoppel certificates in form reasonably acceptable to Seller and subordination, non-disturbance and attornment agreements substantially in the form attached hereto as Exhibit “D” (2) No part “SNDA”), it being agreed and understood that no event shall Seller’s failure to deliver any estoppel certificates or SNDA be deemed a default by Seller nor shall any such failure or delay give Purchaser any right whatsoever to fail to close this transaction as described herein in the manner and at the time otherwise prescribed by this Agreement;
5. As of the Property Closing Date, there shall be no material reduction in the credit rating of the tenants under the Leases for the Properties (or with respect to the Lease for the AEPC Property, Guarantor) from the date this Agreement is executed. (For the purposes of this Section 10(1)5, “material reduction” means, for tenant TRS, an S&P rating of “A” or below and a ▇▇▇▇▇’▇ rating of “Al” or below, and for Guarantor, a ▇▇▇▇▇’▇ rating of “A2” or below);
6. All material consents and approvals by any Governmental Authority and parties to agreements to which Seller is a party or by which Seller’s assets are bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been acquiredobtained and copies thereof or other evidence satisfactory thereof shall have been delivered to Purchaser at or prior to the Closing;
7. No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be about to be acquired (in effect as evidenced by written notice thereof), by authority of the Closing which prohibits the transfer of the Properties or the consummation of any governmental agency other transaction contemplated hereby; and
8. On or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided thatthe Closing Date, (A) Seller shall not consent have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any Taking of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or agree trustee shall have otherwise been appointed, unless same shall have been discharged prior to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); Closing Date, (B) prior to Closing, Seller shall provide Purchaser with not have admitted in writing an opportunity inability to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and pay its debts as they mature, (C) Seller shall reasonably cooperate not have made a general assignment for the benefit of creditors, (D) Seller shall not have been adjudicated as bankrupt or insolvent, or had a petition for reorganization granted with Purchaser after Closing respect to Seller, (E) Seller shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in prosecuting any claim for a condemnation award arising proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date.
(2) Seller’s obligation under this Agreement to sell the Properties to Purchaser is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 10(3):
1. The representations and warranties of Purchaser contained herein shall be materially true, accurate and correct as of the Closing Date;
2. Purchaser shall have delivered the funds required hereunder and all the documents to be executed by Purchaser set forth in Section 12 hereof and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by Purchaser at or prior to the Closing;
3. All consents and approvals by any Governmental Authority and parties to agreements to which Purchaser is a party or by which Purchaser’s assets are bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof shall have been delivered to Seller at or prior to the Closing;
4. No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect as of the Closing which prohibits the transfer of the Properties or the consummation of any other transaction contemplated hereby; and
5. On or prior to the Closing Date, (A) Purchaser shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) Purchaser shall not have admitted in writing an inability to pay its debts as they mature, (C) Purchaser shall not have made a general assignment for the benefit of creditors, (D) Purchaser shall not have been adjudicated as bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser, (E) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect condition contained in Section 10(1) or 10(2) is not satisfied, the party entitled to the satisfaction of such condition as a condition to its obligation to close title hereunder shall have as its sole remedy hereunder the right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement, (ii) if such failure is by Seller and is specific to a Property, Purchaser may delete such Property prior from this Agreement and receive credit against the Purchase Price in an amount equal to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Purchase Price allocated to such Property (which includes the applicable Deposit Allocation) or, (iii) if such failures relate to more than one of the Properties if such failures were by Seller, Purchaser may terminate this Agreement, or (iv) if such failure is by Purchaser or Seller and is not specific to a Property, terminate this Agreement. Nothing contained in this Section 10(3) shall be construed so as to bestow any right of termination upon a party for the estimated cost failure of repair a condition to be satisfied unless such party is expressly entitled to the satisfaction of which is One Hundred Thousand Dollars ($100,000.00such condition as provided in Section 10(1) oror 10(2). The provisions of this Section 10(3) shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Conditions Precedent to Closing. a. The 3.01. Purchaser’s obligation of Purchaser to close hereunder the acquisition of the Property pursuant to this Agreement shall be expressly conditioned upon, and subject toon the following (collectively, the satisfaction “Purchaser Closing Conditions”):
(or written waiver by Purchasera) of each No material adverse change in the condition of the following conditions:Property shall have occurred since the Effective Date.
(1b) Each All of the representations or warranties Seller’s covenants and obligations contained in Section 6(a) of this Contract Agreement shall be true have been performed by Seller in all material respects as if made of Closing. All of Seller’s representations and warranties shall be true and correct in all material respects as of the Effective Date of and at Closing.
(2c) The Title Company shall be irrevocably committed to issue an owner’s title insurance policy in form and substance satisfactory to Purchaser for the ▇▇▇▇▇ Acquisition Property, which insures good and marketable fee simple title to the ▇▇▇▇▇ Acquisition Property, subject only to those exceptions permitted pursuant to Section 2 hereof.
(d) Purchaser shall have obtained all authority and approvals necessary for Purchaser, including, without limitation, all regulatory and board approvals and governmental determinations, to undertake the obligations contained herein and to consummate the Closing contemplated hereby.
(e) No part later than three (3) Business Days prior to Closing, Purchaser and Escrow Agent shall have received evidence of all required consents and approvals, if any, by Seller to the transaction contemplated herein.
(f) Seller shall have provided payment (either prior to Closing or as a disbursement on the Closing Statement out of the Purchase Price payable to Seller) for all Monetary Liens so that the same may be satisfied and released at or prior to Closing.
(g) If Purchaser so elects, and in the manner Purchaser elects, the Seller, at Seller’s sole cost and expense, shall have released (or caused to be released) the Property from any license agreements, franchise agreements, management agreements, tri-party agreements, licenses, leases, service contracts, equipment leases, supply agreements, vendor contracts, any other contracts for services or goods provided to or encumbering the Property, and any other agreements (collectively, the “Property Contracts”) that would interfere with Purchaser’s intended use of the Property.
(h) Seller shall have terminated any and all leases or other occupancy agreements permitting any third party to occupy all or any portion of the Property, and Seller shall have caused any such tenants or parties in possession to vacate the Property, all at Seller’s sole cost and expense.
(i) The ▇▇▇▇▇ Acquisition Land shall have been acquiredlegally subdivided from the remainder of the Original ▇▇▇▇▇ Land (including the recording of a major or minor subdivision plat, or shall be about to be acquired as applicable) such that the ▇▇▇▇▇ Acquisition Land exists as a distinct and legal tax parcel (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “TakingSubdivision”). If such a Taking has occurred or if Purchaser, at Purchaser’s expense, shall pursue the Subdivision. Seller shall have received written notice cooperate with ▇▇▇▇▇’s efforts to secure the Subdivision. If any of any the above conditions precedent to Purchaser’s obligation to close has not been satisfied as of the Closing or as of the applicable due dates noted in such contemplated Takingcondition, Purchaser may, at its sole option may (i) terminate this Contract Agreement by written notice to Seller and receive a full refund of the Deposit and any interest earned thereon; ▇▇▇▇▇▇▇ Money, whereby Purchaser shall have no further obligations or liabilities under this Agreement, except as expressly set forth herein, (ii) continue this Contractextend the Closing or due date of the performance of the applicable condition by written notice to Seller for a reasonable period of time to allow for the satisfaction of the condition (and, pay the full purchase price without reductionif Purchaser requests, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closingits sole discretion, Seller and Purchaser shall provide Purchaser with enter into an opportunity amendment to participate with Seller this Agreement to evidence the extension), or (iii) waive the condition, in any negotiations relating to a Taking affecting any portion of the Property whole or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdictionpart, and any action in any court against consummate the Closing contemplated hereby. If the Purchaser elects to extend the Closing or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials due date for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purposeperformance, and at the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion end of the Propertysuch extended period of time, the estimated cost of repair of which is One Hundred Thousand Dollars applicable condition still has not been satisfied, Purchaser may elect to exercise the remedies set forth in items ($100,000.00i) oror (iii) in the immediately preceding sentence.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions Precedent to Closing. a. The (a) In addition to any conditions provided in other provisions of this Agreement, Developer’s obligation of Purchaser to close hereunder lease the applicable Ground Lease Property from Owner pursuant to a Ground Lease shall be expressly conditioned uponon the following as of the applicable Closing Date:
(i) Owner shall have materially performed each and every covenant, undertaking and subject to, the satisfaction agreement to be performed by it hereunder with respect to such Ground Lease Property and no Owner Default shall then exist.
(or written waiver by Purchaserii) of each None of the following conditions:
shall be in effect by or against or with respect to Owner: (1a) Each the commencement of a case under Title 11 of the representations U.S. Code, as now constituted or warranties contained in Section 6(ahereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (b) the appointment of this Contract shall be true in all material respects as if made as a trustee or receiver of any property interest; or (c) an assignment for the Date benefit of Closingcreditors.
(2iii) No part There shall be no violation by Owner of any Legal Requirement relating to such Ground Lease Property that has not remedied, where the failure to so remedy would have a material adverse effect on the proposed use and development of such Ground Lease Property in accordance with the Concept Plan and the Design Standards.
(iv) Owner shall have obtained all consents, releases and permissions and given all required notifications related to the transactions contemplated by the applicable Ground Lease and required under any agreement to which Owner is a party or any Legal Requirement by which Owner is bound. If the transaction contemplated by the particular Ground Lease, or any component thereof, shall require Owner to obtain authorization or approval of any Governmental Authority, all such authorizations and approvals shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract obtained and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effecteffect as and when required. If such authorizations and approvals are required on a Closing Date but shall not have been obtained on or prior to the last day for such Closing, in good standing and the Closing Date may be deferred, at the election of Developer, for an additional period of time, not subject to exceed 30 days, as shall be necessary to obtain any known authorizations or threatened challengeapprovals not then obtained.
(5b) There In addition to any conditions provided in other provisions of this Agreement, Owner’s obligation to lease the applicable Ground Lease Property to Developer pursuant to a Ground Lease shall be conditioned on the following as of the applicable Closing Date:
(i) Developer shall have materially performed each and every covenant, undertaking and agreement to be performed by it hereunder with respect to such Ground Lease Property and no unrepaired damage Developer Default shall then exist.
(ii) None of the following shall be in effect by fire or against or with respect to Developer: (a) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other casualty to similar law; (b) the appointment of a trustee or receiver of any portion property interest; or (c) an assignment for the benefit of creditors.
(iii) As of the applicable Closing Date, Developer shall have obtained all consents, releases and permissions and given all required notifications related to the transactions contemplated by the applicable Ground Lease and required under any agreement to which Developer is a party or any Legal Requirement by which Developer is bound. If the transaction contemplated by the particular Ground Lease, or any component thereof, shall require Developer to obtain authorization or approval of any Governmental Authority, all such authorizations and approvals shall have been obtained and shall be in full force and effect as and when required. If such authorizations and approvals are required on a Closing Date but shall not have been obtained on or prior to the last day for such Closing, the Closing Date may be deferred, at the election of Owner, for an additional period of time, not to exceed 30 days, as shall be necessary to obtain any authorizations or approvals not then obtained.
(c) Either party may at any time or times, at its election, waive any of the conditions to its obligations hereunder, but any such waiver shall be effective only if contained in a writing signed by such party. No such waiver shall reduce the rights or remedies of a party by reason of any breach by the other party (but if a condition is waived, the party waiving the same may not rescind this Agreement on the basis of the failure of such waived condition). In the event that for any reason any item required to be delivered to a party by the other party hereunder shall not be delivered when required, then such other party shall nevertheless remain obligated to deliver the same to the first party, and nothing (including, but not limited to, the closing of the transaction hereunder) shall be deemed a waiver by the first party of any such requirement. The failure of any of the aforesaid conditions shall entitle the non-failing party, at its option, to cancel and terminate the transaction contemplated by the applicable Lease Notice, in which case (i) the provisions of Section 2(g) shall apply, and (ii) Developer shall have no further right or option to lease such Ground Lease Property, the estimated cost and Owner shall be entitled to deal with such Ground Lease Property free and clear of repair any rights of which is One Hundred Thousand Dollars ($100,000.00) orDeveloper, and this Agreement shall otherwise remain in full force and effect.
Appears in 1 contract
Sources: Agreement to Develop and Lease (Centerpoint Properties Trust)
Conditions Precedent to Closing. a. (a) The obligation of Purchaser to close hereunder following shall be expressly conditioned upon, conditions precedent to Purchaser's obligation to consummate the purchase and subject to, sale transaction contemplated herein (the satisfaction (or written waiver by "Purchaser) of each of the following conditions:'s Conditions Precedent"):
(1i) Each of the representations Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 16(a) or warranties contained in Section 6(a16(b) of this Contract shall be true Agreement within the time periods described in all material respects as if made as of the Date of Closingsaid Sections.
(2ii) No Title Company shall stand ready to issue, at the Closing, an ALTA Form B 1970 Owner's Policy of Title Insurance (the "Title Policy"), dated the date and time of Closing and with policy coverage in the amount of the Purchase Price, insuring Purchaser as owner of good, marketable and indefeasible fee title to the Property, subject only to the Permitted Exceptions, and affirmatively insuring as a part of Schedule A to such title policy Purchaser's rights under the REAs or other appurtenant easements that benefit the Real Property and containing the following endorsements: an extended coverage endorsement over the general exceptions contained in the policy, an endorsement insuring against loss of title to the Property or the inability of the owner of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in maintain the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of improvements now located on the Property by reason of a violation of a covenant, condition or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices restriction of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or record affecting the Property, shall have been complied with by Seller and a location endorsement insuring the Property shall be free and clear thereof. In accuracy of the event that any notices of violations are issued with respect Survey, an endorsement insuring legal access to the Property prior to Closingfrom each of the streets bordering on the Property, and insuring that all corrective work required thereby shall be performed such streets are dedicated public streets, a contiguity endorsement, a zoning 3.1 endorsement including coverage over parking, a tax parcel endorsement, a utility facility endorsement and such other endorsements reasonably requested by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4iii) The Property Purchaser shall possess have received and reasonably approved, within two (2) days after the delivery thereof, executed estoppel certificates substantially in the form of Exhibit D hereto from each of the Major Tenants and from Tenants occupying the leasable space in the Improvements which is leased as of the date of this Agreement; provided, however, that if the form of estoppel certificate attached hereto as Exhibit D requests information in addition to or different than that required to be given pursuant to a Tenant's Lease, this condition will be satisfied for such Tenant(s) if such Tenant(s) executes an estoppel certificate in the form required pursuant to its Lease. If Seller is unable to obtain an estoppel certificate from all clearancesTenants (the Tenants from whom estoppel certificates have not been obtained, permitsthe "Missing Tenants"), occupancy certificatesbut has obtained an estoppel certificate from all Major Tenants, licenses and registrations necessary for its intended purposethen, and in lieu thereof, Seller may satisfy this Condition Precedent by providing to Purchaser a certificate pertaining to each Missing Tenant (each a "Seller's Certificate"), covering the same shall be matters that would have been set forth in full force the Missing Tenant's estoppel certificate (and effectif, in good standing and not subject after the Closing, Seller delivers to any known Purchaser or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of Manager obtains a tenant estoppel certificate from a Missing Tenant for whom Seller executed a Seller's Certificate at the PropertyClosing, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orthen Seller thereafter shall
Appears in 1 contract
Sources: Purchase and Sale Agreement (General Growth Properties Inc)
Conditions Precedent to Closing. a. (a) The obligation of Purchaser to close hereunder following shall be expressly conditioned uponconditions precedent to Purchaser’s obligation to consummate the purchase and sale transaction contemplated herein (the “Purchaser’s Conditions Precedent”):
(i) Purchaser shall not have terminated this Agreement in accordance with Section 4, and subject toSection 5, Section 16(a), Section 16(b), Section 17 or any other applicable section of this Agreement within the time periods described in said sections.
(ii) Title Company shall be irrevocably committed to issue, at the Closing, the satisfaction Approved Title Policy, subject to Purchaser’s payment of the title premiums for which Purchaser is responsible hereunder.
(or written waiver iii) Purchaser shall have received, no less than three (3) business days prior to the Closing, executed estoppel certificates in the form of the Approved Estoppels (as defined below) (with no changes other than de minimis changes reasonably approved by Purchaser) and not disclosing the existence of any default under the Leases referenced therein, from tenants occupying at least eighty percent (80%) of the leasable space in the Improvements which is leased as of the date of this Agreement and specifically including all of the Major Tenants. Each executed estoppel certificate delivered to Purchaser shall be deemed to be satisfactory to Purchaser unless Purchaser provides Seller with written notice within three (3) business days of Purchaser’s receipt of such estoppel certificate of its disapproval of such estoppel certificate and the basis of such disapproval. A “Major Tenant” means each of the following conditions:
(1) Each tenants at the Property: Sodexo Operations, LLC and Covance, Inc. Seller’s failure to obtain said estoppel certificates shall not be a default by Seller under this Agreement. Seller has prepared, or caused to be prepared, and Purchaser has reviewed and approved the forms of estoppel certificates from the representations tenants, which were based on the form of estoppel certificate attached hereto as Exhibit D and Seller has remitted, or warranties contained in Section 6(a) of this Contract shall caused to be true in remitted, the estoppel certificates, as approved by Purchaser, to all material respects as if made as of the Date of Closing.
(2) No part tenants of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”)for signature. If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with Such estoppel certificates prepared by Seller and approved by Purchaser as provided above are referred to, collectively, as “Approved Estoppels”. Notwithstanding the Property shall be free and clear thereof. In foregoing, in the event that any notices of violations are issued with respect the condition described in this Section 9(a)(iii) shall not have been satisfied, either Seller or Purchaser may elect by notice to the Property prior other to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials extend the Closing for any corrective work and the parties performing a period not to exceed thirty (30) days in order to satisfy such work shall be subject to Purchaser’s prior approvalcondition.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Conditions Precedent to Closing. a. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
9.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquireddate hereof, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking have on or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser failed to meet, comply with an opportunity to participate with Seller or perform in any negotiations relating to a Taking material respect any conditions or agreements on Seller's part as required by the terms of this Agreement.
9.2. There shall be no change in the matters reflected in the Title Report, and there shall not exist any encumbrance or title defect affecting any portion of the Property not described in the Title Report except for the Permitted Exceptions or any condemnation award matters to be made in connection therewith; and satisfied at Closing.
9.3. Unless Seller receives notice from Buyer at least thirty (C30) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising days prior to Closing.
(3) All written notices , effective as of violations of governmental orders or requirements noted or issued by any public authority having jurisdictionClosing, and any action in any court against or the management agreement affecting the Property, shall have been complied with by Seller and the Property shall be free terminated by Seller and clear thereofany and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.4. In the event that any notices of violations are issued with respect to Seller shall have operated the Property from and after the date hereof in substantially the same manner as prior to thereto.
9.5. If any of the conditions set forth in this Section 9 is not fully satisfied by Closing, all corrective work required thereby Buyer shall so notify Seller and may terminate this Agreement by written notice to Seller whereupon this Agreement will be canceled, and upon return of the Due Diligence Items, the Deposit shall be performed by or paid by Seller. The natureto Buyer and, extentthereafter, methods and materials for neither Seller nor Buyer shall have any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalcontinuing obligations hereunder.
(4) The Property shall possess all clearances9.6. If Buyer notifies Seller of a failure to satisfy any of the conditions precedent set forth in this Section 9, permitsSeller may, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
within five (5) There days of receipt of Buyer's notice agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be obligated to close the transaction provided Seller so satisfies such condition. If Seller fails to agree to cure or fails to cure such condition by the Closing Date, this Agreement shall be no unrepaired damage by fire canceled and the Deposit shall be returned to Buyer and neither party shall have any further liability hereunder.
9.7. If Buyer's acquisition of the Property is part of a tax-deferred exchange pursuant to Section 1031 of the Code, it is a condition precedent to the closing of this Escrow that Buyer is able to complete an exchange for all or other casualty to any a portion of its relinquished property pursuant to an Exchange Agreement between Buyer and Chicago Deferred Exchange Corporation (Accommodator). Seller agrees to execute such documents or instruments as may be necessary or appropriate to evidence such exchange, provided that Seller's cooperation in such regard shall be at no additional cost, expense, or liability whatsoever to Seller, and that no additional delays in the Property, the estimated cost scheduled Close of repair of which is One Hundred Thousand Dollars ($100,000.00) orEscrow are incurred unless mutually agreed upon by all parties to this Agreement.
Appears in 1 contract
Conditions Precedent to Closing. a. 13.1 The obligation obligations of Purchaser the Asset Contributing Property Partnerships to close hereunder deliver title to the Property Partnerships' Real Property and the obligations of the Partners to contribute its interests in the Interest Contributing Property Partnerships as set forth in Section 1.3, and to perform the other covenants and obligations to be performed by the Property Partnerships or the Partners on the Closing Date shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of to the following conditions:conditions (all or any of which may be waived, in whole or in part, by the Property Partnerships or the Partners):
(1a) Each of the The representations or and warranties contained in Section 6(a) of this Contract made by National, New Reit and PRLP herein shall be true and correct in all material respects with the same force and effect as if though such representations and warranties had been made on and as of the Date Closing Date; provided, however, that a failure of Closingany representations or warranties to be true and correct in all material respects shall not give rise to a claim by the Property Partnerships hereunder so long as such matters do not have a material adverse effect on the transactions contemplated herein.
(2b) No part National, New Reit and PRLP shall have executed and delivered to the Property Partnerships all of the Property documents provided herein for said delivery, including without limitation, the Registration Rights Agreement and the PRLP Agreement.
(c) National, New Reit and PRLP shall have performed all covenants and obligations undertaken by National, New Reit and PRLP herein in all respects and complied with all conditions required by this Agreement to be performed or complied with by them on or before the Closing Date.
(d) National shall have elected to be taxed as a REIT in its most recent federal income tax return, and shall be in compliance with all applicable laws, rules and regulations, including the Code, necessary to permit it to be taxed as a REIT. National shall not have taken any action or have failed to take any action which would reasonably be expected to, alone or in conjunction with any other factors, result in the loss of its status as a REIT for federal income tax purposes.
(e) The National Shareholder Approval shall have been acquired, or obtained.
13.2 The obligations of National to deliver title to the National Real Property and to perform the other covenants and obligations to be performed by National on the Closing Date shall be about subject to the following conditions (all or any of which may be waived, in whole or in part, by National):
(a) The representations and warranties made by the Property Partnerships, New Reit, the Partners and PRLP herein shall be true and correct in all material respects with the same force and effect as though such representations and warranties had been made on and as of the Closing Date; provided, however, that a failure of any representations or warranties to be acquired true and correct in all material respects shall not give rise to a claim by National hereunder so long as such matters do not have a material adverse effect on the Property Partnerships as a whole.
(as evidenced by written notice thereof)b) The Property Partnerships, by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller New Reit and PRLP shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract executed and receive a full refund delivered to National all of the Deposit and any interest earned thereon; documents provided herein for said delivery on or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3c) All written notices of violations of governmental orders The Property Partnerships, the Partners, New Reit and PRLP shall have performed all covenants and obligations undertaken by the Property Partnerships, New Reit, the Partners and PRLP herein in all material respects and complied in all material respects with all conditions required by this Agreement to be performed or requirements noted complied with by them on or issued by any public authority having jurisdiction, and any action in any court against or affecting before the Property, Closing Date.
(d) The National Shareholder Approval shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalobtained.
(4e) The Property No governmental entity or federal or state court shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and have issued any injunction or other order which restrains or prohibits the same shall be in full force and effect, in good standing and not subject to any known or threatened challengeconsummation of the transactions contemplated hereby.
(5f) There The Registration Statement shall be have been declared effective by the Securities and Exchange Commission and no unrepaired damage by fire or other casualty to any portion stop order suspending the effectiveness of the Property, Registration Statement shall have been issued under the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orAct and no proceedings therefor shall have been initiated or threatened by the Securities and Exchange Commission.
Appears in 1 contract
Sources: Contribution and Exchange Agreement (Philips International Realty Corp)
Conditions Precedent to Closing. a. The following are conditions precedent to Buyer's obligation to purchase the Property (the "Conditions Precedent"). The Conditions Precedent are intended solely for the benefit of Purchaser to close hereunder Buyer and may be waived only by Buyer in writing or by the occurrence of Closing. In the event any condition precedent is not satisfied or waived by Buyer, Buyer may, in its sole and absolute discretion, terminate this Agreement at which point the Earn▇▇▇ ▇▇▇ey shall be expressly conditioned uponreturned to Buyer and, subject to the provisions of Paragraph 7, all obligations of Buyer and subject to, the satisfaction Seller hereunder (except provisions of this agreement which recite that they survive termination) shall terminate and be of no further force or written waiver by Purchaser) of each of the following conditions:effect.
(1a) Each All of the Seller's representations or and warranties contained in Section 6(a) of this Contract Agreement shall have been true and correct when made and shall be true in all material respects as if made and correct as of the Date of ClosingClosing Date.
(2b) No part The physical condition of the Property shall have been acquiredbe substantially the same on the Closing Date as on the date of Buyer's execution of this Agreement, except for reasonable wear and tear and loss by casualty (subject to the provisions of Paragraph 13, below), condemnation and repairs, replacements and improvements made with Buyer's written approval or those required by any Lease.
(c) As of the Closing Date, there shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental no litigation or administrative agency or other authority governmental proceeding of any kind whatsoever, pending or threatened, which was not disclosed in writing to Buyer during the exercise Due Diligence Period and no proceedings shall be pending or threatened which could or would cause the redesignation or other modification of its power the zoning classification of eminent domain the Property.
(d) Seller shall terminate at or by private purchase in lieu thereof prior to the Closing Date, at no cost or expense to Buyer, any and all Service Contracts or other agreements affecting the Property that are not Assumed Contracts.
(a “Taking”). If such a Taking has occurred or if e) Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment substantially complied with all of Seller’s rights 's duties and obligations contained in any condemnation award this Agreement.
(whether received prior to or after Closingf) There shall have been no material adverse change, in the Preliminary Documents reviewed and proceed to Closing; provided that, approved by Buyer during the Due Diligence Period.
(Ag) Seller shall not consent have delivered to any Taking or agree to any condemnation award without the prior written consent of Purchaser Buyer tenant certificates (which consent shall not be unreasonably withheld or delayed); "Tenant Certificates") within thirty (B30) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion days of the Property or any condemnation award Closing Date in a form substantially similar to be made in connection therewith; and Exhibit "L" attached hereto from tenants under Leases accounting for eighty percent (C80%) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued the gross revenue being currently generated by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Industrial Properties Reit Inc)
Conditions Precedent to Closing. a. (a) Buyer's conditions. The obligation following are conditions precedent to Buyer's obligations under this Agreement (the "Buyer Conditions Precedent"). The Buyer Conditions Precedent are intended solely for the benefit of Purchaser Buyer and may be waived only by Buyer in writing. In the event any Buyer Condition Precedent is not satisfied, Buyer may, in its sole and absolute discretion, terminate this Agreement, and, subject to close the provisions of Paragraph 7, all obligations of Buyer and Seller hereunder (except provisions of this Agreement which recite that they survive termination) shall terminate and be expressly conditioned uponof no further force or effect.
5 (i) Buyer's inspection, review and subject toapproval, within the satisfaction (or written waiver by Purchaser) Due Diligence Period, of each all aspects of the following conditions:Property.
(1ii) Each The issuance by the Title Company to Buyer of the Title Policy subject only to the Approved Title Exceptions and including the Endorsements.
(iii) All of Seller's representations or and warranties contained in Section 6(a) of or made pursuant to this Contract Agreement shall have been true and correct when made and shall be true in all material respects as if made and correct as of the Date of ClosingClosing Date.
(2iv) No part Seller shall have fully complied with all of Seller's duties and obligations contained in this Agreement.
(v) As of the Closing Date, there shall be no litigation or administrative agency or other governmental proceeding pending or threatened, which after Closing would, materially adversely affect the value of the Property or the ability of Buyer to operate the Property in the manner in which it is currently being operated, and no proceedings shall have been acquiredbe pending or threatened which would cause the redesignation or other modification of the zoning classification of, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency building or other authority in environmental code requirements applicable to, any of the exercise of its power of eminent domain or by private purchase in lieu thereof Property.
(a “Taking”). If such a Taking has occurred or if vi) Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option provided Buyer with an updated Rent Roll three (i3) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) business days prior to Closing, which updated Rent Roll must not indicate any material adverse change from the Rent Roll last approved by Buyer. Seller shall provide Purchaser with an opportunity to participate with Seller in specifically identify any negotiations relating to a Taking affecting any portion of changes from the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdictionmost recently approved Rent Roll, and any action in any court against or affecting the Property, Buyer shall have been complied with by Seller and performed a closing audit which confirms the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalupdated Rent Roll.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pacific Gulf Properties Inc)
Conditions Precedent to Closing. a. The (i) Buyer’s obligation of Purchaser under this Agreement to close purchase the Assets as provided hereunder shall be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) fulfillment of each of the following conditionsconditions subject, however, to the provisions of subsection (iii) below:
(1A) Each of the representations or and warranties of Seller contained in Section 6(a) of this Contract 12 hereof shall be true true, accurate and correct in all material respects as if made as of the Date of Closing.Closing Date;
(2B) No part title to the Real Property shall be in compliance with the terms of Section 9 hereof and Title Company shall be prepared to issue the Title Policy subject only to payment of the Property shall have been acquiredpremium therefor; provided, or shall be about however, that if Title Company is not prepared to be acquired (so issue the Title Policy as evidenced by written notice thereof), by authority a result of any governmental agency act or other authority omission of Buyer or any Affiliate of Buyer and title to the Real Property is in compliance with the exercise terms of its power of eminent domain or by private purchase in lieu thereof (Section 9 hereof, such circumstances shall not constitute a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed condition to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and and
(C) Seller shall reasonably cooperate have delivered, or caused to be delivered, to Escrow Agent or Buyer each of the Closing Documents required to be delivered by Seller pursuant to Section 11(b) hereof and shall have performed all other covenants, undertakings and obligations and complied with Purchaser after Closing in prosecuting any claim for a condemnation award arising all conditions required by this Agreement to be performed or complied with by Seller at or prior to the Closing.
(3ii) All written notices Seller’s obligations under this Agreement to sell the Assets as provided hereunder shall be subject to the fulfillment of violations each of governmental orders or requirements noted or issued by any public authority having jurisdictionthe following conditions subject, however, to the provisions of subsection (iii) below:
(A) the representations and any action warranties of Buyer contained in any court against or affecting Section 13 hereof shall be true, accurate and correct in all material respects as of the Property, Closing Date; and
(B) Buyer shall have been delivered the funds required to be delivered by Buyer hereunder at Closing and shall have further delivered, or caused to be delivered, each of the Closing Documents required to be delivered by Buyer pursuant to Section 11(b) hereof and shall have performed all other covenants, undertakings and obligations and complied with all conditions required by this Agreement to be performed or complied with by Seller and Buyer, at or prior to the Property shall be free and clear thereof. Closing.
(iii) In the event that any notices of violations are issued with respect condition contained in Section 11(d)(i) or (ii) is not satisfied, the Party entitled to the Property prior satisfaction of such condition as a condition to Closingits obligation to close hereunder shall have as its sole remedy hereunder the right to elect to (A) waive such unsatisfied condition whereupon Closing shall proceed as provided in this Agreement without any abatement of the Purchase Price, all corrective work required thereby or (B) terminate this Agreement. In the event such Party elects to terminate this Agreement, this Agreement shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work terminated and the parties performing such work Parties shall have no further rights, obligations or liabilities hereunder, except for those obligations which are expressly stated to survive the termination of this Agreement and except that if Buyer terminates this Agreement because a condition contained in Section 11(d)(i) hereof is not satisfied, Escrow Agent shall return the Deposit (less the Hard Deposit) to Buyer. Nothing contained herein shall be subject construed so as to Purchaser’s prior approvalbestow any right of termination upon a Party for the failure of a condition to be satisfied unless such Party is expressly entitled to the satisfaction of such condition as provided in Section 11(d)(i) or (ii) hereof.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (Steadfast Apartment REIT, Inc.)
Conditions Precedent to Closing. a. 10.1. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
10.1.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Effective Date and the Closing Date, and Seller shall not have on or prior to Closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Seller’s part as required by the terms of this Agreement.
10.1.2. There shall not exist any encumbrance or title defect that is material and adverse, as determined by Buyer, affecting the Property except for the Permitted Exceptions or matters to be satisfied at Closing.
10.1.3. At Closing, the Title Company shall irrevocably commit to issue to Buyer an ALTA 2006 extended coverage Owner’s Policy of Title Insurance (2“Title Policy”) No part insuring Buyer’s leasehold title to the Leasehold and fee simple title to the Improvements, for an amount equal to the Purchase Price, subject only to the Permitted Exceptions; provided, however, that the Title Company’s failure to issue such extended coverage Title Policy by reason of Buyer’s failure to obtain or update the Survey shall not constitute a failure of the Property condition described in this Section 10.1.3 as long as the Title Company irrevocably commits to issue a CLTA standard coverage Owner’s Policy of Title Insurance.
10.1.4. No later than five (5) Business Days prior to the Closing Date, Seller shall have been acquired, or shall be about to be acquired obtained estoppel certificates (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (each a “TakingTenant Estoppel”) executed by Tenants consisting of not less than seventy percent (70%) of the leased rentable square footage of the Real Property and including all Tenants leasing three thousand (3,000) square feet or more (any such Tenant, a “Major Tenant”). If such a Taking has occurred or if Seller shall have received written notice of any use commercially reasonable efforts to obtain the Tenant Estoppels. Each Tenant Estoppel shall be in a form substantially similar to Exhibit D attached hereto or such contemplated Takingform required by the applicable Tenant Lease, Purchaser mayand in addition, at its sole option no later than three (i3) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received Business Days prior to or after Closing) the date on which Seller intends to distribute the Tenant Estoppels to the Tenants for their completion and proceed to Closing; provided thatexecution, (A) Seller shall not consent deliver the draft estoppel certificates to any Taking or agree to any condemnation award without the prior written consent of Purchaser (Buyer for Buyer’s review and approval, which consent approval shall not be unreasonably withheld withheld. Such Tenant Estoppels shall be consistent with the respective Tenant Lease, shall not reveal any material default by Seller and/or Tenant, any right to offset rent by the Tenant, or delayed); any claim of the same, and shall be dated no earlier than thirty (B30) days prior to Closing.
10.1.5. No later than five (5) Business Days prior to Closing, Seller shall provide Purchaser with have obtained an opportunity estoppel certificate as to participate with Seller in any negotiations relating each recorded declaration, reciprocal easement agreement or similar recorded title document which grants access to a Taking affecting any portion of public road and/or parking rights to the Property or any condemnation award Seller, to the extent such estoppel certificates are required to be made delivered pursuant to the terms of each such recorded declaration, reciprocal easement agreement or similar recorded title document. If such estoppel certificates are not required to be delivered pursuant to the terms of any such recorded declaration, reciprocal easement agreement or similar recorded title document, Tenant shall use all commercially reasonable efforts to obtain the certificate with respect to any such recorded declaration, reciprocal easement agreement or similar recorded title document. The estoppel certificates required by the preceding sentence shall: (i) be executed by each party entitled to enforce such document; (ii) confirm that such document is in connection therewithfull force and effect and is unmodified except as revealed by the Preliminary Report; (iii) confirm that there are no material defaults by the Seller and/or the Real Property under such document; (iv) confirm that there are no outstanding and delinquent sums owed by the Seller that will not paid by Seller prior to the Closing; and (Cv) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising be dated no earlier than sixty (60) days prior to Closing. To Seller’s knowledge, neither Seller, nor any other party is in default under any recorded declaration, reciprocal easement agreement, or similar recorded title document which grants access to a public road and/or parking rights to Seller.
10.1.6. No later than five (35) All written notices Business Days prior to the Closing Date, Seller shall have obtained estoppel certificates executed by the Ground Lessor under the Ground Lease on a commercially reasonable form to be provided by the Buyer prior to the expiration of violations of governmental orders or requirements noted or issued the Due Diligence Period (the “Ground Lease Estoppel”). Such estoppel certificate shall be consistent with the Ground Lease, shall not reveal any default by any public authority having jurisdictionparty thereto and shall be dated no earlier than thirty (30) days prior to Closing. Seller shall use commercially reasonable efforts to obtain the Ground Lease Estoppel.
10.1.7. No later than the expiration of the Inspection Period, and any action in any court against or affecting the Property, Seller shall have been complied with obtained written consent to the assignment of the Ground Lease to Buyer in a form reasonably acceptable to Buyer from the Ground Lessor. The conditions set forth in this Section 10.1 are solely for the benefit of Buyer and may be waived only by Seller Buyer in writing, in Buyer’s sole and absolute discretion. At all times Buyer has the Property shall right to waive any condition by giving written notice of such waiver to Seller. Such waiver or waivers must be free and clear thereofin writing to Seller. In the event that any notices of violations are issued with respect a failure to satisfy the conditions precedent set forth in this Section 10.1, Buyer may terminate this Agreement upon written notice to Seller, in which event the entire Deposit shall be promptly returned to Buyer and the parties shall have no further obligations, except those which expressly survive termination of this Agreement; provided, however, if such failure constitutes a breach or default of its covenants, representations or warranties Seller shall remain liable for such breach or default as otherwise set forth in this Agreement.
10.2. The obligations of Seller under this Agreement shall, at the option of Seller, be subject to the Property following conditions precedent:
10.2.1. All of the representations, warranties and agreements of Buyer set forth in this Agreement shall be true and correct in all material respects as of the Effective Date, and Buyer shall not have on or prior to Closing, all corrective work failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer’s part as required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalterms of this Agreement.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (G REIT Liquidating Trust)
Conditions Precedent to Closing. a. 3.01 The obligation of Purchaser the Assignor to close hereunder shall be expressly conditioned upon, and subject to, complete the satisfaction (or written waiver by Purchaser) of each sale of the Assignor's Interest pursuant hereto is subject to the following conditionsconditions being satisfied:
(1a) Each of all covenants, representations and warranties made by the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, Vendor hereunder shall have been complied with by Seller and remain true at the Property Closing Date;
(b) at the Closing Date, the purchase and sale hereby agreed to shall be comply with all legal requirements and restrictions;
(c) the Vendor shall have delivered to the Parent Company, share certificates for 800,000 common shares of the Parent Company, and free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closingall charges, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods liens and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.encumbrances; and
(4d) The Property shall possess all clearanceson the Closing Date, permitsno suit, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known action or other proceeding is pending or threatened challenge.
(5) There shall be no unrepaired damage by fire before any court or other casualty to any portion government agency which might result in impairment or loss of the Property. The foregoing conditions shall be for the exclusive benefit of the Assignor and may, without prejudice to any of the rights of the Assignor hereunder (including reliance on or enforcement of warranties or covenants which are preserved dealing with or similar to the condition or conditions waived) be waived by it in writing, in whole or in part, at any time. In case any of the said conditions shall not be complied with, or waived by the Assignor, at or before the Closing, the estimated cost Assignor may rescind and terminate this agreement by written notice to the Vendor and, in such event, the Assignor and the Vendor shall be released from all obligations hereunder.
3.01 The obligation of repair the Vendor to complete the purchase of the Assignor's Interest pursuant hereto is subject to the following conditions being satisfied:
(a) all covenants, representations and warranties made by the Assignor hereunder shall have been complied with and remain true at the Closing Date;
(b) at the Closing Date, the purchase and sale hereby agreed to shall comply with all legal requirements and restrictions;
(c) at the written request of the Vendor, the Assignor and the Parent Company shall have caused to be recorded in the office of the governmental agency, the transfer, to the Vendor of a 75% undivided interest in and to the Property; and
(d) on the Closing Date, no suit, action or other proceeding is pending or threatened before any court or government agency which is One Hundred Thousand Dollars might result in impairment or loss of the Property. The foregoing conditions shall be for the exclusive benefit of the Vendor and may, without prejudice to any of the rights of the Vendor hereunder ($100,000.00including reliance on or enforcement of warranties or covenants which are preserved dealing with or similar to the condition or conditions waived) orbe waived by it in writing, in whole or in part, at any time. In case any of the said conditions shall not be complied with, or waived by the Vendor, at or before the Closing, the Vendor may rescind and terminate this agreement by written notice to the Assignor and, in such event, the Vendor and the Assignor shall be released from all obligations hereunder.
3.02 At the Closing, provided that all conditions precedent have been satisfied or waived, the Agreement shall terminate.
Appears in 1 contract
Conditions Precedent to Closing. a. (a) The obligation of Purchaser to close hereunder following shall be expressly conditioned uponconditions precedent to Purchaser’s obligation to consummate the purchase and sale transaction contemplated herein (the "Purchaser’s Conditions Precedent"):
(i) Purchaser shall not have terminated this Agreement in accordance with Section 4, and subject toSection 5, Section 16(a), Section 16(b), Section 17 or any other applicable section of this Agreement within the time periods described in said sections.
(ii) Title Company shall be irrevocably committed to issue, at the Closing, the satisfaction Approved Title Policy, subject to Purchaser's payment of the title premiums for which Purchaser is responsible hereunder.
(or written waiver iii) Purchaser shall have received, no less than three (3) business days prior to the Closing, executed estoppel certificates in the form of the Approved Estoppels (as defined below) (with no changes other than de minimis changes reasonably approved by Purchaser) and not disclosing the existence of any default under the Leases referenced therein, from tenants occupying at least eighty percent (80%) of the leasable space in the Improvements which is leased as of the date of this Agreement and specifically including all of the Major Tenants. Each executed estoppel certificate delivered to Purchaser shall be deemed to be satisfactory to Purchaser unless Purchaser provides Seller with written notice within three (3) business days of Purchaser’s receipt of such estoppel certificate of its disapproval of such estoppel certificate and the basis of such disapproval. A "Major Tenant" means each of the following conditions:
(1) Each tenants at the Property: Ball Corporation, LPS, DataLogix, ▇▇▇▇ Group, HID Global, Urban Lending Solutions, and Tandberg Data. Seller’s failure to obtain said estoppel certificates shall not be a default by Seller under this Agreement. Seller has prepared, or caused to be prepared, and delivered on May 22, 2013, to Purchaser for review and approval the estoppel certificates Seller intends to deliver to the tenants, which were based on the form of estoppel certificate in the representations form attached hereto as Exhibit D. Seller shall, promptly after receiving Purchaser's approval thereof, remit, or warranties contained in Section 6(a) of this Contract shall cause to be true in remitted, the estoppel certificates to all material respects as if made as of the Date of Closing.
(2) No part tenants of the Property shall have been acquiredfor signature with any corrections provided by Purchaser. If Purchaser fails to notify Seller of its approval of, or shall be about to be acquired any changes to, the estoppel certificates it receives from Seller for approval within three (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i3) terminate this Contract and receive a full refund business days following Purchaser’s receipt of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closingsame, Seller shall provide Purchaser with an opportunity may forward such estoppel certificates to participate with Seller in any negotiations relating to a Taking affecting any portion all the tenants of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to without Purchaser’s prior approval.
. Estoppel certificates prepared by Seller and approved (4or deemed approved) The Property shall possess all clearancesby Purchaser as provided above are referred to, permitscollectively, occupancy certificates, licenses and registrations necessary for its intended purpose, and as "Approved Estoppels". Notwithstanding the same shall be in full force and effectforegoing, in good standing and the event the condition described in this Section 9(a)(iii) shall not subject have been satisfied, either Seller or Purchaser may elect by notice to any known or threatened challengethe other to extend the Closing for a period not to exceed thirty (30) days in order to satisfy such condition.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
Conditions Precedent to Closing. a. The following conditions shall exist at the time of Closing hereunder, and the obligation of Purchaser to close hereunder shall be expressly conditioned upon, upon and subject to, to the satisfaction (or written waiver by Purchaser) of each of the following conditionssuch condition:
(1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Closing.
(2) No part of the Property A. Seller shall have been acquired, or shall be about delivered to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof Purchaser an estoppel certificate (a “TakingTenant Estoppel”) from at least eighty percent (80%) of the tenants under the Retail Leases. The Tenant Estoppel will be substantially in a form reasonably acceptable to Seller, Purchaser, and Purchaser’s Lender, dated not more than forty-five (45) and not less than fifteen (15) days before the Closing (hereinafter defined). .
B. If such a Taking has occurred or if required by any lender providing financing for Purchaser’s acquisition of the Property, Seller shall have received written notice delivered to Purchaser duly executed originals of subordination, non-disturbance and attornment agreements (the “SNDA Agreements”) from any such contemplated Taking, Tenant that has recorded a Memorandum of Lease that encumbers the Property in the form to be approved by Seller and Purchaser may, at its sole option (i) terminate this Contract during the Feasibility Period and receive a full refund from any Tenant that the Purchaser’s lender requests which by the terms of the Deposit and any interest earned thereonLease is not already self-subordinating; or (ii) continue this Contractprovided, pay the full purchase price without reductionhowever, accept an assignment that if a form of Seller’s rights in any condemnation award (whether received prior SNDA Agreement is attached to or after Closing) and proceed otherwise prescribed in an applicable Lease, then such form shall be deemed to Closing; provided that, (A) be acceptable to Purchaser. Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion deliver all of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising SNDA Agreements without modification prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, C. The Improvements shall not have been complied with damaged by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by fire or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalother casualty.
(4) D. The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same Leases shall be in full force and effect. Each tenant under the Leases shall be in compliance with the terms and conditions of the Leases. Neither Seller (as landlord) nor any Tenant shall be in default in the performance of any of their respective obligations under the Leases.
E. No litigation, injunction, condemnation, rezoning or other action or proceeding shall be pending against the Property.
F. Each of the representations and warranties made by Seller herein shall be true and correct in all material respects on the date of Closing.
G. Title to the Property shall not have changed from the condition which existed on the Effective Date.
H. Seller shall have performed, or Purchaser shall have waived in writing, each and every obligation and covenant of Seller to be performed by it pursuant to this Agreement.
I. Except for the amounts payable by Purchaser in accordance with Section 9.1, Seller shall have paid, and provided satisfactory evidence of such payment to Purchaser, all hard and soft costs payable in connection with full completion of the Retail Condominium improvements and the Residential Condominium improvements, including, without limitation, completion of all common areas associated therewith, in good standing accordance with the plans approved by Purchaser. Such obligation shall include the payment of any retainages held by Seller. If any one or more of conditions set forth above are not satisfied as of the date specified for Closing hereunder, then Purchaser shall, at its option, either (a) waive such condition in writing and not subject to make full Closing under this Agreement without any known adjustment in the Purchase Price, or threatened challenge.
(5b) There terminate this Agreement and obtain a refund of its Deposit, whereupon Seller and Purchaser shall be no unrepaired damage by fire thereupon released from all further liability or other casualty obligation under the Agreement. Purchaser shall have the right to any portion waive some or all of the Propertyforegoing conditions as determined in its sole and absolute discretion; provided, the estimated cost of repair of which however, that no such waiver shall be effective or binding on Purchaser unless it is One Hundred Thousand Dollars ($100,000.00) orin writing and executed by Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Broad Street Realty, Inc.)
Conditions Precedent to Closing. a. The 4.01 Seller's obligation of Purchaser under this Agreement to close hereunder shall be expressly conditioned upon, and consummate the transaction contemplated herein is subject to, to the satisfaction (or written waiver by Purchaser) fulfillment of each of the following conditions:.
(1a) Each The representations and warranties of the representations or warranties Purchaser contained in Section 6(a) of this Contract herein shall be true true, accurate and correct in all material respects as if made as of the Date Closing Date, except to the extent they expressly relate only to an earlier date.
(b) All consents and approvals of governmental authorities and parties to agreements to which Purchaser is a party or by which any asset owned by Purchaser is bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof shall have been delivered to Seller at or prior to the Closing.
(2c) No part On or prior to the Closing Date, (i) Purchaser shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for himself or any of his assets unless the Property same shall have been acquireddischarged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (ii) Purchaser shall not have admitted in writing an inability to pay his debts as they mature, (iii) Purchaser shall not have made a general assignment for the benefit of creditors, (iv) Purchaser shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser, (v) Purchaser shall be about not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against him in any proceeding under any such law or statute, or had any petition filed against him in any proceeding under any such law or statute unless the same shall have been dismissed, canceled or terminated prior to be acquired the Closing Date.
(d) This Agreement shall not have been terminated, if expressly permitted herein.
(e) The closing of title (the "Group A Closing") under and pursuant to that certain Purchase and Sale Agreement, dated April 28, 2000 (as evidenced by written notice thereofamended, the "Group A Agreement"), by authority of any governmental agency and among ▇▇▇▇▇▇ Park Associates, LLC, North Shore Triangle, LLC, Philips Yonkers, LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC, Philips Shopping Center Fund, L.P. and Philips ▇▇▇▇ ▇▇▇▇ Associates, L.P., collectively as Seller, and Kimco Income Operating Partnership, L.P., as Purchaser, for each Property or other authority Ground Lease (each as defined in the exercise Group A Agreement) shall have occurred or the properties to be conveyed thereunder shall have been excluded or postponed pursuant to the terms of its power the Group A Agreement.
(f) All of eminent domain the material conditions to and under the Group B Agreement required to have been satisfied as of immediately before the sale described in Section 1 above shall have been satisfied or waived. For the purposes of this Agreement, the "Group B Agreement" shall mean that certain Asset Contribution, Purchase and Sale Agreement dated April 28, 2000 (as amended), by and among Operating Partnership, Philips International Realty Corp. ("Philips Corp."), Certain Affiliated Parties Signatory Thereto, KIR Acquisition, LLC, and Kimco Income Operating Partnership, L.P.
4.02 Each Purchaser's obligation under this Agreement to consummate the transaction contemplated herein is subject to the fulfillment of each of the following conditions.
(a) The representations and warranties of Seller contained herein shall be true, accurate and correct in all material respects as of the Closing Date, except to the extent they relate only to an earlier date.
(b) All consents and approvals of governmental authorities and parties to agreements to which Seller is a party or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if which any asset of Seller is bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have received written notice of any such contemplated Takingbeen obtained and copies thereof shall have been delivered to Purchaser at or prior to the Closing.
(c) On or prior to Closing Date, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any Taking or agree to any condemnation award without of its assets unless the prior written consent of Purchaser (which consent same shall not be unreasonably withheld or delayed); (B) have been discharged prior to Closingthe Closing Date, Seller and no such receiver, liquidator or trustee shall provide Purchaser with an opportunity have otherwise been appointed, unless same shall have been discharged prior to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and Closing Date, (Cii) Seller shall reasonably cooperate not have admitted in writing an inability to pay its debts as they mature, (iii) Seller shall not have made a general assignment for the benefit of creditors, (iv) Seller shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with Purchaser after Closing respect to itself, (v) Seller shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in prosecuting any claim for a condemnation award arising proceedings under any such law or statute, or had any petition filed against it in any proceeding under any of such law or statute unless the same shall have been dismissed, canceled or terminated prior to Closingthe Closing Date.
(3d) All written notices of violations of governmental orders This Agreement shall not have been terminated, if expressly permitted herein.
(e) The Group A Closing under and pursuant to the Group A Agreement for each Property or requirements noted Ground Lease (each as defined in the Group A Agreement) shall have occurred or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, properties to be conveyed thereunder shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect excluded or postponed pursuant to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and terms of the parties performing such work shall be subject to Purchaser’s prior approvalGroup A Agreement.
(4f) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion All of the Property, material conditions to and under the estimated cost Group B Agreement required to have been satisfied as of repair of which is One Hundred Thousand Dollars ($100,000.00) orimmediately before the sale described in Section 1 above shall have been satisfied or waived.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Philips International Realty Corp)
Conditions Precedent to Closing. a. The obligation of Purchaser (a) Conditions Precedent to close hereunder shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Seller's Obligation to Proceed to Closing.
(i) It shall be a condition precedent to Seller's obligation to proceed to Closing that Seller successfully effectuate the defeasance of that certain loan with a principal balance of Fifty-Two Million Eight Hundred Seventy Thousand Five Hundred Eighty-Six and No/100 Dollars ($52,629,734.01) as of August 10, 2011 (the "Leawood Loan") which currently encumbers the Property.
(A) Within two (2) No business days after the Effective Date, Seller shall provide written notice to ▇▇▇▇▇ Fargo Commercial Servicing (the "Lender") of the transactions contemplated by this Agreement, which notice shall request a closing checklist ("Defeasance Checklist") from Lender which sets forth the requirements of Lender to successfully accomplish the defeasance of the Leawood Loan.
(B) In connection with the defeasance of the Leawood Loan, Buyer shall be responsible for the payment of the defeasance penalty imposed by Section 2.1 of the loan agreement for the Leawood Loan, which Seller and Buyer estimate to total approximately $6,100,000.00 (the "Defeasance Penalty"). Buyer shall be solely responsible for other fees, costs or expenses of any rating agencies, servicers, custodians, servicer's legal counsel, accountants, successor borrower, or any other third-parties involved in the approval and consummation of the defeasance of the Leawood Loan (collectively, the "Defeasance Costs") in an amount not to exceed One Hundred Thirty Thousand and No/100 Dollars ($130,000.00) (the "Defeasance Cost Cap"). In the event that the Defeasance Costs exceed the Defeasance Cost Cap, then Buyer and Seller shall each be responsible for 50% of any Defeasance Costs in excess of the Defeasance Cost Cap (whether or not a Closing occurs). Buyer shall include the amount of the Defeasance Penalty and Buyer's share of the Defeasance Costs along with the Purchase Price which shall be delivered to the Escrow Agent as part of Buyer's closing deliveries. In the Property event Seller is responsible for its prorata share of the Defeasance Costs as provided above, then such amount shall be reflected as a credit to Buyer on the Closing Statement. In the event this Agreement is terminated prior to Closing for any reason other than a default by Seller hereunder or a failure of Seller to obtain Seller's Board Approval (as hereinafter defined), then Buyer shall be responsible for the Defeasance Costs actually incurred in connection with the attempted defeasance of the Leawood Loan, subject to the Defeasance Cost Cap.
(C) If Buyer has not terminated this Agreement prior to the expiration of the Due Diligence Period, then not later than two (2) business days after the expiration of the Due Diligence Period, Seller shall submit to Lender all documents and other items listed on the Defeasance Checklist that are required by Lender to effectuate the defeasance of the Leawood Loan. ▇▇▇▇▇▇ agrees to diligently pursue the defeasance of the Leawood Loan using commercially reasonable efforts to cause the Lender to approve the defeasance of the Leawood Loan as expeditiously as possible.
(D) If the conditions set forth in this Section 6.6(a) above are not satisfied at or prior to Closing, then either Seller or Buyer shall have been acquired, or shall be about the right to be acquired (as evidenced by send written notice thereof)to the other party not less then two (2) business days prior to the originally scheduled Closing Date, by authority to extend the Closing Date for not more than one hundred twenty (120) days to enable Seller to effectuate a successful defeasance of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof Leawood Loan (a “Taking”the "Outside Defeasance Date"). If such a Taking has occurred either Seller or if Seller Buyer shall have received written notice of any such contemplated Takingelect to extend the Closing Date pursuant to the foregoing, Purchaser may, at its sole option then the originally scheduled Closing Date shall be automatically extended until the earlier to occur of: (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereonOutside Defeasance Date; or (ii) continue three (3) business days after Seller has received notice from Lender that all conditions to the defeasance of the Leawood Loan have been satisfied and Lender and Seller are ready, willing and able to close the defeasance of the Leawood Loan. In the event the Leawood Loan is not defeased by the Outside Defeasance Date, then this ContractAgreement shall be deemed to have automatically terminated at which time the ▇▇▇▇▇▇▇ Deposit shall be promptly returned to Buyer, pay and neither of the full purchase price without reductionparties hereto shall have any further obligations under this Agreement, accept an assignment except for the obligations that expressly survive the termination of this Agreement.
(ii) It shall be a further condition precedent to Seller’s rights in any condemnation award 's obligation to proceed to Closing that Seller obtain approval from the Board of Directors of Developers Diversified Realty Corporation to enter into this Agreement and to consummate the transactions contemplated hereby ("Seller's Board Approval") and that Buyer obtain approval from the Board of Glimcher Realty Trust to enter into this Agreement and to consummate the transactions contemplated hereby ("Buyer's Board Approval"). On or before 5:00 pm Eastern Time on September 15, 2011 (the "Board Approval Deadline"), Seller shall deliver written notice to Buyer advising whether received or not Seller's Board Approval has been obtained and Buyer shall deliver written notice to Seller advising whether or not Buyer's Board Approval has been obtained. If either Buyer or Seller does not obtain Board Approval prior to or after Closing) and proceed to Closing; provided thatthe Board Approval Deadline, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent then such party shall not be unreasonably withheld or delayed); (B) in default of this Agreement, but rather a failure of a condition shall have occurred, this Agreement shall automatically terminate and the party failing to obtain Board Approval shall promptly reimburse the other party for any out-of-pocket expenses actually incurred prior to Closingthe Board Approval Deadline subject to the Reimbursement Amount (as hereinafter defined). In the event this Agreement is terminated in accordance with the foregoing, Seller the parties shall provide Purchaser have no further rights or obligations under this Agreement except for the obligations which specifically survive the termination of this Agreement, and the ▇▇▇▇▇▇▇ Deposit shall be returned to Buyer.
(iii) It shall be a further condition precedent to Seller's obligation to proceed to Closing that Buyer shall have performed, observed and complied in all material respects with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion all of the Property or any condemnation award covenants, agreements and conditions required by this Agreement to be made in connection therewith; performed, observed and (C) Seller shall reasonably cooperate complied with Purchaser after Closing in prosecuting any claim for a condemnation award arising by ▇▇▇▇▇ at or prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. The (a) Preconditions To Purchaser's Closing. Purchaser's obligation of Purchaser to close hereunder shall be expressly conditioned upon, and subject to, consummate the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such transactions contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work herein shall be subject to the following conditions precedent, each of which must be fulfilled or waived in writing prior to Purchaser being obligated to consummate the transactions contemplated herein. If any of the following conditions precedent are not fulfilled on or before August 31, 2011, or if Purchaser’s prior approval, in Purchaser's sole discretion, determines that any of the following conditions precedent are not capable of being fulfilled on or before August 31, 2011, then Purchaser may terminate this Agreement without any liability to the Shareholder or Seller or any other party:
i) Due Diligence Review. Purchaser's due diligence review of Seller, the Assets, the Leases, the Contracts, the Business and the Assumed Liabilities must be satisfactory to Purchaser, in Purchaser's sole discretion.
ii) Conduct of Business and Absence of Certain Changes. Since June 30, 2011, except as set forth on Schedule 8(a)(ii), there has not been any material adverse change in the Business, the Assets, the Assumed Liabilities or Seller's operations not applicable to businesses in the industry of the Business generally. Without limiting the generality of the foregoing, there has not been, since June 30, 2011:
(4A) The Property shall possess all clearancesany increase made or promised in the compensation or other remuneration or rates thereof payable, permitsor to become payable, occupancy certificatesby Seller to any employee of the Business, licenses or any material change in any of the terms and registrations necessary conditions of employment of any of the employees of the Business;
(B) any sale or transfer of any Asset other than in the ordinary course of business;
(C) any sale, license, assignment or other transfer by Seller of any of the Intellectual Property;
(D) any amendment to, or termination of, any Contract or Lease, except for its intended purposeterminations of Contracts and Leases that expire in accordance with the terms thereof;
(E) any commitment made by Seller, through negotiations or otherwise, or any liability incurred, to any labor organization with regard to any of Seller's employees;
(F) any discharge or satisfaction of any obligation or liability (whether accrued, absolute, fixed or contingent), other than those discharged or satisfied in the ordinary course of business consistent with past practice and without accelerations;
(G) the adoption or institution of any new bonus, profit-sharing, pension plan, Benefit Plan or similar arrangement or any changes in any such existing plans;
(H) any incurrence (whether discharged or not) of any obligation or liability (whether accrued, absolute, fixed or contingent), other than current liabilities incurred, and the same shall be in full force and effectobligations entered into, in good standing and not subject the ordinary course of business consistent with past practices;
(I) any material loss, damage or destruction to any known of the Assets, whether or threatened challenge.not covered by insurance;
(5J) There shall be no unrepaired damage any other event or condition of any character which materially and adversely affects or threatens to so affect Seller's financial condition, results of operations, business or prospects;
(K) any change in accounting principles or practices from those utilized in the preparation of Seller's Financial Statements, except for changes in accounting principles imposed by fire or the accounting profession generally on businesses in Seller's industry generally; and
(L) any transaction relating to the Business entered into by Seller other casualty to any portion than in the ordinary course of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orbusiness consistent with past practice.
Appears in 1 contract
Sources: Asset Purchase Agreement (General Employment Enterprises Inc)
Conditions Precedent to Closing. a. The 7.1 Unless waived by Purchaser in writing, the obligation of Purchaser to close hereunder shall be expressly conditioned upon, and subject to, the is conditional upon satisfaction (or written waiver by Purchaser) of each of the following conditionsconditions by the Closing Date:
(1) Each 7.1.1 All representations and warranties of the representations or warranties contained in Section 6(a) of this Contract Seller shall be remain true in all material respects as if made and correct as of the Date of Closingclosing.
(2) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if 7.1.2 Seller shall have received written notice performed (or tendered performance of) all material covenants, obligations, terms and provisions of any such contemplated Takingthis Agreement to be performed by Seller.
7.1.3 Seller shall terminate or cause to be terminated the following obligations and matters: a) Lease Agreement between Hallandale School, Purchaser mayLLC , at its sole option as Landlord, and Hallandale Jewish Center, Inc., as Tenant; b) Lease Agreement between Hallandale School, LLC, as Landlord, and National Ben Gamla Charter School Foundation, as Tenant (i) terminate this Contract and receive a full refund to include termination of the Deposit option to purchase contained therein); and any interest earned thereon; c) the obligation to maintain memorial plaques as more particularly set forth in Article XI. E, of that certain Contract for Sale and Purchase, dated on or about May 7, 2008, Hallandale School, LLC, as buyer, and Hallandale Jewish Center, Inc., as seller. With respect to item a), above, the sum of 0ne Hundred Thousand dollars (ii$100,000.00) continue this Contract, pay the full purchase price without reduction, accept an assignment of shall be retained from Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereofclosing proceeds. In the event that any notices the Hallandale Jewish Center, Inc. is still in possession of violations are issued with the property pursuant to its’ lease six (6) months from the date of closing (the “Rent Commencement Date”), then from that date forward, Buyer shall be authorized to withdraw from the retained funds, on a monthly basis, a prorated amount from the Rent Commencement date through May 7, 2013. By way of illustration, if the Closing Date is November 1, 2011, the obligation to pay Buyer “rent” (Buyer reserves the right to allocate a portion of the funds drawn upon as rent and/or administrative expense) would commence May 1, 2012. The $100,000.00 of retained funds would then be prorated over the remaining term, ending May 7, 2013 to determine the monthly payment to the Buyer. In the event that the Hallandale Jewish Center, Inc., remains in possession as a holdover tenant, then Seller hereby agrees to indemnify Buyer for its’ attorney fees (trial and appellate) and costs to bring an eviction action against the tenant. This obligation shall expressly survive closing. With respect to the Property prior to Closingsaid memorial plaques (item c, above), Seller shall indemnify and hold harmless the Buyer herein, from and against all corrective work required thereby shall be performed claims, liabilities and/or lawsuits brought by or paid on behalf of, Hallandale Jewish Center, Inc., arising from or connected to the obligation to maintain the memorial plaques. This provision shall expressly survive closing.
7.1.4 Seller shall provide evidence to Buyer that any claims made by Seller▇▇▇▇▇ ▇▇▇▇ have been released. The natureIf Seller is unable to obtain such a release, extentthen Seller shall indemnify and hold harmless the Buyer from and against any claims, methods obligations, losses or such other impositions, including attorney fees (trial and materials for appellate) and costs incurred by Buyer to defend and/or pay any corrective work such claims. This provision shall expressly survive closing.
7.1.5 Approval of this Option Purchase Agreement by the governing body (i.e., Commission) of the City of Hallandale Beach, Florida, in accordance with the requirements of law.
7.2 In the event any of the foregoing conditions precedent to closing are not satisfied by the Closing Date, then in such event Purchaser shall have the option of (i) canceling this Agreement in which event the Escrow Agent shall return the Deposit, together with interest accrued thereon to Purchaser and the parties performing such work shall be subject to Purchaser’s prior approvalreleased from any further obligations under this Agreement, or (ii) waiving the condition and Closing in accordance with the terms of this Agreement without reduction in the Purchase Price except for the obligations under Sections 4.1 of this Agreement.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Option Purchase Agreement
Conditions Precedent to Closing. a. The obligation Purchaser’s obligations to carry out the terms of this Agreement and to complete its transactions contemplated under this Agreement are subject to the fulfillment to the satisfaction of Purchaser to close hereunder shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of the following conditionsconditions at or prior to the Time of Closing:
(1) A. Each of the representations or warranties Shareholders of BHP and BHP (collectively, the “BHP Group”) shall have complied with all of their respective covenants and agreements contained in Section 6(athis Agreement; and
B. The BHP Group shall transfer, or will cause to be transferred, to Purchaser one hundred percent (100%) of the issued and outstanding BHP membership interests; and
C. The representations and warranties of each of the BHP Group contained in this Contract Agreement or contained in any certificates or documents delivered by any of them pursuant to this Agreement shall be completely true as if such representations and warranties had been made as of the Time of Closing. The conditions set forth above are for the exclusive benefit of Purchaser and may be waived by Purchaser in whole or in part at any time at or before the Time of Closing, as long as such conditions are waived in writing. BHP’s obligation to carry out the terms of this Agreement and to complete the transactions contemplated under this Agreement are subject to the fulfillment to BHP’s satisfaction of each of the following conditions at or prior to the Time of Closing:
A. Purchaser shall have complied with all of its covenants and agreements contained in this Agreement; and
B. The representations and warranties of Purchaser contained in this Agreement or contained in any certificates or documents delivered by it pursuant to this Agreement shall be completely true and correct in all material respects as if such representations and warranties had been made by Purchaser as of the Date Closing Date; and
C. Purchaser shall be current, through March 31, 2017, with its filing obligations with the SEC and/or OTC Markets such that it is labeled as “Current” on OTC Markets; The conditions set forth above are for the exclusive benefit of BHP and may be waived by BHP in whole or in part at or before the Time of Closing, as long as such conditions are waived in writing.
(2) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Agreement for the Exchange of Stock (Joblocationmap Inc)
Conditions Precedent to Closing. a. The obligation of Purchaser 7.01 Conditions Precedent to close hereunder shall be expressly conditioned upon, and subject to, Buyer's Obligations. Satisfaction on or prior ------------------------------------------- to the satisfaction (or written waiver by Purchaser) Closing Date of each of the following conditionsshall be a condition precedent to obligations of Buyer to purchase the Purchased Assets and to pay the required consideration therefor:
(1a) Each Seller shall have delivered all of the Seller's Closing Documents required to be delivered by Seller under the provisions of Section 5.04 and elsewhere in this Agreement, in accordance with the provisions hereof.
(b) Subject to the provisions of Section 4.05 hereof, the representations or and warranties of Seller contained in Section 6(a) of 4.01 and elsewhere in this Contract Agreement shall be true and correct in all material respects as if made as when made, and shall be true and correct in all material respects on the Closing Date, and Buyer shall have received a certificate to that effect by Seller and Seller shall have complied with its covenants and obligations hereunder in all material respects; provided, however, that Buyer shall -------- nonetheless be obligated to close the transactions set forth herein, unless such untruth, inaccuracy or failure, taken together with all other such untruths, inaccuracies or failures, would have a Material Adverse Effect with respect to the Business of all Facilities in the aggregate, not taking into account any obligations of Seller set forth in Section 7.01(k) hereof. Notwithstanding the foregoing, Buyer shall be entitled to a Decrease in the Purchase Price at Closing on account of untruths, inaccuracies or failures of the Seller which Buyer did not have Knowledge of on the Firm Date if such untruths, inaccuracies or failures have resulted in, or are foreseeably likely to result in, any Liability in excess of $100,000 in the aggregate (the "Decrease Threshold") with respect to the Business of all of the Facilities, in which case, the Decrease shall be equal to all Liabilities above the Decrease Threshold up to but not in excess of One Million Dollars ($1,000,000) (which Decrease shall be up to a maximum amount of $900,000). Notwithstanding the foregoing provisions of this Section 7.01(b) there shall be no Decrease hereunder for any matter related to the financial condition of the Business which is subject to the provisions of Section 6.01(l) of this Agreement dealing with a Purchase Price adjuster (whether or not there is an adjustment).
(c) Buyer shall have received a suitability for licensure determination, pursuant to 105 Code of Massachusetts Regulations (S)153.022, from the Department of Health of the Commonwealth of Massachusetts with reference to its acquisition of the Facilities. Buyer shall promptly file all applications, pay all fees, publish all notices, and submit all other materials required in connection with such determination, and shall otherwise make reasonable efforts to obtain such determination. Buyer shall submit all such applications, notices, publications and other materials to Seller simultaneously with submission of such documents for filing or publication and shall keep Seller and its regulatory counsel informed on a regular basis of the status of all such applications, including requests for further information, possible delays and possible obstacles to approval, including delivery to Seller of copies of all communications from Governmental Authorities concerning such applications. On or before October 15, 1998, Buyer shall file its initial application for such determination, and within fifteen days after the execution and delivery of this Agreement, Buyer shall give the notice required by 105 CMR (S)100.250.
(d) No action, suit, or formal administrative proceeding shall have been commenced and be continuing which seeks to enjoin the transactions contemplated by this Agreement or which would have a Material Adverse Effect on the business or financial condition of the Facilities.
(e) If a filing under the ▇▇▇▇-▇▇▇▇▇ Act is required the applicable waiting period under the ▇▇▇▇-▇▇▇▇▇ Act shall have expired or shall have been terminated and no Governmental Authority shall have taken action pursuant to the ▇▇▇▇-▇▇▇▇▇ Act to prevent the Closing.
(2f) No part of the Property Major Casualty or Major Condemnation shall have been acquired, or occurred.
(g) The Average Patient Census shall be about to be acquired not less than 711.
(as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller h) Buyer shall have received written notice of any such contemplated Taking, Purchaser mayobtained, at its sole option cost and expense, a completed appraisal or appraisals in reasonable form which indicates that the value of the Purchased Assets equals or exceeds fifty percent (50%) of the Purchase Price.
(i) terminate this Contract All liens on the Purchased Assets will have been released in full and receive Form UCC-3s will have been filed or delivered for filing as appropriate, except for those relating to leased copiers and postage machines and other Excluded Property.
(j) If Seller has given a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights Seller Continuation Notice in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayedaccordance with Section 2.02(b); (B) prior to Closing, Seller shall provide Purchaser have either cured the unsatisfactory Inspection Matters set forth in the Inspection Termination Notice or provided a Decrease in the Purchase Price on account thereof in accordance with an opportunity to participate with Seller the requirements set forth in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to ClosingSection 2.02(b).
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (Centennial Healthcare Corp)
Conditions Precedent to Closing. a. The obligation Bank shall not be obligated to ------------------------------- make any of Purchaser the Loans or incur any Letter of Credit Obligations, or to close hereunder take, fulfill, or perform any other action under this Agreement, until the following conditions have been satisfied in a manner satisfactory to Bank or waived in writing by Bank:
(a) Bank shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of have received each of the following conditions:documents set forth on the Schedule of Documents, each duly executed by the appropriate parties and in form and substance satisfactory to Bank;
(1A) Each Bank shall have received a fully executed original of a pay-off letter satisfactory to Bank confirming that all of the representations Prior Lender Obligations will be repaid in full from the proceeds of the initial Loan and all Liens upon any of the property of Borrower or warranties contained any of its Subsidiaries in Section 6(afavor of Prior Lender shall be terminated by Prior Lender immediately upon such payment; and (B) all letters of credit issued or guaranteed by Prior Lender shall have been cash collateralized, supported by a guaranty of Bank or supported by a Letter of Credit issued pursuant to this Agreement as mutually agreed upon by Bank, Borrower and Prior Lender; and
(ii) Bank shall have received a fully executed original of a pay-off letter satisfactory to Bank confirming that all of obligations of Borrower to LHF will be repaid in full on the Closing Date, and all Liens upon any of the property of Borrower or any of its Subsidiaries in favor of LHF shall be terminated by LHF immediately upon such payment.
(c) Bank shall have received satisfactory evidence that Borrower and its Subsidiaries have obtained all required consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Contract Agreement and the other Loan Documents and the consummation of the Related Transactions;
(d) all of the assets supporting the initial Loans to be made and Letters of Credit to be issued and the amount, if any, of the reserves to be established on the Closing Date shall be true sufficient in value, as determined by Bank, to provide Borrower with Net Borrowing Availability of not less than $1,750,000 (after giving effect to such initial Loans and Letters of Credit and the amount, if any, of the reserves to be established on the Closing Date in accordance with this Agreement), without any deterioration in Borrower's accounts payable or increase in Borrower's other current liabilities above the average of those reflected on Borrower's balance sheet for the three months preceding the Closing Date;
(e) payment by Borrower of all material respects as if made fees, costs, and expenses of closing (including reasonable fees of consultants and counsel to Bank presented as of the Date of Closing.Closing Date);
(2f) No part of the Property no action, proceeding, investigation, regulation, or legislation shall have been acquiredinstituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby and that, in Bank's sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(g) Bank shall be about to be acquired (as evidenced by written notice thereof)have completed its business and legal due diligence, by authority of any governmental agency or other authority in the exercise including a roll forward of its power of eminent domain or by private purchase in lieu thereof previous Collateral audit, with results satisfactory to Bank;
(a “Taking”). If such a Taking has occurred or if Seller i) Bank shall have received written notice fully executed copies of any such contemplated Takingthe Subordinated Note and each of the other Related Transactions Documents, Purchaser mayeach of which shall be in form and substance satisfactory to Bank and its counsel, at its sole option and (ii) the Related Transactions shall have been consummated in accordance with the terms of the Subordinated Note and the other Related Transactions Documents; and
(i) terminate no Material Adverse Effect shall have occurred since the most recent audited Financial Statements delivered to Bank prior to the Closing Date. If any other term of any Loan Document should conflict, or appear to conflict, with this Contract Section 2.1, the terms of this Section 2.1 shall control, ----------- ----------- and receive a full refund Borrower shall have no rights under this Agreement or any other Loan Document until each of the Deposit and any interest earned thereon; or (ii) continue conditions of this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have Section 2.1 has been complied with ----------- to Bank's satisfaction or specifically waived in writing by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalBank.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation of Purchaser to close hereunder (A) Seller's obligations under Section 1 hereof shall be expressly conditioned upon, and subject to, to the fulfillment to Seller's reasonable satisfaction (prior to or written waiver by Purchaser) of each at the Closing of the following conditions:
(1i) Each The following transactions shall have been consummated and deliveries shall have been made, in each case in a manner reasonably satisfactory to Seller:
(a) Purchaser shall have paid to Seller the amount specified in Section 2.
(b) Purchaser shall have duly made and delivered to Seller the Promissory Note.
(c) Purchaser shall have duly executed and delivered to this Agreement, the Escrow Agreement, and the Pledge. Agreement and shall have delivered to the Escrow Agent ("Escrow Agent") the Pledged Shares (as defined in the Pledge Agreement) together with duly executed stock powers.
(d) The Company shall have duly executed and delivered to Seller this Agreement, the Escrow Agreement and the Guarantee and shall have returned to Seller the Existing Promissory Note, marked and acknowledged by the Company to have been "paid in full."
(e) Seller shall have received a certificate of an authorized officer of each of Purchaser and the Company, dated the Closing Date, certifying that the conditions specified in this Section 10(A) have been fulfilled.
(ii) Seller shall have received an opinion reasonably satisfactory to Seller, dated the Closing Date, from counsel to the Purchaser and the Company, covering the sale of the representations Company Stock, and such other matters thereto and hereto as Seller shall reasonably require and otherwise in form and substance (including any limitations and qualifications) reasonably satisfactory to Seller and its counsel.
(iii) All proceedings and documents in connection with or warranties contained in Section 6(a) incidental to the sale of this Contract the company Stock shall be true reasonably satisfactory to Seller and Seller's counsel, and Seller and Seller's counsel shall have received all such counterpart originals or copies of such documents as it or they may reasonably request.
(iv) The representations and warranties made by each of Purchaser and the Company herein and in the Pledge Agreement and the Guaranty Agreement shall be correct in all material respects as if made at and as of the Date time of the Closing.
(2v) No part Each of Purchaser and the Company shall have, performed all of the Property agreements and complied with all conditions contained herein and in the Pledge Agreement and the Guaranty Agreement, in each case required Eo be performed or complied with by it prior to or at the Closing, and at the time of the closing no default under any of the foregoing shall exist.
(B) Purchaser's obligations under Section 2 hereof shall be subject to the fulfillment to Purchaser's reasonable satisfaction prior to or at the Closing of the following conditions:
(i) The following transactions shall have been acquiredconsummated and deliveries shall have been made, in each case in a manner reasonably satisfactory to Purchaser:
(a) Seller, in its role as majority shareholder of Company, shall have taken all action reasonably proposed or shall be about requested by the Company, to be acquired convert all of Company's Class B, Non-Voting Shares into Class A, Voting Common Shares, on a one basis.
(as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if b) Seller shall have duly delivered to Purchaser the Company Stock together with duly executed stock powers.
(c) Seller shall have duly executed and delivered to Purchaser this Agreement and the Pledge Agreement.
(d) Seller shall have paid to the Company the amount set forth in Section 9 hereof.
(e) Purchaser shall have received written notice a certificate of any such contemplated Takingan authorized officer of Seller, Purchaser maydated the Closing Date, at its sole option (icertifying that the conditions specified in this Section 10(B) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or have been fulfilled.
(ii) continue this Contract, pay All proceedings and documents in connection with or incidental to the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion sale of the Property Company Stock shall be reasonably satisfactory to Purchaser and Purchaser's counsel, and Seller and Seller's counsel shall have received all such counterpart originals or any condemnation award to copies of such documents as it or they may reasonably request.
(iii) The representations and warranties made by Seller herein shall be made correct in connection therewith; all material respects at and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to as of the time of the Closing.
(3iv) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, Seller shall have been performed all of the agreements and complied with all conditions contained herein, in each case required to be performed or complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property it prior to or at the Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Stock Purchase Agreement (Ashton Technology Group Inc)
Conditions Precedent to Closing. a. 5.1 The obligation Closing is conditional on Admission and closing of the US Business Sale Agreement in accordance with its terms.
5.2 The obligations of the Purchaser and the Seller to close hereunder consummate the Escrow Closing shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of conditional on each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be Warranties having been true and correct in all material respects as if when made and being true and correct in all material respects at and as of the Date Escrow Closing irrespective of Closingany disclosure under Clause 6.3(c).
(2) No part 5.3 The parties intend that the Escrow Closing is further conditional upon the Effective Closing of the Property US Business Sale Agreement taking place (as defined in the US Business Sale Agreement), the passing without amendment of the Resolutions and that the Escrow Closing and the Effective Closing of the US Business Sale Agreement shall take place simultaneously.
5.4 Other than the Conditions relating to the US Business Sale Agreement the Purchaser may elect in writing to waive the Conditions in whole or in part.
5.5 The parties will use their commercially reasonable endeavours to procure the satisfaction of the Conditions as soon as practicable and in any event on or before the Long Stop Date.
5.6 If any of the Conditions shall not have been acquired, fully satisfied or duly waived by 23:59 Eastern Standard Time on the Long Stop Date then this Agreement shall lapse and be about deemed void and of no effect without any of the parties being liable to be acquired any other party in any way whatsoever except for breaches of Clauses 19 (as evidenced by written notice thereofConfidentiality) and 14 (Announcements), by authority of .
5.7 If Escrow Closing does not take place on the date set for Escrow Closing in Clause 7.2 because the Seller fails to comply with any governmental agency or other authority in the exercise of its power of eminent domain or obligations under Clause 6 in any material respect, the Purchaser may by private purchase notice in lieu thereof writing to the Seller:
(a) proceed to Escrow Closing to the extent reasonably practicable;
(b) postpone Escrow Closing to a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option date not more than 10 Business Days after the date set for Escrow Closing in clause 7.2; or
(ic) terminate this Contract and receive a full refund Agreement without liability on its part.
5.8 If the Purchaser postpones Escrow Closing to another date in accordance with clause 5.7(c), the provisions of this Agreement apply as if that other date is the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after date set for Escrow Closing in prosecuting any claim for a condemnation award arising prior to Closingclause 7.2.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Business Purchase Agreement (Orchid Biosciences Inc)
Conditions Precedent to Closing. a. 10.1 The obligation obligations of Purchaser Buyer pursuant to close hereunder shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser mayAgreement shall, at its sole the option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this ContractBuyer, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.the following conditions precedent:
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) 10.1.1 There shall be no unrepaired damage by fire material adverse change in the matters reflected in the Title Report, and there shall not exist any material adverse encumbrance or title defect affecting the Property except for the Permitted Exceptions or matters to be satisfied at Closing; provided, however, that matters arising under the Loan Documents from and after the date of this Agreement shall not constitute a material adverse change for purposes of this Section 10.1.1.
10.1.2 Parent shall have obtained and delivered to Buyer estoppel certificates, substantially in the form attached hereto as Exhibit B or in such other casualty form as may be permitted or required in accordance with the terms of their respective Leases, from the following tenants (collectively, the “Required Tenants”): (i) Boehringer Ingelheim Pharmaceuticals, Inc., (ii) Praxair, inc. and (iii) Honeywell International, Inc. An estoppel certificate from a Required Tenant shall be deemed to satisfy this condition precedent unless it discloses material adverse matters inconsistent with the applicable Lease. Buyer shall notify Parent within three (3) business days of receipt of a copy of the executed estoppel certificate from a Required Tenant of its approval or disapproval and the basis of such disapproval, if disapproved. If Buyer disapproves of an estoppel certificate from a Required Tenant because of a material adverse matter disclosed therein that is inconsistent with such Required Tenant’s Lease, and Parent is unable to obtain a reasonably acceptable estoppel certificate from such Required Tenant prior to the Closing, this Agreement shall, at Buyer’s option, terminate, Buyer shall be entitled to a refund of the Deposit, and neither party shall have any portion further obligation to the other except Buyer’s indemnification obligations under Paragraph 5. Parent shall request the Required Tenants and each tenant of the Property to execute an estoppel certificate and shall use commercially reasonable efforts to obtain an estoppel certificate from the Required Tenants and the other tenants of the Property; provided, however, the estimated cost failure to obtain any estoppel certificate from tenants other than the Required Tenants shall not entitle Buyer to terminate this Agreement. If Buyer notifies Parent of repair a failure to satisfy the conditions precedent set forth in this paragraph, Parent may, within five (5) days of which receipt of Buyer’s notices agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be obligated to close the transaction provided Parent so satisfies such condition. If Parent fails to agree to cure or fails to cure such condition within such five day period and such condition is One Hundred Thousand Dollars ($100,000.00) ornot waived by Buyer, this Agreement shall be canceled and the Deposit shall be returned to Buyer and neither party shall have any further liability hereunder.
Appears in 1 contract
Sources: Merger Agreement (Grubb & Ellis Co)
Conditions Precedent to Closing. a. 5.01. The obligation obligations of Purchaser to close hereunder Buyer under this Agreement shall be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each on or before the Closing Date of the following conditions:
(1) Each conditions that all representations and warranties of the representations or warranties Seller contained in Section 6(a) of this Contract Agreement shall be true in all material respects as if made of the date hereof and as of the Closing Date of Closing.
(2) No part as if such representations and warranties were made on and as of the Property shall have been acquiredClosing Date, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if and that Seller shall have received written notice of any such contemplated Takingperformed in all material respects all agreements, Purchaser may, at its sole option (i) terminate covenants and conditions required by this Contract and receive a full refund of the Deposit and any interest earned thereon; Agreement to be performed by them on or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to ClosingDate.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof5.02. In the event that any notices of violations are issued with respect the material conditions to the Property obligations of Buyer are not satisfied or waived on or prior to Closingthe Closing Date, all corrective work required thereby shall be performed then Buyer may terminate and cancel this Agreement by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing delivery of written notice of such work shall be subject action to Purchaser’s prior approvalSellers on such date.
5.03. Proceeds of the Purchase Price are payable to Sellers as set forth in Exhibit “C” attached hereto.
5.04. No default shall exist as of the Closing Date with any loan obligations of Sellers to Buyer.
5.05. On or before the Closing Date, a Sales Agreement must be entered into with R▇▇▇ Homes, or a similar home builder (4any or all hereinafter referred to as “Builder”) The Property shall possess all clearances, permits, occupancy certificates, licenses for the purchase by Builder from the Company of no less than twenty-four (24) lots owned by the Company in a form and registrations necessary for its intended purpose, and the same shall be in full force and effectsubstance acceptable to Buyer, in good standing its sole discretion.
5.06. At Closing the Company will enter into an Option Agreement for the Purchase and Sale of Real Property with B▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Homes, LLC (“BMH”) for purchase by BMH from the Company of the thirty-seven (37) remaining lots not subject to any known or threatened challenge.the above-referenced agreement with Builder upon terms and conditions acceptable to Buyer and to BMH
(5) There 5.07. At Closing the Company shall be no unrepaired damage by fire or other casualty enter into a management contract with BMH to any portion handle administration of the Property, Company and development and sales of the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orlots owned by the Company upon terms and conditions acceptable to Buyer and BMH.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Shepherd's Finance, LLC)
Conditions Precedent to Closing. a. The (a) Purchaser’s obligation of Purchaser to close the transactions hereunder shall be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each of the following conditions precedent, provided that Purchaser, at its election, upon written notice delivered to Seller at or prior to the Closing, may waive all or any of such conditions:
(1i) Each Seller shall have executed and delivered to Purchaser all of the documents required of Seller under this Agreement.
(ii) The Title Company is ready, willing and able to issue to Purchaser an owner’s title policy for the Premises, subject only to the Permitted Encumbrances, and as required pursuant to the terms and conditions of this Agreement.
(iii) Seller shall have performed all of its material covenants, agreements and obligations under this Agreement.
(iv) All of Seller’s representations and warranties set forth in Section 13(b) of this Agreement shall be true and correct in all material respects; provided, however, that it shall not be deemed a failure of a condition to Closing under this Section (and shall also not be deemed a default by Seller) if any such representations or warranties contained in Section 6(a(which were true when made) have become untrue after the date hereof due to any reason that was not caused by an act or omission to act of Seller (which act or omission violates the express terms of this Contract shall be true in all material respects as if made as of the Date of ClosingAgreement).
(2v) No part Existing Lender shall have approved the assumption of the Property shall have been acquired, or shall be about to be acquired (as evidenced Existing Indebtedness by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to ClosingPurchaser.
(3b) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting Seller’s obligation to close the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work transactions hereunder shall be subject to Purchaser’s the satisfaction of the following conditions precedent, provided that Seller, at its election, upon written notice delivered to Purchaser at or prior approvalto the Closing, may waive all or any of such conditions:
(i) Purchaser shall have executed and delivered to Seller all of the documents required of Purchaser under this Agreement.
(4ii) The Property Purchaser shall possess have performed all clearancesof its material covenants, permits, occupancy certificates, licenses agreements and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challengeobligations tinder this Agreement.
(5iii) There Purchaser shall have delivered to Seller the balance of the Purchase Price and the Escrow Agent shall have delivered to Seller the Deposit.
(iv) Existing Lender shall have approved the assumption of the Existing Indebtedness by Purchaser and shall have released Seller and its guarantor from and after the Closing from all of Seller’s and its guarantor’s obligations under the Loan Documents.
(c) Purchaser acknowledges that Seller does not guarantee the satisfaction of the conditions precedent listed in this Section 11 and that Seller’s failure to satisfy such conditions (for any reason other than Seller’s bad faith) shall not be deemed to be a default hereunder but rather, same shall merely be a failure of a condition to Closing, in which event Purchaser’s sole remedy shall be no unrepaired damage by fire or other casualty to any portion terminate this Agreement and receive a refund of the PropertyDeposit. Further, at Seller’s election, Seller shall be permitted to extend the estimated cost Closing Date for any period of repair time up to thirty (30) days in order to satisfy any of which is One Hundred Thousand Dollars the conditions set forth in Section 11 ($100,000.00) ora).
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation of Purchaser to close hereunder shall this Contract shall, at the option of Purchaser, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
a. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract shall be true and correct in all material respects as if made as of the Date date hereof and at closing, and Seller shall not have on or prior to closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Seller's part as required by the terms of Closing.this Contract;
(2) b. There shall be no material adverse change in the matters reflected in the Title Commitment, and there shall not exist any encumbrance or title defect affecting the Subject Property not described in the Title Commitment except for the Permitted Exceptions;
c. There shall be no changes in the matters reflected in the Survey, and there shall not exist any easement, right-of-way, encroachment, waterway, pond, flood plain, conflict or protrusion with respect to the Subject Property not shown on the Survey;
d. No part material and substantial change shall have occurred with respect to the Subject Property which would in any way affect the findings made in the inspection of the Subject Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority described in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Article VI hereinabove; and
e. Purchaser mayobtaining, at its sole option cost and expense, an ALTA Owner Policy of Title Insurance (ithe "Title Policy") insuring Purchaser in the amount of the purchase price that Purchaser has acquired good and marketable title to the Subject Property, subject only to the Permitted Exceptions. Purchaser shall be entitled to request the Title Company to provide at Purchaser's sole cost and expense, such endorsements (or amendments) to the Title Policy as Purchaser may reasonably require so long as such endorsements or amendments do not impose additional liability on Seller nor delay the closing. If any such condition is not fully satisfied by closing, Purchaser may terminate this Contract by written notice to Seller whereupon this Contract shall be cancelled, the ▇▇▇▇▇▇▇ money deposit (less $100.00) shall be returned to Purchaser by the Title Company and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) thereafter neither Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of nor Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and any continuing obligations one unto the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalother.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. 10.1 The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
10.1.1 All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made of the Effective Date and as of the Date of Closing.
(2) No part of the Property shall have been acquiredClosing Date, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking have, on or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Seller's part as required by the terms of this Agreement.
10.1.2 As of the Closing, the Chicago Title Insurance Company ("Title Company") shall be irrevocably committed to issue to Buyer, upon payment of its regularly scheduled premium, its CLTA owner's policy of title insurance, in the amount of the Purchase Price, showing title to the Real Property vested of record in Buyer, subject only to the Permitted Exceptions. If Seller for any reason is unable to deliver title to the Real Property subject only to the Permitted Exceptions or is unwilling to remove or otherwise cure any title matter that is not a Permitted Exception, then Buyer's sole remedy shall be to terminate this Agreement within five days after written notice from Seller of such inability or unwillingness (but not later than the Closing Date) and receive a return of the Deposit, and neither Seller nor Buyer shall thereafter have any further rights or obligations under this Agreement. Notwithstanding the foregoing, it shall be a condition precedent to Buyer's obligation to consummate this transaction, that as of the Closing Date there are no monetary liens or monetary encumbrances not previously approved by Buyer encumbering the Property.
10.1.3 Seller shall provide Purchaser have obtained, and delivered to Buyer prior to the Due Diligence Expiration Date, estoppels in form and substance satisfactory to Buyer (which Buyer acknowledges requires using the form required by such Lease for any government Tenant) from Tenants representing seventy percent (70%) of the leasable area of the Real Property that is leased and occupied as of the Effective Date (to be dated within forty-five (45) days of Closing). Within one (1) business day after Seller receives an executed estoppel from any Tenant, Seller shall deliver a copy there of to Buyer (and shall promptly thereafter send the original thereof to Buyer). Buyer shall notify Seller within three (3) business days of receipt of a copy of the executed estoppel certificate of its approval or disapproval and the basis of such disapproval, if disapproved. If Buyer elects to proceed with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion the purchase of the Property or any condemnation award to be made in connection therewith; as of the Due Diligence Expiration Date and Buyer has not received, as of the Closing, estoppels from Tenants occupying one hundred percent (C100%) of the leasable area of the Real Property, then at Closing, Seller shall reasonably cooperate with Purchaser after Closing also deliver to Buyer a "Seller's Estoppel" in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued form attached hereto as Exhibit I with respect to each such Lease as to which no estoppel from the Property prior Tenant has been received.
10.2 The obligations of Seller pursuant to Closingthis Agreement shall, all corrective work required thereby shall be performed by or paid by at the option of Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s the following conditions precedent:
10.2.1 All of the representations, warranties and agreements of Buyer set forth in this Agreement shall be true and correct in all material respects as of the Effective Date and as of the Closing Date, and Buyer shall not have on or prior approvalto closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer's part as required by the terms of this Agreement.
(4) The 10.2.2 Seller's obligation to sell the Property shall possess all clearancesis subject to the condition precedent that approval of the sale is obtained from the board of directors of G REIT, permitsInc., occupancy certificates, licenses and registrations necessary for its intended purpose, and the same which shall be deemed to have been obtained (and this condition shall in full force and effect, in good standing and such case be deemed satisfied) unless Seller advises Buyer that the sale has been disapproved no later than two (2) business days after the Effective Date. If any such condition is not subject fully satisfied by the Closing (or such earlier applicable date as set forth above with respect to any known or threatened challenge.
specific condition), Buyer shall so notify Seller and may terminate this Agreement by written notice to Seller whereupon this Agreement may be canceled, the Deposit shall be returned to Buyer and, thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder, except as expressly provided in this Agreement. If Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this Section, Seller may, within five (5) There days of receipt of Buyer's notice agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be obligated to close the transaction provided Seller so satisfies such condition. If Seller fails to agree to cure or fails to cure such condition by the Closing Date, this Agreement shall be no unrepaired damage by fire or other casualty canceled and the Deposit shall be returned to Buyer and neither party shall have any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orcontinuing obligations hereunder.
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
9.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquireddate hereof, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent have on or prior to closing, failed to meet, comply with or perform in any Taking material respect any conditions or agree to any condemnation award without agreements on Seller's part as required by the prior written consent terms of Purchaser (which consent this Agreement.
9.2. There shall be no material change in the matters reflected in the Title Report, and there shall not exist any encumbrance or title defect affecting the Property not described in the Title Report except for the Permitted Exceptions or matters to be unreasonably withheld or delayed); satisfied at closing.
9.3. Unless Seller receives notice from Buyer at least thirty (B30) days prior to Closingclosing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking effective as of closing, the management agreement affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free terminated by Seller and clear thereofany and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.4. In the event that any notices of violations are issued with respect to Seller shall have operated the Property from and after the date hereof in substantially the same manner as prior thereto.
9.5. If any such condition is not fully satisfied by closing, Buyer shall so notify Seller and may terminate this Agreement by written notice to ClosingSeller whereupon this Agreement may be canceled, all corrective work required thereby and upon return of the Due Diligence Items the Deposit shall be performed by or paid by Seller. The natureto Buyer and, extentthereafter, methods and materials for neither Seller nor Buyer shall have any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalcontinuing obligations hereunder.
(4) The Property shall possess all clearances9.6. If Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this paragraph, permitsSeller may, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
within five (5) There days of receipt of Buyer's Notices agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be obligated to close the transaction provided Seller so satisfies such condition. If Seller fails to agree to cure or fails to cure such condition by the Closing Date, this Agreement shall be no unrepaired damage by fire canceled and the Deposit shall be returned to Buyer and neither party shall have any further liability hereunder.
9.7. If Buyer's acquisition of the Property is part of a tax-deferred exchange pursuant to Section 1031 of the Code, it is a condition precedent to the closing of this Escrow that Buyer is able to complete an exchange for all or other casualty to any a portion of its relinquished property pursuant to an Exchange Agreement between Buyer and Accommodator. Seller agrees to execute such documents or instruments as may be necessary or appropriate to evidence such exchange, provided that Seller's cooperation in such regard shall be at no additional cost, expense, or liability whatsoever to Seller, and that no additional delays in the Property, the estimated cost scheduled Close of repair of which is One Hundred Thousand Dollars ($100,000.00) orEscrow are incurred unless mutually agreed upon by all parties to this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Conditions Precedent to Closing. a. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
8.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquireddate hereof, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking have on or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closingclosing, Seller shall provide Purchaser failed to meet, comply with an opportunity to participate with Seller or perform in any negotiations relating to a Taking affecting material respect any portion conditions or agreements on Seller's part as required by the terms of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closingthis Agreement.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof8.2. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage change in the matters reflected in the Title Report, and there shall not exist any encumbrance or title defect affecting the Property not described in the Title Report except for the Permitted Exceptions or matters to be satisfied at closing.
8.3. Seller shall have operated the Property from and after the date hereof in substantially the same manner as prior thereto.
8.4. If any such condition is not fully satisfied by fire closing, Buyer shall so notify Seller and may terminate this Agreement by written notice to Seller whereupon this Agreement may be canceled, upon return of the Due Diligence Items the Deposit shall be paid to Buyer and, thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder.
8.5. If Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this paragraph, Seller may, within five (5) days of receipt of Buyer's Notices agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be obligated to close the transaction provided Seller so satisfies such condition. If Seller fails to agree to cure or other casualty fails to cure such condition by the Closing Date, this Agreement shall be canceled and the Deposit shall be returned to Buyer and neither party shall have any further liability hereunder.
8.6. If Buyer's acquisition of the Property is part of a tax-deferred exchange pursuant to Section 1031 of the Code, it is a condition precedent to the closing of this Escrow that Buyer is able to complete an exchange for all or a portion of its relinquished property pursuant to an Exchange Agreement between Buyer and Accommodator. Seller agrees to execute such documents or instruments as may be necessary or appropriate to evidence such exchange, provided that Seller's cooperation in such regard shall be at no additional cost, expense, or liability whatsoever to Seller, and that no additional delays in the Property, the estimated cost scheduled Close of repair of which is One Hundred Thousand Dollars ($100,000.00) orEscrow are incurred unless mutually agreed upon by all parties to this Agreement.
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation of Purchaser (a) Purchaser's obligations to close hereunder title under this Agreement on the Closing Date shall be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each existence of the following conditionsconditions precedent on or prior to the Closing Date:
(1i) Each all of the Seller's representations or and warranties contained made in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Closing Date of Closing.
(2) No part as if they were made on that date; provided, however, that Purchaser shall be obligated to consummate the Closing without any adjustment in the Purchase Price if Loss Events shall have occurred and the aggregate amount of the Property Material Losses resulting therefrom is equal to or less than the Material Loss Threshold. If any Loss Events shall have been acquiredoccurred and the aggregate amount of the Material Losses resulting therefrom exceeds the Material Loss Threshold, Purchaser shall have the option to (a) terminate this Agreement and demand the return of the Deposit (unless Seller shall agree to grant Purchaser a credit against the Purchase Price in an amount equal to the difference between the Material Loss Threshold and the aggregate amount of all Material Losses, in which case Purchaser may not terminate this Agreement; provided that Purchaser shall have no obligation to close if such credit is in an amount in excess of $1,000,000), or (b) recover such Material Loss from Seller at Closing by means of an adjustment or credit to the Purchase Price; provided, however, that Purchaser's credit on account of Material Losses determined prior to Closing shall be about not exceed $1,000,000 pursuant to be acquired this clause (as evidenced by written notice thereof)b) unless Seller expressly agrees to a credit exceeding $1,000,000. Notwithstanding the foregoing, by authority if Purchaser claims a credit against the Purchase Price of any governmental agency or other authority in the exercise more than $1,000,000, on account of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Material Losses Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) the right to terminate this Contract and receive a full refund of Agreement, the Deposit shall be returned to Purchaser and thereafter neither party shall have any interest earned thereon; or (ii) continue obligation to the other except with respect to those provisions expressly stated to survive the termination of this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) Agreement and proceed to Closing; provided that, (A) except that Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent reimburse Purchaser for a portion of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser its expenses actually incurred in connection with an opportunity to participate with Seller in any negotiations relating this transaction up to a Taking affecting any portion maximum amount of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof$25,000. In the event that any notices there is a dispute at Closing as to whether a Material Loss has occurred, the Closing shall occur without adjustment regarding same, provided, however, that a portion of violations are issued the Purchase Price equal to the disputed amount (but in no event more than $1,000,000) shall be held in escrow by the Escrow Agent pending resolution of the dispute and in the event that a Material Loss shall be determined post-closing to have occurred, the amount held in escrow shall be disbursed to Purchaser in accordance with Section 10.26 of this Agreement to the extent of the Material Loss as finally determined and the balance, if any, shall be returned to Seller. Notwithstanding the foregoing, if the amount of the credit claimed by Purchaser on account of Material Losses exceeds $1,000,000 and there is a dispute at Closing as to the amount of such Material Losses, Purchaser may elect either (x) to terminate this Agreement and receive a return of the Deposit or (ii) require Seller to escrow $1,000,000 as provided above pending resolution of the dispute in which case Purchaser shall not be entitled to a recovery or credit in excess of $1,000,000 with respect to such disputed Material Losses claim for which an escrow is created at Closing under the Property immediately preceding sentence.
(ii) the Seller shall have performed all material obligations and agreements undertaken by it herein to be performed (including, without limitation Section 11 of this Agreement) and shall have delivered all documentation required to be delivered by Seller hereunder at or prior to Closing, all corrective work required thereby the Closing Date;
(iii) the Title Insurer shall be performed by ready, willing and able to insure title subject only to the Permitted Encumbrances.
(iv) the aggregate amount of claims under Material Property Litigations shall be less than the Material Litigation Threshold. If, on the Closing Date, there are Material Property Litigations which involve claims that exceed the Material Litigation Threshold, Purchaser shall have the right to terminate this Agreement and receive the return of the Deposit.
(v) The aggregate amount of any Material Adverse Changes shall be less than the MAC Threshold. If, on the Closing Date, Material Adverse Changes shall have occurred which exceed the MAC Threshold, Purchaser shall have the right to terminate this Agreement and receive the return of the Deposit. Except as expressly set forth herein to the contrary, in the event that any of the conditions to Purchaser's obligations to close title under this Agreement are not satisfied on the Closing Date, Purchaser may (but shall have no obligation to), in its sole discretion, adjourn the Closing for a period not to exceed two (2) months, during which period Seller will use commercially reasonable efforts to satisfy such conditions precedent, or paid by terminate this Agreement in which case Purchaser may recover the Deposit and this Agreement shall be of no further force and effect except with respect to those provisions expressly stated to survive the termination of this Agreement.
(b) The Seller. The nature, extent, methods and materials for any corrective work and 's obligations to close title under this Agreement on the parties performing such work Closing Date shall be subject to Purchaser’s prior approval.the satisfaction of the following conditions precedent on the Closing Date:
(4i) The Property shall possess all clearances, permits, occupancy certificates, licenses of Purchaser's representations and registrations necessary for its intended purpose, and the same warranties made in this Agreement shall be true and correct in full force and effect, in good standing and not subject to any known or threatened challenge.all material respects as of the Closing Date as if they were made on that date; and
(5ii) There Purchaser shall have performed all material obligations and agreements undertaken by it herein to be no unrepaired damage by fire performed at or other casualty prior to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orClosing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Reckson Associates Realty Corp)
Conditions Precedent to Closing. a. A. Conditions to the Obligations of Each of the Parties: The obligation of Purchaser each of the parties hereto to close hereunder shall be expressly conditioned upon, and consummate the transactions provided for herein is subject to, to the satisfaction (fulfillment on or written waiver by Purchaser) prior to the Effective Time of each of the following conditions:
(1. The shareholders of Capital shall have duly approved and adopted this Agreement in accordance with and as required by law and in accordance with its Articles of Incorporation and Code of Regulations.
2. All necessary governmental and regulatory orders, consents, clearances and approvals and requirements shall have been secured and satisfied for the consummation of such transactions, including without limitation, those of the Federal Reserve System, the Ohio Division of Financial Institutions, the OCC, the Department of the Treasury, and the Federal Deposit Insurance Corporation to the extent required.
3. Prior to or at the Effective Time, no material investigation by any state or federal agency shall have been threatened or instituted seeking to enjoin or prohibit, or enjoining or prohibiting, the transactions contemplated hereby and no material governmental action or proceeding shall have been threatened or instituted before any court or government body or authority, seeking to enjoin or prohibit, or enjoining or prohibiting, the transactions contemplated hereby other than investigations, actions and proceedings which have been withdrawn prior to or at the Effective Time without material adverse effect to Fifth Third or Capital and other than regularly-scheduled regulatory examinations.
4. Any waiting period mandated by law in respect of the final approval by any applicable Federal or State regulator(s) Each of the transaction contemplated herein shall have expired.
5. Fifth Third shall have registered its shares of Common Stock to be issued to the Capital shareholders hereunder with the SEC pursuant to the Securities Act of 1933, as amended, and with all applicable state securities authorities. The registration statement with respect thereto shall have been declared effective by the SEC and all applicable state securities authorities and no stop order shall have been issued. The shares of Fifth Third Common Stock to be issued to the Capital shareholders hereunder shall have been authorized for trading on the Nasdaq Stock Market upon official notice of issuance.
B. Conditions to the Obligations of Fifth Third: The obligation of Fifth Third to consummate the transactions provided for herein is subject to the fulfillment at or prior to the Effective Time of each of the following conditions unless waived by Fifth Third in a writing delivered to Capital which specifically refers to the condition or conditions being waived:
1. All of the representations or and warranties contained of Capital set forth in Section 6(a) II of this Contract Agreement shall be true and correct in all material respects as of the date of this Agreement and at and as of the Closing Date (as hereinafter defined) as if each such representation and warranty was given on and as of the Closing Date, except for any such representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such date, and except for changes permitted pursuant to the Date terms of Closingthis Agreement after the date hereof
2. Capital shall have performed all of the obligations required of it under the terms of this Agreement in all material respects.
3. Wern▇▇ & ▇lank, Co., LPA counsel for Capital, shall have delivered an opinion addressed to Fifth Third in substantially the form appended hereto as Appendix A.
4. The aggregate amount of consolidated shareholders' equity (2including Common Stock, Additional Paid-In Capital and Retained Earnings and excluding Treasury Stock) No part of Capital immediately prior to the Effective Time, as shown by and reflected in its books and records of accounts on a consolidated basis in accordance with GAAP, consistently applied, shall not be less than $90,500,000. For purposes of this subparagraph 4 to Section VI.B., (A) any expenses or accruals after the date hereof relating to (i) the adjustments contemplated by Section IV.B.(1) herein, (ii) termination or funding of any of Benefit Plans of Capital, Capital Bank and CBNA Building Company as contemplated herein, (iii) adjustments made to reflect expenses and losses in the market value of investments held by Capital or Capital Bank, as required by GAAP, including SFAS 115, and (iv) expenses associated with this Agreement and the transactions contemplated herein, shall be excluded for purposes of calculation of Capital's shareholders' equity as contemplated herein.
5. Fifth Third's independent certified public accountants shall have reviewed the unaudited consolidated financial statements of Capital as at the end of the Property shall month immediately preceding the Effective Time, as well as the unaudited separate financial statements of Capital Bank and CBNA Building Company as of the same date, performed such other auditing procedures as may be requested by Fifth Third and reported in good faith that they are not aware of any material modifications which would have been acquireda material adverse effect on the financial condition of Capital, Capital Bank or CBNA Building Company, on a consolidated basis, that should be made in order for such financial statements to (i) be in conformity with GAAP, consistently applied, excluding the presentation of footnotes, and (ii) accurately state the financial condition and results of operations of Capital, Capital Bank and CBNA Building Company, on a consolidated basis.
6. The receipt of a certificate from Capital, Capital Bank and CBNA Building Company, executed by the chief executive officer and chief financial officer of each, dated the Closing Date, certifying to their best knowledge and belief that: (i) all of the representations and warranties set forth in Section II hereof were true and correct as of the date of this Agreement and as of the Effective Time in all material respects, except for any such representations and warranties made as of a specified date, which shall be about true and correct in all material respects as of such date; and (ii) it has met and fully complied in all material respects with all of the obligations required of it under the terms of this Agreement.
7. The total issued and outstanding shares of Capital Common Stock shall not exceed 7,047,556 shares, and the total number of options to be acquired (as evidenced by written notice thereof)purchase Capital Common Stock shall not exceed 805,415, by authority of any governmental agency or other authority in each case adjusted for the exercise of its power any options which were outstanding as of eminent domain or by private purchase in lieu thereof (a “Taking”)the date of this Agreement and otherwise properly exercised, and for the grant and exercise of any Permitted Option Grants after the date of this Agreement. If Schedule 1 lists of all presently outstanding options to acquire Capital Common Stock, the holders thereof, the dates of issuance, the vesting schedules and the price per share of such a Taking has occurred or if Seller options.
8. With respect to each non-employee director of Capital, Fifth Third shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option either (i) terminate this Contract and receive a full refund of received an executed noncompetetion agreement in the Deposit and any interest earned thereon; form attached as Appendix E, or (ii) continue this Contractwaived the requirement hereof.
9. Fifth Third shall have received an opinion of counsel to Fifth Third, pay dated the full purchase price without reductionEffective Date, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided the effect that, on the basis of facts, representations and assumptions set forth in such opinion, (Ai) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent Merger constitutes a "reorganization" within the meaning of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion Section 368 of the Property or any condemnation award Code. In rendering its opinion, counsel to be made Fifth Third may require and rely upon representations contained in connection therewith; letters from Capital and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to ClosingFifth Third.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, 10. There shall have been complied with by Seller no exercises of options to purchase Capital Common Stock between the date of this Agreement and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalEffective Time.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. 9.1 The obligation execution of Purchaser to close hereunder shall be expressly conditioned uponthe Sale and Purchase which is the purpose of this Agreement (payment of the price and delivery of the Shares), and subject to, thus the satisfaction (or written waiver by Purchaser) of each closing of the following conditions:
(1) Each transaction which is the purpose of this Agreement are expressly conditional on the fulfilment of the representations or warranties contained in Section 6(a) provisions of this Contract shall be true clause prior to the Closing Date (as such term is defined in all material respects as if made as of the Date of Closingclause 10).
9.2 The Conditions Precedent listed in Clause 9.3 (2) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereofi), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay and (iii)(b) are for the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion sole benefit of the Property or any condemnation award Purchaser except with respect to be made the consent provided for in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdictionSchedule 9.2, and any action in any court against or affecting the Property, shall have been complied with express waiver of the Conditions by Seller and the Property Purchaser shall be free and clear thereofequivalent to their performance for the purposes of this Agreement. In the event that the consent provided for in Schedule 9.2 has not been obtained: (i) the Purchaser will not be entitled to waive such condition 9.3(i) in respect of the consent contain in Schedule 9.2 and, (ii) Sellers shall not be entitled to sell or otherwise dispose of the Oil Tankers to which the consents in Schedule 9.2 refer for a period of one (1) year as from the Closing Date. Disposal or sale by Sellers in breach of (ii) above, shall entitle Purchaser to a penalty amounting to US Dollars THIRTY MILLION (30,000,000).
9.3 The obligations of the Purchaser to complete the transaction contemplated in this Agreement shall be subject to:
(i) satisfaction of the condition that the counterparties to the agreements indicated in Schedule 9.3 attached herewith, grant their written consent to the change of control that will result from the transaction contemplated in this Agreement,
(ii) ▇▇▇▇▇ and NFT having transferred and excluded the Non Related Assets and Liabilities pursuant to Clause 6.1; and
(iii) no material adverse change in the business and undertaking of the NFT Group shall have occurred after the 31st of December of 2003. For these purposes, material adverse change is defined as (a) the loss of any notices of violations the Oil Tankers or the LNG Vessels and/or (b) the termination or material modification of either of the Oil Tankers Financing Agreements, the Oil Tankers Charter Party Agreements, the LNG Financing Agreements and/or LNG Charter Party Agreements, and/or (c) any oil spill having material and substantial adverse consequences and/or (d) any other material event which prevents the operation of the Oil Tankers or the LNG Vessels. (collectively the “Conditions Precedent”).
9.4 The Parties shall use their best joint efforts in order to obtain as soon as possible the consents and authorizations referred to in Clause 9.3 above and both Parties shall diligently cooperate in preparing and executing any actions and documents which may be required to such effect.
9.5 The Seller’s Representative shall provide the Purchaser not less than five [5] business days prior to Closing Date with: (a) written confirmation that the Non Related Assets and Liabilities have been transferred and excluded from NFT and ▇▇▇▇▇ and (b) documentary evidence showing the consents obtained pursuant to Clause 9.3. (i).
9.6 Save for the exception provided for in Clause 9.7 below, in the event that five [5] business days prior to the Closing Date, the Conditions Precedent referred to in Clause 9.3 (i) and Clause 9.3 (ii) above have not been met, the Purchaser may elect at its sole option either to;
(a) waive the non fulfillment of such Conditions Precedent except as provided for in Clause 9.2 and continue with the performance of this Agreement; or
(b) terminate this Agreement, in which case the Purchaser shall recover the amount of the Payment on Account together with the interest accrued thereof and, additionally, the Sellers shall, only in the case of non fulfillment of the Condition Precedent provided in Clause 9.3(ii) and subject to clause 9.7, indemnify the Purchaser by means of a penalty on the amount of THIRTY MILLION DOLLARS USD 30,000,000
9.7 Should the exclusion of the Non Related Assets and Liabilities have not been carried out five [5] business days prior to the Closing Date, the Sellers may notify in writing to the Purchaser, no later than three (3) days prior to the Closing Date, that the said exclusion has not been carried out and that an extension is needed in order to proceed with the exclusion. In such a case, the Closing Date shall be postponed for a period of ninety [90] calendar days upon the expiration of which if the exclusion of the Non Related Assets and Liabilities has not taken place, the Purchaser may elect at its sole option to proceed as established in Clause 9.6 (a) or Clause 9.6 (b) above. The non exclusion from ▇▇▇▇▇ or NFT of bank debts amounting in aggregate up to 25,000,000 US$, will not be considered as a non fulfillment of the condition precedent 9.3 (ii). Should the Sellers decide that such debts are to remain in ▇▇▇▇▇ or NFT at Closing Date, then: (i) any and all costs related to such debts’ early amortization will be borne entirely by the Sellers; (ii) the Sellers shall provide a certificate issued by the relevant bank to which the credit stands containing a statement on the exact amount, including but not limited to any related costs and expenses, required to fully amortize the relevant debt as on Closing Date (iii) such bank certificates will be included by the Sellers in the notice to be sent to Purchaser on April 15, 2004, together with any further information as described under Clause 2.6 and shall be taken into account in order to calculate the Price Adjustments pursuant to Clause 2.5. Additionally, the Sellers shall indemnify the Purchaser by means of a penalty in the amount of THIRTY MILLION DOLLARS USD 30,000,000 in case that, the Conditions Precedent above having been fulfilled, the Sellers breach their obligation to execute the Sale and Purchase which is the purpose of this Agreement.
9.8 In the event that the consents referred to in paragraph 9.3.(i) in relation to the transfer of the Oil Tankers have not been obtained by the Closing Date, but all the consents corresponding to the LNG Vessels have been granted, then either of the parties may elect that the transactions contemplated in this Agreement be completed with respect to the Property prior LNG Business, for a price of USD ONE HUNDRED AND SEVENTY MILLION (USD 170,000,000) to Closingbe adjusted in accordance with Clause 2.5. For the purposes of this Clause 9.8, all corrective work required thereby the references contained in this Agreement to the Shipping Business shall be performed by or paid by Sellerdeemed to be made, mutatis mutandi, to the LNG Business. In this event, any reference made in this Agreement to the Sellers shall be deemed to be made, mutatis mutandi, to NFT. As security for the Purchaser’s and the Sellers’ rights under this Clause 10.7, respectively, NFT hereby grants to the Purchaser a Call Option (the “LNG Call Option”) and the Purchaser hereby grants to NFT a Put Option (the “LNG Put Option”) as a means to purchase and sale all and only all the NFT Subsidiaries Shares under the same terms and conditions, mutatis mutandi, of this Agreement, as a means to acquire and transfer the LNG Business. The natureLNG Call Option will be exercised within a term of 15 business days after Closing Date. The LNG Put Option will be exercised within a term of 15 days after the expiration of the term of exercise of the LNG Call Option.
9.9 In the event that the consents referred to in paragraph 9.3.(i) referred to the transfer of the LNG Vessels have not been obtained by the Closing Date, extentthe Purchaser may elect that the transactions contemplated in this Agreement be completed with respect to the LNG Business, methods for a price of USD ONE HUNDRED AND SEVENTY MILLION (USD 170,000,000) to be adjusted in accordance with Clause 2.5., and materials for in this case, the Purchaser shall indemnify the Sellers of any corrective work costs, expenses, losses and damages vis a vis the parties performing banks due to such work lack of consent. For the purposes of this Clause 9.9, the references contained in this Agreement to the Shipping Business shall be subject deemed to be made, mutatis mutandi, to the LNG Business. In this event, any reference made in this Agreement to the Sellers shall be deemed to be made, mutatis mutandi, to NFT. As security for the Purchaser’s prior approval.
rights under this Clause 9.9, NFT hereby grants to the Purchaser a Call Option (4the “Second LNG Call Option”) The Property shall possess as a means to purchase and sale all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and only all the NFT Subsidiaries Shares under the same shall terms and conditions, mutatis mutandi, of this Agreement, as a means to acquire and transfer the LNG Business. The Second LNG Call Option will be in full force and effect, in good standing and not subject to any known or threatened challengeexercised within a term of 15 business days after Closing Date.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. 10.1. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
10.1.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made of the Effective Date and as of the Date of Closing.
(2) No part of the Property shall Closing Date, and Sellershall not have been acquired, on or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser failed to meet, comply with an opportunity to participate with Seller or perform in any negotiations relating to a Taking material respect any conditions or agreements on Seller's part as required by the terms of this Agreement.
10.1.2. There shall not exist any material, adverse encumbrance or title defect affecting any portion of the Property except for the Permitted Exceptions or any condemnation award matters to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to satisfied at Closing.
(3) 10.2. The obligations of Seller under this Agreement shall, at the option of Seller, be subject to the following conditions precedent:
10.2.1. All written notices of violations the representations, warranties and agreements of governmental orders or requirements noted or issued by any public authority having jurisdictionBuyer set forth in this Agreement shall be true and correct in all material respects as of the Effective Date and as of the Closing Date, and any action in any court against Buyer shall not have on or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer's part as required by the terms of this Agreement.
10.3. If any such condition is not fully satisfied by Closing, the party in whose favor the condition runs shall notify the other party and may terminate this Agreement by written notice (in all corrective work required thereby events such written notice shall be performed by given on or paid by Seller. The nature, extent, methods and materials for any corrective work and prior to the parties performing such work Closing Date as it may be extended) whereupon this Agreement shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearancescanceled, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same Due Diligence Items shall be returned to Seller, the Deposit shall be paid to Buyer and, thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder except as otherwise expressly set forth herein; provided, however, that if Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in full force Subsections 10.1.1 and effect10.1.2 Seller may, in good standing and not subject to any known or threatened challenge.
within five (5) There days of receipt of Buyer's notice agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be no unrepaired damage by fire or other casualty obligated to any portion close the transaction contemplated hereby provided Seller so satisfies such condition and such Closing occurs within ten (10) days of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orscheduled Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hartman vREIT XXI, Inc.)
Conditions Precedent to Closing. a. The (a) Purchaser’s obligation of Purchaser to close the transactions hereunder shall be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each of the following conditions precedent, provided that Purchaser, at its election, upon written notice delivered to Seller at or prior to the Closing, may waive all or any of such conditions:
(1i) Each If Purchaser elects to receive Seller Financing, Seller shall have executed and delivered, or shall cause its affiliates to execute and deliver, to Purchaser all of the documents required to effectuate the Seller Financing (the “Seller Financing Documents”).
(ii) Seller shall have executed and delivered, or shall have caused its affiliates to execute and deliver, to Purchaser all of the other documents required of Seller under this Agreement.
(iii) All of Seller’s representations or and warranties contained set forth in Sections 7, 8(a) and 9(b) of this Agreement shall be true and correct in all material respects on the Closing Date.
(iv) Seller’s counsel shall have delivered the legal opinions required under the documentation for FL5 and FL6.
(b) If any condition set forth in Section 6(a) is not satisfied as of the Closing Date, Purchaser may, in its sole discretion, either (i) waive such condition(s) or (ii) terminate this Agreement and receive a refund of the Deposit. Notwithstanding the foregoing, the provisions of this Contract Section 6(b) shall not limit Purchaser’s rights or remedies under Section 13.
(c) Seller’s obligation to close the transactions hereunder shall be subject to the satisfaction of the following conditions precedent, provided that Seller, at its election, upon written notice delivered to Purchaser at or prior to the Closing, may waive all or any of such conditions:
(i) If Purchaser elects to receive Seller Financing, Purchaser shall have executed and delivered, or shall cause its affiliates to execute and deliver, to Seller all of the Seller Financing Documents.
(ii) Purchaser shall have executed and delivered, or shall have caused its affiliates to execute and deliver, to Seller all of the other documents required of Purchaser under this Agreement.
(iii) All of Purchaser’s representations and warranties set forth in Sections 8(b) and 9(a) of this Agreement shall be true and correct in all material respects as if made on the Closing Date.
(iv) Purchaser shall have delivered to Seller the balance of the Purchase Price and the Escrow Agent shall have delivered the Deposit to Seller.
(d) If any condition set forth in Section 6(c) is not satisfied as of the Date of Closing.
(2) No part of the Property shall have been acquiredClosing Date, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at in its sole option discretion, either (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; waive such condition(s) or (ii) continue terminate this ContractAgreement (in which event the Deposit shall be refunded to Purchaser). Notwithstanding the foregoing, pay the full purchase price without reduction, accept an assignment provisions of this Section 6(d) shall not limit Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closingremedies under Section 13.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation of Purchaser Buyer to close hereunder shall be expressly conditioned upon, and purchase the Property from Seller is subject to, to the satisfaction (on or written waiver by Purchaser) of each before the Closing of the following conditions:
(1) Each , which may be waived in whole or in part by Buyer, but only in writing at or prior to Closing or by closing in the absence of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Closingany such writing.
(2a) No part All of the Seller's obligations hereunder shall have been performed with regard to the Property;
(b) Seller must have good and marketable fee simple title to the Property, free and clear of all liens, encumbrances, covenants and conditions, save and except those Permitted Exceptions listed in Section 4 hereof which have been approved by Buyer as set forth below, and no Building or other improvement on the Property shall encroach upon any land adjoining the Property. As set forth above, prior to Closing, Buyer must have been acquiredapproved of those exceptions set forth in Section 4. In the event Buyer makes objection to the legal status of the title to the Property prior to Closing, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in then the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of a reasonable time, not exceeding sixty (60) days, to cure such objection, yet Seller shall have no obligation to cure any objection. If the Seller fails to cure such contemplated Takingobjection to title within sixty (60) days, Purchaser may, at its sole option then the Buyer may elect: (i) terminate to proceed with the Closing pursuant to the terms of this Contract and receive a full refund of the Deposit and any interest earned thereon; Agreement, or (ii) continue this Contract, pay the full to terminate its obligation to purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices Buyer fails to notify Seller of violations are issued with respect its objections to the title to the Property prior to Closing, all corrective work required thereby objections to the title to the Property shall be performed waived by or paid by SellerBuyer. The nature, extent, methods and materials for Seller shall not cause any corrective work encumbrance to be placed on the Property between the date of this Agreement and the parties performing Closing Date ("New Encumbrances") except with the approval of the Buyer which approval shall not be unreasonably withheld or delayed (provided Buyer shall have no obligation to approve any new lease of the Buildings), and Seller shall have the obligation to remove all such work shall be subject to Purchaser’s prior approvalNew Encumbrances (not approved as aforesaid by Buyer) on the Closing Date.
(4c) Buyer must have procured by Closing (including a Phase II report, if Buyer deems necessary), an engineering report assessing the environmental condition of the Property and the Buildings located on the Property, and such report must be acceptable to Buyer, in its sole discretion.
(d) Buyer must have procured by Closing, engineering reports satisfactory to Buyer in its sole discretion, assessing the condition of the roof, roof curbs, the electrical systems, plumbing systems, heating and cooling systems, compressors, built-in appliances, if any, and other mechanical systems within the Buildings, and the structural soundness of the Buildings located on the Property (the "Soundness"), and certifying that the Buildings have been constructed in accordance with all applicable laws, rules and regulations including zoning laws, other building codes and fire codes covering the same (the "Compliance"), and also engineering reports certifying that the Buildings including the roofs and the landscape surrounding the Property drains properly. Each of the reports referenced above must be acceptable to Buyer, in its sole discretion. In the event any such report is unacceptable to the Buyer (but subject to the provisions hereinafter contained), then in such event Seller shall either repair any of the above-referenced items to good working order, or remedy any legal violation, as the case may be, or in the alternative, Seller shall notify Buyer that it will not repair or remediate (as the case may be), in which event, Buyer may terminate its obligations hereunder and the ▇▇▇▇▇▇▇ Money shall be returned to Buyer.
(e) Buyer must have received by Closing (at Buyer's sole cost and expense) a current "as-built" survey of the Property prepared by a registered land surveyor or engineer, certified to the title company and to Buyer in full ALTA form, sufficient to cause the title company to delete the standard printed survey exception (except as to matters occurring after the date of said surveys). If Buyer elects not to procure this survey, this condition will be deemed to have been waived.
(f) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same (including any improvements thereon) shall be in full force substantially the same condition as of the date hereof and effectwhich is in a condition which has not materially diminished after the date of execution hereof subject, however, to normal wear and tear only, provided, in good standing the event the Property is not in the condition described above prior to Closing, Seller shall have the right (but not the obligation) to restore the Property to the condition described in this subparagraph (f), and Buyer would not subject have a right to terminate this Agreement in the event of such restoration. Buyer shall be permitted to enter the Property at any known time, and from time to time, upon reasonable notice (and accompanied by Seller or threatened challengeSeller's representative) in order to satisfy itself that such condition has not materially diminished.
(5g) There Seller must have furnished to Buyer a standard lien waiver acceptable to Buyer's title insurance company certifying that no work has been done within the statutory lien period for mechanics and materialman's liens which has not been paid for, or, if any such work has been done, agreeing to indemnify the title insurance company against any claims arising as a consequence of such work. If any of the foregoing conditions in this Section 17 shall fail to be no unrepaired damage by fire or other casualty satisfied within the time period set forth for each condition with regard to any portion of the Property, Buyer may, at its election: (i) terminate its obligations to purchase the estimated cost Property (in which event the ▇▇▇▇▇▇▇ Money and all interest which has been earned thereon shall be paid to Buyer); or (ii) waive such condition and complete the purchase of repair the Property without any reduction in the Purchase Price. Also, notwithstanding any provisions in this Section 17, if Buyer for any of which is One Hundred Thousand Dollars ($100,000.00) orthe reasons stated elects not to complete the purchase of the Property on May 26, 1995, Seller shall have the right to terminate this Agreement and return the ▇▇▇▇▇▇▇ Money and accrued interest to Buyer. In such event, neither Buyer nor Seller shall have any claims or causes of action against the other arising from such event, and this Agreement shall be of no further force or effect.
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
9.1. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquireddate hereof, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent have on or prior to closing, failed to meet, comply with or perform in any Taking material respect any conditions or agree to any condemnation award without agreements on Seller’s part as required by the prior written consent terms of Purchaser (which consent this Agreement.
9.2. There shall be no change in the matters reflected in the Title Report, and there shall not exist any encumbrance or title defect affecting the Property not described in the Title Report except for the Permitted Exceptions or matters to be unreasonably withheld or delayed); satisfied at closing.
9.3. Unless Seller receives notice from Buyer at least thirty (B30) days prior to Closingclosing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking effective as of closing, the management agreement affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free terminated by Seller and clear thereofany and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.4. In the event that any notices of violations are issued with respect to Seller shall have operated the Property from and after the date hereof in substantially the same manner as prior thereto.
9.5. If any such condition is not fully satisfied by closing, Buyer shall so notify Seller and may terminate this Agreement by written notice to ClosingSeller whereupon this Agreement may be canceled, all corrective work required thereby upon return of the Due Diligence Items the Deposit shall be performed by or paid by Seller. The natureto Buyer and, extentthereafter, methods and materials for neither Seller nor Buyer shall have any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalcontinuing obligations hereunder.
(4) The Property shall possess all clearances9.6. If Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this paragraph, permitsSeller may, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
within five (5) There days of receipt of Buyer’s Notices agree to satisfy the condition by written notice to Buyer, and Buyer shall thereupon be obligated to close the transaction provided Seller so satisfies such condition. If Seller fails to agree to cure or fails to cure such condition by the Closing Date, this Agreement shall be no unrepaired damage by fire canceled and the Deposit shall be returned to Buyer and neither party shall have any further liability hereunder.
9.7. If Buyer’s acquisition of the Property is part of a tax-deferred exchange pursuant to Section 1031 of the Code, it is a condition precedent to the closing of this Escrow that Buyer is able to complete an exchange for all or other casualty to any a portion of its relinquished property pursuant to an Exchange Agreement between Buyer and Accommodator. Seller agrees to execute such documents or instruments as may be necessary or appropriate to evidence such exchange, provided that Seller’s cooperation in such regard shall be at no additional cost, expense, or liability whatsoever to Seller, and that no additional delays in the Property, the estimated cost scheduled Close of repair of which is One Hundred Thousand Dollars ($100,000.00) orEscrow are incurred unless mutually agreed upon by all parties to this Agreement.
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation closing hereunder of Purchaser this Agreement is subject to close hereunder the conditions precedent that (i) each of the conditions precedent to the execution, delivery and effectiveness of each other Transaction Document (other than a condition precedent in any such other Transaction Document relating to the effectiveness of this Agreement) shall be expressly conditioned upon, have been fulfilled and subject to(ii) on or prior to the Closing Date, the satisfaction Seller shall have delivered to the Buyer each of the items specified below in form and substance satisfactory to the Buyer:
(a) Counterparts of this Agreement executed on behalf of the Seller.
(b) Officer’s certificate as to solvency duly executed by an Authorized Officer of the Seller.
(c) Certificate from an Authorized Officer of the Seller, dated as of the date of this Agreement, certifying as to and attaching (i) its constituent documents, (ii) its resolutions or written waiver by Purchaserother action of its general partner approving, among other things, this Agreement and the transactions contemplated hereby, (iii) the incumbency and specimen signature of each of its Authorized Officers authorized to execute this Agreement and the following conditions:
other documents to be delivered by it hereunder (1on which certificate the Buyer may conclusively rely) Each and (iv) a good standing certificate from its state or jurisdiction of incorporation or organization and any other state or jurisdiction in which it is qualified to do business in which the representations or warranties contained in Section 6(a) of this Contract shall failure to be true in all material respects as if made as of the Date of Closingso qualified would reasonably be expected to have a Material Adverse Effect.
(2d) No part of All corporate and legal proceedings and all instruments in connection with the Property shall have been acquired, or transactions contemplated by this Agreement shall be about satisfactory in form and substance to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract Buyer and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to ClosingLead Lender.
(3e) All written notices of violations of governmental orders or requirements noted or A good standing certificate for the Seller issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices Secretary of violations are issued with respect State of Delaware dated as of a date no more than ten (10) days prior to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalClosing Date.
(4f) The Property shall possess all clearancesOpinions of Dechert LLP, permitscounsel to the Seller, occupancy certificatesin form and substance satisfactory to the Buyer and the Lead Lender.
(g) Draft UCC-1 financing statements to be filed on the Closing Date naming the Seller, licenses and registrations necessary for its intended purposeas debtor, the Buyer, as assignor secured party, and the same shall be in full force and effectCollateral Agent, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion as assignee secured party, for the benefit of the PropertySecured Parties, describing the estimated cost Collateral and meeting the requirements of repair the laws of each jurisdiction in which it is One Hundred Thousand Dollars ($100,000.00) ornecessary or reasonably desirable, or in which the Seller is required by applicable law, and in such manner as is necessary or reasonably desirable, to perfect the back-up security interest granted under Section 2.01(j).
Appears in 1 contract
Sources: Purchase and Sale Agreement (AB Private Credit Investors Corp)
Conditions Precedent to Closing. a. The (a) Seller and ▇▇▇▇▇ agree that Seller’s obligation of Purchaser to close hereunder shall be expressly conditioned upon, and proceed with the Closing is subject to, to the satisfaction (or written waiver in writing by Purchaser) of each Seller of the following conditionsconditions (collectively, “Seller’s Closing Conditions”) at or prior to the Closing:
(1i) Each of the representations or warranties contained Buyer shall have delivered those items described in Section 6(a10(b) of this Contract Agreement as provided herein; and
(ii) Each representation and warranty made by Buyer in this Agreement shall be true true, accurate and complete in all material respects as if made of as of the Closing Date. If the satisfaction of any of Seller’s Closing Conditions does not occur on or prior to the Closing Date (as such Closing Date may be extended as expressly set forth in this Agreement), then Seller may elect, in its sole discretion by written notice to Buyer, to: (i) waive the failure of Closingany such unsatisfied Seller’s Closing Conditions and close the transaction contemplated herein; (ii) extend the Closing Date until such time as all such unsatisfied Seller’s Closing Conditions have been satisfied, but in no event more than thirty (30) days after the scheduled Closing Date; or (iii) exercise the remedies provided in Section 17 hereof if the failure of any of Seller’s Closing Conditions is as a result of Buyer’s default under this Agreement.
(2b) No part ▇▇▇▇▇▇ and ▇▇▇▇▇ agree that ▇▇▇▇▇’s obligation to proceed with the Closing is subject to the satisfaction or waiver in writing by Buyer of the following conditions (collectively, “Buyer’s Closing Conditions”) at or prior to the Closing:
(i) Seller shall have delivered those items described in Section 10(a) of this Agreement as provided herein;
(ii) Each representation and warranty made by Seller in this Agreement shall be true, accurate and complete in all material respects of as of the Closing Date.
(iii) The Title Company shall be committed to issuing the Title Policy insuring ▇▇▇▇▇’s title to the Property upon Closing in the form agreed to in accordance with Section 3 herein, subject only to the payment of its premiums (at standard rates) for such policy as set forth herein; and
(iv) Estoppels from Tenants under signed leases as of the Effective Date for which the total area of Tenants delivering Estoppels is not less than 75% of the total leased area of the Property excluding the Pinstripes Tenant and Elestyle 1997 Corp. (the “Required Estoppels”) in Acceptable Form shall have been acquired, or shall be about obtained and delivered to be acquired (as evidenced by written notice thereofBuyer. For the purposes of this Section 11(b)(iv), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion total leased area of the Property or any condemnation award excluding the Pinstripes Tenant space is deemed to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction153,988 square feet, and any action in any court against or affecting 75% of the Property, shall have been complied with by Seller and the Property total leased area is deemed to be 115,491 square feet. Any Estoppel shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be deemed in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or“
Appears in 1 contract
Sources: Real Estate Purchase Agreement (Seritage Growth Properties)
Conditions Precedent to Closing. a. 6.1 The obligation of the Purchaser to close hereunder complete the purchase of the Shares shall be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each of Vendor providing the Purchaser with the following conditionson or before Closing:
(1a) Each A certified copy of resolutions of the Directors of the Company authorizing the transfer of the Shares from the Vendors to the Purchaser, the registration of the Shares in the name of the Purchaser and the issuance of a share certificate in the name of the Purchaser;
(b) Share certificates representing the Shares issued in the name of the Vendors accompanied by a duly executed Irrevocable Power of Attorney to transfer such share;
(c) A share certificate registered in the name of the Purchaser, signed by the President of the Company, representing the Shares; and
(d) The corporate seal and minute books of the Company.
6.2 The conditions precedent set forth in subparagraph 6.1 are for the exclusive benefit of the Purchaser and may be waived by the Purchaser in writing, in whole or in part, on or before Closing. Any such waiver by the Purchaser shall not prejudice or affect the rights of the Purchaser in respect of the warranties and representations of the Vendor set forth in paragraph 1 of this Agreement which shall survive Closing.
6.3 The obligation of the Vendors to complete the sale of the Shares shall be subject to the Purchaser providing the Vendors with the following on or before Closing:
(a) A certified copy of resolutions of the Director of the Purchaser authorizing the issuance of the Purchaser Shares to the Vendors in accordance with paragraph 4.1 hereof and appointing ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ as directors of the Purchaser; and
(b) Share certificates representing the Purchaser Shares issued in the name of the Vendors.
6.4 The conditions precedent set forth in subparagraph 6.3 are for the exclusive benefit of the Vendors and may be waived by the Vendors in writing, in whole or in part, on or before Closing. Any such waiver by the Vendors shall not prejudice or affect the rights of the Vendors in respect of the warranties and representations of the Purchaser set forth in paragraph 2 of this Agreement which shall survive Closing.
6.5 It is mutually understood and agreed by and between the Parties that the terms of this Agreement will be subject to all of the representations and warranties of the Vendors and Purchaser made in or warranties contained in Section 6(a) of pursuant to this Contract shall be Agreement being true and correct in all material respects at Closing and with the same effect as if made at and as of the Date of Closing.
(2) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation occurrence of Purchaser to close hereunder the Effective Date shall be expressly conditioned uponsubject to the satisfaction of conditions precedent customary for transactions of this type and the satisfaction of such other conditions precedent agreed upon by the Steering Committee and the Company, and subject including but not limited to, the satisfaction (or written waiver by Purchaser) following: • The negotiation, execution and delivery of each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued definitive documentation with respect to the Property prior Restructuring contemplated by this Term Sheet and the Restructuring Support Agreement, reasonably acceptable to Closingthe Administrative Agent and the Steering Committee and otherwise consistent with the terms and conditions set forth in this Term Sheet and the Restructuring Support Agreement. • The Steering Committee shall have reasonably determined that the aggregate amount of general unsecured claims will not likely exceed $25 million above a pre-agreed baseline amount for ordinary course payables (the “Claims Cap”), all corrective work required thereby such baseline to be agreed to by the Company and the Steering Committee before March 8, 2013, or the Steering Committee shall have waived such requirement in writing, provided, however, that any claim or counterclaim, if any, that may be asserted by Tishman Construction Corporation shall be performed by or paid by Sellerexcluded from the Claims Cap. The natureIn order to determine the total amount of general unsecured claims, extentthe Company shall require holders of general unsecured claims in excess of $2,500,000 to file a proof of claim within 45 days of the Petition Date. To the extent that the Steering Committee determines that the aggregate amount of general unsecured claims will likely exceed the Claims Cap and does not waive such condition to the Effective Date, methods and materials the Steering Committee will consent to an extension of any relevant milestones in this Term Sheet to allow for any corrective work the Company and the parties performing such work Steering Committee to estimate and/or object to any applicable claims. • Confirmation of the Pre-Packaged Chapter 11 Plan by the Bankruptcy Court, on terms consistent with this Term Sheet and the Restructuring Support Agreement. • Gaming authority approvals, as necessary. • The Company shall be subject cooperate on a timely basis with all licensing and other regulatory requests required in order to Purchaser’s prior approval.
consummate the transactions contemplated hereby. Releases & Exculpation To the fullest extent permitted by applicable law, the Restructuring shall include a full release from liability in favor of the Company, the Existing Equity Holders, the Administrative Agent, the Existing Lenders, and all current and former direct and indirect equityholders, members, partners, subsidiaries, affiliates, funds, managers, managing members, officers, directors, employees, advisors, principals, attorneys, professionals, accountants, investment bankers, consultants, agents, and other representatives (4including their respective equityholders, members, partners, subsidiaries, affiliates, funds, managers, managing members, officers, directors, employees, advisors, principals, attorneys, professionals, accountants, investment bankers, consultants, agents, and other representatives) The Property shall possess all clearancesof the Company, permitsthe Existing Equity Holders, occupancy certificates, licenses and registrations necessary for its intended purposethe Administrative Agent, and the same Existing Lenders from any claims and causes of action related to the Company arising on or prior to the Effective Date. To the fullest extent permitted by applicable law, the Restructuring shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion include a customary exculpation provision providing a standard of liability for the conduct of the Property, professionals during the estimated cost course of repair of which is One Hundred Thousand Dollars ($100,000.00) orthe Chapter 11 Cases.
Appears in 1 contract
Conditions Precedent to Closing. a. The 9.1 Purchaser’s obligation of Purchaser to close hereunder shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1) Each of the representations or warranties contained in Section 6(a) of under this Purchase Contract shall be true subject to and conditioned upon the fulfillment in all material respects as if made of each and all of the following conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser at the Closing pursuant to the terms and conditions hereof shall have been delivered and shall be in form and substance required by this Purchase Contract.
9.1.2 Seller’s representations and warranties set forth in this Purchase Contract shall have been true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date and as of the Effective Date as though such representations and warranties were made at and as of such date and time.
9.1.3 Seller shall have complied with, fulfilled and performed, in each case in all material respects, each of the covenants, terms and conditions to be complied with, fulfilled or performed by Seller hereunder.
9.1.4 There shall not be pending or, to the knowledge of either Purchaser or Seller, any litigation or threatened litigation which, if determined adversely, would restrain the consummation of any of the transactions contemplated by this Purchase Contract or declare illegal, invalid or nonbinding any of the covenants or obligations of the Purchaser.
9.1.5 The Improvements (including, but not limited to, the mechanical systems, plumbing, electrical, wiring, appliances, fixtures, heating, air conditioning and ventilating equipment, elevators, boilers, equipment, roofs, structural members and furnaces) shall be at Closing in substantially the same condition as on the Effective Date of Closingthis Purchase Contract except for normal wear and tear and such damage from casualty or condemnation that is waived or accepted under ARTICLE 13 hereof.
(2) No part 9.1.6 The conversion of the Property shall have been acquired, or shall be about Owner from a Georgia limited liability company to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority a Delaware limited liability company in accordance with the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund laws of the Deposit and State of Delaware on or prior to the Closing Date. Seller hereby agrees to reasonably cooperate (at no third party cost to Seller) with Purchaser in effecting such conversion.
9.2 Without limiting any interest earned thereon; or (ii) continue of the rights of Seller elsewhere provided for in this Purchase Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior obligation to or after Closing) and proceed close with respect to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion conveyance of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work under this Purchase Contract shall be subject to and conditioned upon the fulfillment of each and all of the following conditions precedent:
9.2.1 Purchaser’s prior approvalrepresentations and warranties set forth in this Purchase Contract shall have been true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date and as of the Effective Date as though such representations and warranties were made at and as of such date and time.
(4) The Property 9.2.2 Purchaser shall possess all clearanceshave complied with, permits, occupancy certificates, licenses fulfilled and registrations necessary for its intended purpose, and the same shall be in full force and effectperformed, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion each case in all material respects, each of the Propertycovenants, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orterms and conditions to be complied with, fulfilled or performed by Purchaser hereunder.
Appears in 1 contract
Sources: Purchase and Sale Contract (Preferred Apartment Communities Inc)
Conditions Precedent to Closing. a. 12.1 The obligation obligations of Purchaser Seller to close hereunder deliver title to the Property and to perform the other covenants and obligations to be performed by Seller on the Closing Date shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of to the following conditions:conditions (all or any of which may be waived, in whole or in part, by Seller):
(1a) Each of the The representations or and warranties contained in Section 6(a) of this Contract made by Purchaser herein shall be true and correct in all material respects with the same force and effect as if though such representations and warranties had been made on and as of the Date of ClosingClosing Date.
(2b) No part Purchaser shall have delivered to Seller all of the documents provided herein for said delivery.
12.2 The obligations of Purchaser to accept title to the Property shall have been acquired, or and to perform the other covenants and obligations to be performed by Purchaser on the Closing Date shall be about subject to the following conditions (all or any of which may be acquired (as evidenced by written notice thereof)waived, in whole or in part, by authority Purchaser):
(a) The representations and warranties made by Seller herein shall be true and correct in all material respects with the same force and effect as though such representations and warranties had been made on and as of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof Closing Date.
(a “Taking”). If such a Taking has occurred or if b) Seller shall have received written notice of any such contemplated Taking, performed all covenants and obligations undertaken by Seller herein in all respects and complied with all conditions required by this Agreement to be performed or complied with by it on or before the Closing Date.
(c) The Title Company is unconditionally prepared to issue to Purchaser may, at its sole option a Title Policy meeting the requirements set forth in Section 4 hereof for an "insurable title".
(i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (Ad) Seller shall not consent have delivered to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion all of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim documents provided herein for a condemnation award arising prior to Closingsaid delivery.
(3e) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the The Real Property shall be free in compliance with the Transfer Act. Seller shall, at Seller's sole cost and clear thereofexpense, make all submissions to, provide all information to and comply with all requirements of the Connecticut Department of Environmental Protection or its successor. In the event that any notices of violations are issued with respect the Real Property is not an establishment subject to the Property Transfer Act, prior to the Closing, all corrective work required thereby shall be performed by Seller shall, at its sole cost and expense, provide to Purchaser an affidavit of an officer, member or paid by Seller. The nature, extent, methods and materials for any corrective work and manager of Seller stating that the parties performing such work shall be Real Property is not an establishment which is subject to Purchaser’s prior approvalthe provisions of the Transfer Act.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5f) There shall not be no unrepaired damage by fire or other casualty to any portion of sewer moratorium affecting the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mack Cali Realty Corp)
Conditions Precedent to Closing. a. 8.1 The obligation of Purchaser Seller’s conditions precedent The Seller shall not be obliged to close hereunder shall be expressly conditioned upon, and subject to, perform its obligations at Closing as set forth in Clause 9.2 unless the satisfaction following conditions precedent are satisfied (or written waiver waived by Purchaserthe Seller) of each not later than at Closing:
1. There shall not have been any material adverse changes in the assets, condition, or prospects of the following conditions:Buyer since 31 December 2015;
(1) Each of the representations 2. The Buyer’s Representations and Warranties and any certificate or warranties contained in Section 6(a) of other writing delivered pursuant to this Contract Agreement qualified as to materiality shall be true and correct in all respects, and those not so qualified shall be true and correct in all material respects, at and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case such representations and warranties shall be so true and correct as of such earlier date);
3. The other parties to the ROFR Agreement and Voting Agreement shall have consented to the Seller becoming a party to such agreements on the terms contemplated in connection with the Seller’s acceptance of becoming a party to these;
4. No litigation, injunction, order or other similar legal proceeding shall have been instituted against Buyer, which litigation, injunction, order or proceeding is reasonably likely to restrain in any material adverse way or prohibit the consummation of the transaction contemplated by this Agreement; and
5. The Buyer shall have performed and complied in all material respects with its obligations under this Agreement prior to and at Closing so that the transaction contemplated by this Agreement is not in any material respect adversely affected. JKM/JKM/1037031 16 MAY 2016
8.2 The Buyer’s conditions precedent The Buyer shall not be obliged to perform its obligations at Closing as if made set forth in Clause 9.3 unless the following conditions precedent are satisfied (or waived by the Buyer) not later than at Closing:
1. There shall not have been any material adverse changes in the assets, condition, or prospects of the Business since the last statutory accounts date (for the statutory accounts accounting for the Business) or any material change in the ability of the Business to operate on a stand-alone basis after the Closing Date in accordance with the financial and business projections provided by the Seller to the Buyer;
2. The Seller’s Representations and Warranties and any certificate or other writing delivered pursuant to this Agreement qualified as to materiality shall be true and correct in all respects, and those not so qualified shall be true and correct in all material respects, at and as of the Closing Date of Closing.
(2) No part as though made on and as of the Property Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case such representations and warranties shall be so true and correct as of such earlier date);
3. The Seller shall have executed and delivered a counterpart signature page agreeing to become a party to the ROFR Agreement and Voting Agreement;
4. The Seller shall have executed and delivered the Adoption Agreement;
5. The Seller shall have executed and delivered the Observer Agreement;
6. Each director and officer of the Subsidiaries shall have delivered their written resignations effective as of the Closing Date;
7. The Seller shall have delisted the Seller’s capital stock from the Oslo Axxes (Oslo Stock Exchange) and terminated its registration under applicable Law;
8. The Seller shall have obtained and delivered to Buyer the Required Consents;
9. The Seller has documented that the transaction contemplated by this Agreement has been duly and finally approved by the shareholders of the Seller at an extraordinary general meeting (EGM) by equivalent action with the required majority;
10. The Seller has documented prior to or at the time of Signing that the majority shareholder of the Seller, Sorana A/S, has in writing committed to vote in favour of this Agreement in a general meeting of the Seller to be held between Signing and Closing;
11. No litigation, injunction, order or other similar legal proceeding shall have been acquiredinstituted against Seller, which litigation, injunction, order or proceeding is reasonably likely to restrain in any material adverse way or prohibit the consummation of the transaction contemplated by this Agreement; and JKM/JKM/1037031 17 MAY 2016
12. The Seller shall have performed and complied in all material respects with its obligations under this Agreement, including without limitation the obligations set forth in Clause 13.1, prior to and at Closing so that the transaction contemplated by this Agreement is not in any material respect adversely affected.
8.3 The Parties shall use their best efforts and act in good faith to ensure that the conditions precedent set forth in Clauses 8.1 and 8.2 are satisfied not later than on 15 July 2016 or, failing to meet the said date, as soon as possible thereafter.
8.4 The Buyer shall expedite the filing of all required notifications to any competition authorities. To this end the Parties and their legal advisers shall work together and shall without undue delay share all information relevant for the notification procedures, including any and all filings and correspondence with the competition authorities, unless the sharing of such information is contrary to applicable Law, in which case such information shall only be shared on an external counsel-to-counsel basis, to the extent legally permissible.
8.5 If any of the conditions precedent set forth in Clauses 8.1 and/or 8.2 is not satisfied and is not capable of being satisfied as part of Closing (and such condition precedent is not waived by the Party who may waive the condition precedent) on 31 August 2016 at the latest, or shall be about to be acquired on such other date as the Parties may subsequently agree upon, the Seller and/or the Buyer, as applicable (as evidenced depending upon which of the Parties that may waive the condition precedent), may not later than on the tenth (10th) Business Day after that date terminate this Agreement with immediate effect by written notice thereof)to the other Party, failing which notice this Agreement shall be consummated as contemplated herein, unless prohibited by authority law. Notwithstanding the above, a Party may not rely on the failure of any governmental agency or other authority in the exercise condition precedent to be satisfied as grounds for terminating this Agreement if such failure is caused by such Party’s breach of its power obligation to use its best efforts or to act in good faith to ensure that such condition precedent is satisfied.
8.6 In case of eminent domain or by private purchase termination of this Agreement as set forth in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller Clause 8.5 neither of the Parties shall have received written notice any liability towards the other unless the reason why the condition(s) precedent was (were) not satisfied is a consequence of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit Parties being in breach of any of its obligations under this Agreement, including a breach of any of its representations and any interest earned thereon; or (ii) continue warranties given in this ContractAgreement. For clarity and the avoidance of doubt, pay the full purchase price without reduction, accept an assignment of Seller’s rights obligation to obtain and deliver the Required Consents as set out in Clause 8.2.8 is a commercially reasonable effort obligation as described in Clause 4.2.1. In case of any condemnation award (whether received prior termination of this Agreement caused by a Party being in breach of any of its obligations under this Agreement, the other Party shall be entitled to or after Closing) and proceed exercise any remedy available according to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion this Agreement. JKM/JKM/1037031 18 MAY 2016
8.7 Each of the Property or any condemnation award Parties undertakes as soon as reasonable practicable to be made disclose in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect writing to the Property prior other any circumstance or fact that will or is reasonably likely to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for prevent any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Propertyconditions precedent from being satisfied upon becoming aware of such circumstance or fact. Moreover, each of the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orParties undertakes to inform the other in writing as soon as reasonable practicable when such Party has become aware that a condition precedent has been satisfied.
Appears in 1 contract
Sources: Business Transfer Agreement
Conditions Precedent to Closing. a. The obligation obligations of Purchaser pursuant to close hereunder shall this Contract shall, at the option of Purchaser, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
A. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract shall be true and correct in all material respects as if made of the date hereof and as of the Date date of Closingclosing, and Seller shall not have on or prior to closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Seller's part as required by the terms of this Contract.
(2) No part of B. There shall be no change in the matters reflected in the Title Commitment, and there shall not exist any encumbrance or title defect affecting the Property not described in the Title Commitment except for the Permitted Exceptions or matters to be satisfied at closing.
C. There shall be no changes in the matters reflected in the Survey, and there shall not exist any easement, right-of-way, encroachment, waterway, pond, flood plain, conflict or protrusion with respect to the Property not shown on the Survey.
D. Purchaser shall have been acquiredreceived executed originals or copies, certified by Seller as being true and correct, of all Leases and Permits, including all warranties, licenses and permits in Seller's possession relating to the Property, all of which shall, at Purchaser's option, be assigned to Purchaser or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if designee at closing.
E. Seller shall have received written notice of any operated the Property from and after the date hereof in substantially the same manner as prior thereto.
F. Seller shall have delivered to Purchaser an estoppel letter from each Tenant not affiliated with Purchaser, which letter shall be in form and substance substantially identical to the estoppel letter attached hereto as Exhibit J and, in addition, a letter from Seller addressed to each such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund Tenant --------- informing such Tenant of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights change in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion ownership of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices estoppel letter reveals a material default in any lease or does not confirm that the lease terms are substantially the same as represented in the rent roll provided to Purchaser, Purchaser shall have the right to terminate this Contract. For purposes of violations are issued with respect this subparagraph H, the term "substantially the ----------------- same" shall mean that there is no material variance in lease terms from those ---- set forth in the rent roll delivered by Seller pursuant to Article III hereof. Notwithstanding the foregoing, if Purchaser has the right to terminate by virtue of the terms of this section, Seller may provide an indemnification to Purchaser, which indemnification must be in form and content and from an indemnitor reasonably satisfactory to Purchaser, for any amounts that may be lost by virtue of the variance in lease terms, in which case Purchaser's right to terminate shall be void and of no effect. Purchaser agrees that US West Real Estate, Inc., a Colorado corporation, is a satisfactory indemnitor.
G. Seller shall have delivered to Purchaser a current Non-Residential Use Permit for Building 6 and for Building 15 and a current Non-Residential Use Permit for the space occupied by each tenant at Building 6 or Building 15, as applicable.
H. Seller shall have recorded that certain Amendment No. 1 to Amended and Restated Declaration of Protective Covenants and Restrictions for Dulles Corner now in escrow at Chicago Title Company.
I. The parties shall have entered into a mutually acceptable agreement regarding operation of the fitness club incorporating and elaborating on the items set forth in Exhibit O attached hereto. --------- If any such condition is not fully satisfied by closing, Purchaser may terminate this Contract by written notice to Seller whereupon this Contract may be cancelled, the Deposit shall be paid to Purchaser and, thereafter, neither Seller nor Purchaser shall have any continuing obligations hereunder. Notwithstanding anything to the Property contrary contained in this Article VIII, if Purchaser notifies Seller that Purchaser elects to terminate this Contract on account of a failure to satisfy the conditions precedent set forth in this Article VIII, Seller may, by written notice to Purchaser given on or before the closing date, agree to satisfy the condition, and Purchaser shall thereupon be obligated to close the transaction, provided such cure is effectuated prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvaldate of closing.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. 10.1 The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
10.1.1 All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made of the Effective Date, and Seller shall not have on or prior to Closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Seller’s part as required by the terms of this Agreement.
10.1.2 There shall be no material adverse change in the matters reflected in the Title Commitment, and there shall not exist any material adverse encumbrance or title defect affecting the Property except for the Permitted Exceptions or matters to be satisfied at Closing.
10.1.3 Seller shall have obtained and delivered to Buyer estoppel certificates in substantially the same form as Exhibit F attached hereto and incorporated herein, from Tenants representing eighty-five percent (85%) of the square feet which are leased and occupied by Tenants as of the Date Effective Date. Prior to delivery to Tenants, Seller shall provide copies of all completed estoppel certificates to Buyer for review at least four (4) days prior to delivery to any Tenant for review and execution. Buyer’s failure to review or respond to Seller regarding the completed estoppel certificates during such four (4)-day time period shall be deemed approval of the completed estoppel certificates, and Seller shall be authorized to deliver such estoppel certificates to Tenants for execution; however, Buyer’s failure to review or comment on the completed estoppel certificates within such review period shall not be deemed an approval of the specific Tenant information reflected thereon or a waiver of any representations of Seller hereunder. Estoppel certificates shall be deemed to satisfy this condition precedent unless they disclose material adverse matters. If Buyer disapproves of an estoppel certificate because of a material, adverse matter disclosed therein which is inconsistent with the Leases, and Seller is unable to obtain a reasonably acceptable estoppel certificate prior to the Closing, this Agreement shall terminate, Buyer shall be entitled to a refund of the Deposit, and neither party shall have any further obligation to the other except Buyer’s indemnification obligations under Section 5. Notwithstanding the foregoing, if a Tenant’s Lease provides for a different standard for an estoppel certificate, compliance therewith by Seller shall be deemed to compliance herewith.
(2) No part 10.1.4 Escrow Holder shall be unconditionally prepared to issue the Title Policy in accordance with the terms of this Agreement and the Title Commitment.
10.2 The obligations of Seller under this Agreement shall, at the option of Seller, be subject to the following conditions precedent:
10.2.1 All of the Property representations, warranties and agreements of Buyer set forth in this Agreement shall be true and correct in all material respects as of the Effective Date, and Buyer shall not have on or prior to Closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer’s part as required by the terms of this Agreement.
10.2.2 Seller shall have been acquiredreceived approval of the sale from all entities and/or individuals comprising Seller no later than fifteen (15) business days after the Effective Date. In the event Seller does not receive approval from all necessary entities, or Seller shall be about reimburse Buyer for its direct, actual out-of-pocket costs and expenses relating to be acquired this transaction, not to exceed Fifty Thousand Dollars (as evidenced $50,000). Buyer’s reimbursement request shall include detailed, paid invoices evidencing payment of such out-of-pocket costs actually incurred by Buyer.
10.3 If any such condition is not fully satisfied by Closing, the party in whose favor the condition runs shall notify the other party and may terminate this Agreement by written notice thereof)whereupon this Agreement may be canceled, the Due Diligence Items shall be returned, and the Deposit shall be paid to Buyer and, thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder; provided, however, if Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this Section, Seller may, within five (5) days after receipt of Buyer’s notice (the “Notice Period”) agree to satisfy the condition by authority of any governmental agency or other authority in written notice to Buyer, and Buyer shall thereupon be obligated to close the exercise of its power of eminent domain or by private purchase in lieu thereof transaction provided Seller so satisfies such condition within an additional five (a 5) day period (the “TakingExtended Closing Date”). If Seller fails to agree to cure such a Taking has occurred condition during the Notice Period or if fails to cure such condition by the Extended Closing Date, this Agreement shall be canceled, the Deposit shall be returned to Buyer, the Due Diligence Items shall be returned to Seller and neither party shall have received written notice of any such contemplated Takingfurther liability hereunder, Purchaser may, at its sole option (i) terminate except as expressly set forth in this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to ClosingAgreement.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. The (a) Purchaser’s obligation of Purchaser under this Agreement to close hereunder shall be expressly conditioned upon, and purchase the Parking Garage is subject to, to the satisfaction (or written waiver by Purchaser) fulfillment of each of the following conditions:, subject, however, to the provisions of Section 7(c):
(1i) Each The representations and warranties of the representations or warranties Seller contained in Section 6(a) of this Contract Agreement shall be true in all material respects as if made materially true, accurate and correct as of the Closing Date except to the extent they relate only to an earlier date;
(ii) Seller shall be ready, willing and able to deliver title to the Parking Garage in accordance with the terms and conditions of this Agreement; and
(iii) Seller shall have delivered all the documents and other items required by Section 8, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the Seller at or prior to the Closing. Purchaser acknowledges and agrees that its obligation to perform under this Agreement is not contingent upon Purchaser’s ability to obtain any (A) governmental or quasi-governmental approval of changes or modifications in use, zoning or subdivision, (B) modification of any existing land use restriction, (C) site plan approval or building permit, or (D) consents to assignments of any service contracts, management agreements or other agreements which Purchaser desires.
(2b) No part Seller’s obligation under this Agreement to sell the Parking Garage to Purchaser is subject to the fulfillment of each of the Property shall have been acquiredfollowing conditions, or shall be about subject, however to be acquired (as evidenced by written notice thereof), by authority the provisions of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option Section 7(c):
(i) terminate the representations and warranties of Purchaser contained in this Contract Agreement shall be materially true, accurate and receive a full refund correct as of the Deposit and any interest earned thereon; or Closing Date except to the extent they relate only to an earlier date;
(ii) continue Purchaser shall have delivered the Purchase Price and other funds required hereunder and all the documents to be executed by Purchaser set forth in Section 9, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received Agreement to be performed or complied with by Purchaser at or prior to the Closing;
(iii) on or after Closing) and proceed prior to Closing; provided thatClosing Date, (A) Seller Purchaser shall not consent have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any Taking of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or agree trustee shall have otherwise been appointed, unless same shall have been discharged prior to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed)Closing Date; (B) Purchaser shall not have admitted in writing an inability to pay its debts as they mature; (C) Purchaser shall not have made a general assignment for the benefit of creditors; (D) Purchaser shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser; and (E) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, cancelled or terminated prior to Closingthe Closing Date; and
(iv) Prior to Closing to occur, Seller Philadelphia City Council shall provide Purchaser with have passed, and the Mayor of the City of Philadelphia shall have signed, (A) an opportunity to participate with Seller in any negotiations relating to a Taking affecting any ordinance partially vacating the portion of the Parking Garage lying beneath the beds of 15th, Arch and 16th Streets; (B) an ordinance authorizing the Commissioner of Public Property or any condemnation award to be made in connection therewithrecord the Declaration against the Property; and (C) an ordinance authorizing the Commissioner of Public Property to convey the Parking Garage to Purchaser. Enactment of such ordinances prior to Closing shall be referred to in this Agreement, collectively, as the “Ordinance Condition.” By its signature on this Agreement, the Department of Public Property agrees to transmit to City Council forms of ordinance described in clauses (A)-(C) of this Section 7(b)(iv). Purchaser acknowledges that the Department of Public Property has no ability (1) to cause City Council to introduce the forms of ordinance or to enact the forms of ordinance, or (2) to cause the Mayor of the City of Philadelphia to sign the ordinances if they are approved by City Council. [ORDINANCES SHOULD BE ENACTED PRIOR TO EXECUTION OF THIS AGREEMENT. IF SO DELETE THIS CLAUSE (iv) AND ALL REFERENCES TO THE ORDINANCE CONDITION.]
(c) If any condition contained in Section 7(a) or (b) is not satisfied, the party entitled to the satisfaction of that condition as a condition to its obligation to close title hereunder shall have as its sole remedy hereunder the right to elect (i) to waive the unsatisfied condition, whereupon title shall close as provided in this Agreement or (ii) to terminate this Agreement. By closing, Purchaser and Seller shall reasonably cooperate with Purchaser after Closing be conclusively deemed to have waived the benefit of any remaining unfulfilled conditions set forth in prosecuting Section 7(a) or (b), respectively. If that party elects to terminate this Agreement, this Agreement shall be terminated and thereafter neither party shall have any claim further rights, obligations or liabilities hereunder except for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdictionthe Surviving Obligations, and any action except that if Purchaser terminates this Agreement because of a condition contained in any court against or affecting the PropertySection 7(a) is not satisfied, shall have been complied with by Seller and the Property then Purchaser shall be free and clear thereofentitled to a return of the Deposit provided Purchaser is not otherwise in default hereunder. In Nothing contained in this Section 7(c) shall be construed so as to bestow any right of termination upon a party for the event failure of a condition to be satisfied unless that any notices of violations are issued with respect party is expressly entitled to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion satisfaction of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars condition as provided in Section 7(a) or ($100,000.00) orb).
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions Precedent to Closing. a. The obligation Notwithstanding anything to the contrary herein, the obligations of Purchaser to close hereunder pay the Purchase Price and to perform Purchaser’s other obligations at the Closing under this Agreement are and shall be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each of the following conditionsconditions on or prior to the Closing Date:
(1a) Each All tenants pursuant to the Leases shall be open, operating and paying in full all rental payments due under their respective leases, and shall not otherwise be in default of their lease.
(b) As of the Closing Date, the representations or warranties contained made by Seller to Purchaser as of the Effective Date shall be true, accurate and correct as if specifically remade at that time; provided, however, that if the failure of a condition is within the control of Seller and caused by Seller’s actions in breach of this Agreement, then Purchaser shall be entitled to its remedies as provided in Section 6(a16(a) of this Contract Agreement.
(c) At the Closing, the Title Company shall issue to Purchaser the Title Policy, provided that if the Title Company’s failure to issue to Purchaser the Title Policy is due to Purchaser’s failure to satisfy any of the Title Company’s requirements for issuance of the Title Policy that are not obligations of Seller under this Agreement, then this condition precedent shall be true deemed to have been satisfied.
(d) [intentionally omitted]
(e) No Major Tenant, nor any other tenant whose leased premises contain rentable square feet of over 3,000 square feet, shall have terminated, or given notice of intent to terminate, its Lease or shall have vacated, abandoned, ceased operations or filed for voluntary bankruptcy or be subject to an involuntary bankruptcy proceeding, provided that the expiration of the term of one or more Leases and vacation of the applicable tenant(s) after the Effective Date shall not constitute a failure of this condition precedent.
(f) Seller shall have, in all material respects as if made as of respects, (i) performed all covenants and obligations, and (ii) complied with all conditions, required by this Agreement to be performed or complied with by Seller on or before the Closing Date of or each such covenant, obligation and condition shall be waived by Purchaser in writing and in its sole and absolute discretion prior to the Closing.
(2g) No part of the Property shall have been acquired, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser maydelivered to Purchaser, at its sole option or prior to the Closing Date, all of the Required Tenant Estoppel Certificates, REA Estoppels, and any required SNDAs, in accordance with Section 9 of this Agreement.
(h) Seller shall have delivered at Closing (i) terminate all the documents provided for in Section 11 of this Contract Agreement and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion possession of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Medalist Diversified REIT, Inc.)
Conditions Precedent to Closing. a. A. Conditions to the Obligations of Each of the Parties. The obligation of Purchaser each of the parties hereto to close hereunder shall be expressly conditioned upon, and consummate the transactions provided for herein is subject to, to the satisfaction (fulfillment on or written waiver by Purchaser) prior to the Effective Time of each of the following conditions:
(1) Each . The shareholders of Franklin shall have duly approved the representations or warranties Merger and the plan of merger contained within this Agreement in Section 6(a) of this Contract shall be true accordance with and as required by law and in all material respects as if made as of the Date of Closingaccordance with Franklin's Charter and Bylaws.
(2) No part of the Property . All necessary governmental and regulatory orders, consents, clearances and approvals and requirements shall have been acquiredsecured and satisfied for the consummation of such transactions, or shall be about including without limitation, those of the Federal Reserve System, the Ohio Division of Financial Institutions, the OCC and the Federal Deposit Insurance Corporation to be acquired (as evidenced by written notice thereof)the extent required and, by authority of any governmental agency or other authority in the exercise case of its power Fifth Third's obligation, none of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Takingorders, Purchaser mayconsents, at its sole option (i) terminate this Contract clearances and receive a full refund of the Deposit approvals and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s a Burdensome Condition.
3. Any waiting period mandated by law in respect of the final requisite approval by any applicable Regulatory Agency of the transaction contemplated herein shall have expired.
4. No order or injunction of any federal or state agency or court shall be in effect preventing, prohibiting or enjoining the transactions contemplated by this Agreement.
5. Fifth Third shall have registered its shares of Fifth Third Common Stock to be issued to the Franklin shareholders hereunder with the SEC pursuant to the Securities Act, and with all applicable state securities authorities. The registration statement with respect thereto shall have been declared effective by the SEC and all applicable state securities authorities and no stop order shall have been issued and be continuing. The shares of Fifth Third Common Stock to be issued to the Franklin shareholders hereunder shall have been authorized for trading on the Nasdaq National Market upon official notice of issuance.
B. Additional Conditions to the Obligations of Fifth Third and Fifth Third Financial. The obligation of Fifth Third and Fifth Third Financial to consummate the transactions provided for herein is subject to the fulfillment at or prior approvalto the Effective Time of each of the following additional conditions unless waived by Fifth Third in a writing delivered to Franklin which specifically refers to the condition or conditions being waived:
1. The representations and warranties of Franklin contained herein shall be true and correct both as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date.
2. Franklin shall have performed all of the obligations required of it under the terms of this Agreement in all material respects.
3. Fifth Third shall have received a certificate from Franklin, executed by its chief executive officer and chief financial officer, dated the Closing Date, certifying to each of such officers' best knowledge and belief that the conditions set forth in Section VI.B.1. and VI.B.2. have been satisfied.
4. No investigation or action by any state or federal agency shall have been threatened in writing or instituted seeking to enjoin or prohibit or unwind the transactions contemplated hereby and no governmental action or proceeding shall have been threatened or instituted before any court or governmental body or authority, seeking to enjoin or prohibit or unwind, the transactions contemplated hereby or seeking to impose material sanctions or penalties as a result thereof (other than investigations, actions and proceedings which have been withdrawn prior to the Closing without a Material Adverse Effect on Fifth Third or Franklin, and other than regularly scheduled regulatory examinations).
5. At or prior to the Effective Time, Fifth Third shall have entered into written employment, severance and/or non-competition agreements with each of (a) Gordon Inman, (b) Myers Jones, (c) Richard Herrington, (d) George J. R▇▇▇, ▇▇., ▇▇d (e) ▇▇▇▇ M▇▇▇▇▇ve on ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ to Fi▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ of the for▇▇▇▇▇▇ ▇▇▇▇▇▇duals.
(4a) The Property In consideration of the consummation of the Merger, each of the Directors of Franklin and Bank Subsidiary (except those persons who enter into an agreement as required by VI.B.5 above) shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purposereceive a cash payment from Fifth Third in the amount of $5,000, and each Director of Franklin (except those persons who enter into an agreement as required by VI.B.5 above) shall have executed and delivered to Fifth Third an agreement by which such Directors shall agree for a period of three years after the same shall be Effective Time to refrain from directly or indirectly, whether for his or her own account or for the account of any other person, firm, corporation, or other business organization, (i) in full force and effectthe states of Kentucky or Tennessee, engage in good standing and not subject providing Banking Services (as defined below) as an employee, officer, director, or consultant on behalf of any other business organization who is a competitor of Fifth Third, (ii) provide Banking Services to any known Client (as defined below), (iii) make any statement or threatened challengetake any actions that may interfere with Fifth Third's or any Affiliate's business relationships with any Client, (iv) contact either directly or indirectly any Client or otherwise induce or attempt to induce any Client to enter into any business relationship with any person or firm other than Fifth Third or an Affiliate relating to Banking Services of any type, (v) endeavor or entice away from Franklin or Fifth Third any person who the Director has actual knowledge that such person is, or was at any time during the period the Director was employed by Franklin or Fifth Third or during the Restricted Period, employed by or associated with Fifth Third or Franklin as an executive, officer, employee, manager, salesperson, consultant, independent contractor, representative or other agent, or (vi) take any actions that may interfere with Fifth Third's property rights in lists of Clients or otherwise diminish the value of such lists to Fifth Third. Notwithstanding any provision contained in this Section 6, the restrictions contained herein shall not be applicable to any activity of the Director or any activity of his or her spouse which existed at the time of this Agreement and which was disclosed by the Director to Fifth Third, and may be waived by Fifth Third with respect to one or more Directors in writing at any time and from time to time in Fifth Third's sole discretion after receipt of a written request from any Director.
(5b) There The term "Restricted Period" shall be no unrepaired damage by fire or other casualty to any portion of mean the Property, period beginning on the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orEffective Time and ending three years thereafter.
Appears in 1 contract
Sources: Affiliation Agreement (Franklin Financial Corp /Tn/)
Conditions Precedent to Closing. a. The 6.1 In addition to any other conditions to Purchaser’s obligation of Purchaser to close set forth in this Agreement, Purchaser’s obligation to close hereunder is subject to each and all of the following conditions precedent:
A. All of Sellers’ representations and warranties contained in this Agreement shall be expressly conditioned upontrue and correct in all material respects when made and also as of the Closing Date when remade.
B. All documents, instruments and assurances required hereunder to be delivered to Purchaser shall have been duly delivered to Purchaser.
C. All material covenants and agreements of Sellers under this Agreement shall have been duly performed and satisfied.
D. At Closing, either Fidelity National Title Insurance Company or First American Title Insurance Company (each or together, as the context requires, in its capacity as title insurance company hereunder, the “Title Company”) will be committed to deliver to Purchaser one or more ALTA owner’s extended coverage title insurance policies (and, in the case of Properties in Texas, a standard form of Owner’s Policy of Title Insurance as prescribed by the Texas State Board of Insurance), insuring title to each Property subject only to the Permitted Exceptions, in an amount not less than the portion of the Purchase Price allocated to such Property set forth on Schedule I (each, a “Title Policy” and collectively, the “Title Policies”), provided that (i) in advance of Closing, Purchaser shall have taken all necessary and customary actions to arrange for or allow issuance of such Title Policies by Title Company, and subject to(ii) all necessary premiums or other charges required for the issuance of such Title Policies are paid pursuant to Section 12.1 (not including any such amounts to be paid by Sellers hereunder). In the event this Agreement is terminated due to the failure of a condition to Closing other than a default hereunder by Purchaser or Seller, Purchaser and Sellers shall each bear one-half (1/2) of the cost of any cancellation fees charged by Title Company and Escrowee in connection with the issuance of commitments for the Title Policies and escrow services, respectively, and in the event this Agreement is terminated pursuant to a default hereunder by Purchaser or Seller, the satisfaction defaulting party shall pay all of the cost of any cancellation fees charged by Title Company and Escrowee in connection with the issuance of commitments for the Title Policies and escrow services, respectively. The immediately preceding sentence shall survive the termination of this Agreement.
(i) Albertsons Companies, LLC, a Delaware limited liability company, or written waiver by Purchaser(ii) upon a conversion of Albertsons Companies LLC into a corporation, that corporation, or (iii) upon a merger of Albertsons Companies LLC into a corporation, that surviving corporation (any of the foregoing, “Guarantor”), as guarantor under each lease, shall satisfy one of the following conditions: (a) a corporate family credit rating of not less than “B2” from ▇▇▇▇▇’▇ Investors Service, Inc. or (b) a credit rating of not less than “B” from Standard and Poor’s Ratings Group. Without limiting anything contained in Section 5.2, in the event any of the foregoing conditions in this Section 6.1 are not satisfied (other than by reason of a default hereunder by Purchaser) and the Closing does not occur, (a) Purchaser may terminate this Agreement, (b) Sellers shall cause Escrowee to refund immediately the ▇▇▇▇▇▇▇ Money Deposit to Purchaser, and (c) Purchaser shall be entitled to reimbursement from Sellers for all Purchaser’s Costs and Expenses within two (2) business days after written request therefor by Purchaser, together with invoices and other documentation evidencing same as may be reasonably requested by Sellers This paragraph shall survive termination of this Agreement.
6.2 In addition to any other conditions to Sellers’ obligation to close set forth in this Agreement, Sellers’ obligation to close hereunder is subject to each and all of the following conditions precedent:
(1) Each A. All of the Purchaser’s representations or and warranties contained in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if when made and also as of the Closing Date of Closingwhen remade.
(2) No part of the Property B. All documents, instruments and assurances required hereunder to be delivered to Sellers shall have been acquired, or shall be about duly delivered to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract Sellers.
C. All material covenants and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent agreements of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, under this Agreement shall have been complied with by Seller duly performed and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalsatisfied.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Purchase and Sale Agreement (Albertsons Companies, LLC)
Conditions Precedent to Closing. a. A. The obligation of Purchaser to close hereunder shall this Contract shall, at the option of Purchaser, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
a. All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract shall be true and correct in all material respects as if made as of the Date of Closing.
(2) No part of the Property shall have been acquireddate hereof and at closing, or shall be about to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent have on or prior to closing, failed to meet, comply with or perform in any Taking material respect any conditions or agree to any condemnation award without agreements on Seller’s part as required by the prior written consent terms of Purchaser (which consent this Contract.
b. There shall be no change in the matters reflected in the Title Commitment, and there shall not be unreasonably withheld exist any encumbrance or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller title defect affecting the Subject Property not described in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim Title Commitment except for a condemnation award arising prior to Closingthe Permitted Exceptions.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdictionc. There shall be no changes in the matters reflected in the Survey, and there shall not exist any action in any court against easement, right-of-way, encroachment, waterway, pond, flood plain, conflict or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued protrusion with respect to the Subject Property prior not shown on the Survey.
d. Purchaser shall have obtained a standard Texas owner’s form of title insurance policy (the “Title Policy”) issued by the Title Company and insuring Purchaser in the amount of the Purchase Price that Purchaser has acquired good and indefeasible title to the Subject Property, subject only to the Permitted Exceptions. The Title Policy shall be at the sole cost and expense of the Seller, including modification of the standard survey exception so that it is limited to “shortages in area”. Purchaser shall also be entitled to request the Title Company to provide, at Purchaser’s sole cost and expense, such other extended coverage and endorsements (or amendments) to the Title Policy as Purchaser may reasonable require so long as such endorsements or amendments are at no cost to Seller nor impose additional liability on Seller or delay the Closing (the endorsements herein are not a condition precedent to Closing). Purchaser acknowledges and agrees that the Title Policy may be actually delivered at a reasonable time following the closing so long as Purchaser has received at closing a current and binding Title Commitment obligating the Title Company to deliver the Title Policy.
e. Seller shall provide to Purchaser written evidence, all corrective work required thereby reasonably acceptable to Purchaser, showing the termination of the lease of the Land and Improvements between TTLC, as lessor, and T76, as lessee. If any such condition is not fully satisfied by closing, Purchaser’s sole remedy shall be performed either (a) to terminate this Contract by written notice to Seller whereupon this Contract shall be cancelled, the ▇▇▇▇▇▇▇ money deposit (less $100.00) shall be returned to Purchaser by the Title Company and thereafter neither Seller nor Purchaser shall have any continuing obligations one unto the other (except for the obligations that expressly survive termination), or paid by Seller. The nature(b) proceed with closing of the transaction hereunder notwithstanding such condition.
B. Provided that Purchaser has applied for the Building Permit (as defined below) and is diligently pursuing the procurement of same, extentthe obligation of Purchaser to close this Contract shall, methods and materials for any corrective work and at the parties performing such work shall option of Purchaser, also be subject to the condition precedent that Purchaser shall have obtained a building permit (the “Building Permit”) to make certain improvements to the Subject Property necessary to operate a ▇▇▇▇▇ & Wollensky Restaurant. If such condition is not fully satisfied by closing, Purchaser’s prior approval.
sole remedy shall be either (4a) The Property to terminate this Contract by written notice to Seller whereupon (i) this Contract shall possess all clearancesbe cancelled, permits(ii) the initial ▇▇▇▇▇▇▇ money deposit of $25,000 shall be delivered to Seller by the Title Company, occupancy certificates, licenses and registrations necessary for its intended purpose(iii) any other ▇▇▇▇▇▇▇ money deposited with the Title Company by Purchaser to extend the closing date as set forth in Article IX hereunder shall be returned to Purchaser by the Title Company, and (iv) thereafter neither Seller nor Purchaser shall have any continuing obligations one unto the same shall be in full force and effectother (except for the obligations that expressly survive termination), in good standing and not subject to any known or threatened challenge.
(5b) There shall be no unrepaired damage by fire or other casualty to any portion proceed with closing of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) ortransaction hereunder notwithstanding such condition.
Appears in 1 contract
Sources: Contract of Sale (Smith & Wollensky Restaurant Group Inc)
Conditions Precedent to Closing. a. 8.1. Each of Seller and Purchaser shall use commercially reasonable efforts to timely fulfill those of the following conditions as are its obligation hereunder.
8.2. The obligation obligations of Purchaser to close hereunder shall be expressly conditioned upon, on the purchase and sale of the Assets are subject to, to the satisfaction (or written waiver by Purchaser) of each of the following conditions:
(1i) Each Tender of the representations or warranties contained documents to be executed by Seller as of the Closing, as provided in Section 6(a9.1 hereof.
(ii) of All consents provided in Section 7.3(a), and the Landlord Estoppels provided in Section 7.4, shall have been obtained.
(iii) On the Closing Date, all representations and warranties made by Seller in this Contract Agreement shall be true and correct in all material respects as if made on and as of the Date of ClosingClosing Date.
(2iv) No part The Title Company shall be prepared to issue the Title Policies showing Purchaser as owner of the Property shall have been acquiredFee, or shall be about and as vested in a leasehold interest as to be acquired the Restaurant Leaseholds, in each case subject only to such exceptions as are acceptable to Purchaser (as evidenced by written notice thereofthe "Permitted Exceptions").
(v) On the Closing Date, by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to be in material default in the performance of any Taking covenant or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award agreement to be made in connection therewith; and (C) performed by Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closingunder this Agreement.
(3vi) All written notices The execution and delivery of violations of governmental orders or requirements noted or issued this Agreement by any public authority having jurisdictionSeller, and any action in any court against or affecting the Propertyperformance of its covenants and obligations under it, shall have been complied with duly authorized by all necessary corporation action, and Purchaser shall have received copies of all resolutions pertaining to that authorization, certified by the secretary of Seller.
8.3. The obligations of Seller to close the purchase and sale of the Property Assets are subject to the satisfaction of the following conditions:
(i) Tender of the Purchase Price, reduced or increased by any credits and adjustments, and tender of the documents to be executed by Purchaser as of the Closing, as provided in Section 9.1 hereof.
(ii) All consents provided in Section 7.3(a) shall have been obtained.
(iii) On the Closing Date, all representations and warranties made by Purchaser in this Agreement shall be free true and clear thereof. In correct in all material respects as if made on and as of the event that Closing Date.
(iv) On the Closing Date, Purchaser shall not be in material default in the performance of any notices of violations are issued with respect covenant or agreement to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalPurchaser under this Agreement.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation initial disbursement of Purchaser to close hereunder the ------------------------------- Revolving Loans shall be expressly conditioned upon, and subject to, the satisfaction (or written waiver by Purchaser) of each of to the following conditionsconditions precedent:
(1a) Each The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded and or filed where necessary and delivered to the Lender, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrower.
(b) No Default or Event of the Default shall have occurred and be continuing.
(c) All representations or and warranties contained in Section 6(a) of this Contract herein shall be true in all material respects as if made as and correct at the date of the Date of Closing.
(2d) No part All legal matters incident to the Loans shall be satisfactory to counsel for the Lender, and the Borrower agrees to execute and deliver to the Lender such additional documents and certificates relating to the Loans as the Lender may reasonably request.
(e) If required by the Lender, the Lender shall have received an opinion of counsel to the Property Borrower as to such matters as the Lender may request, in form and substance satisfactory to the Lender and its counsel.
(f) The Lender shall have received a certification by an acceptable provider of financing statement searches of all financing statements of public record which relate or pertain to the Borrower and its Subsidiaries, termination statements shall have been acquiredfiled with respect to any financing statements not constituting Liens permitted by this Agreement, or and all other required releases have been obtained, so that no Liens other than Liens permitted by this Agreement shall be about exist, and all taxes and fees with respect to be acquired (as evidenced such recording and filing shall have been paid by written notice thereof), the Borrower. The Lender shall also have received a certification by authority an acceptable provider of judgments and tax lien searches of the absence of any governmental agency judgements or tax liens of public record against the Borrower and/or the Subsidiaries.
(g) If requested by the Lender, the Borrower shall have delivered to the Lender (i) certified copies of evidence of all corporate actions taken by the Borrower to authorize the execution and delivery of this Agreement, the Revolving Note and the other authority Loan Documents, (ii) a certificate of incumbency for the officers of the Borrower executing the Loan Documents required herein, (iii) a good standing certificate dated not more than 30 days prior to the date of the Closing from the appropriate state official of any state in which the exercise of its power of eminent domain Borrower is incorporated or by private purchase in lieu thereof qualified to do business, and (a “Taking”). If iv) such a Taking has occurred additional supporting documents as the Lender or if Seller counsel for the Lender may reasonably request.
(h) [Reserved]
(i) The Lender shall have received written notice of any such contemplated Takingevidence satisfactory to it that the Borrower has obtained the insurance required by this Agreement, Purchaser mayincluding, at its sole option (i) terminate this Contract and receive a full refund of without limitation, endorsements to the Deposit and any interest earned thereon; Borrower's insurance policies naming the Lender as loss payee or (ii) continue this Contractadditional insured, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closingas applicable.
(3j) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, The Lender shall have been complied with by Seller received such landlord and the Property mortgagee waivers as it shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approvalrequest.
(4k) The Property No material adverse change in the financial or business condition of the Borrower or a Subsidiary shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and have occurred since the same shall be in full force and effect, in good standing and not subject to any known or threatened challengedate of the most recent financial statements of such Person received by the Lender.
(5l) There No litigation or proceedings shall be no unrepaired damage by fire pending or other casualty to any portion threatened which, in the Lender's sole judgment, will materially and adversely affect the financial condition, operation, or prospects of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orBorrower or any Subsidiary.
Appears in 1 contract
Conditions Precedent to Closing. a. The obligation of Purchaser (A) Seller’s obligations to close hereunder shall be expressly conditioned upon, and consummate the transactions contemplated by this Agreement are subject to, the satisfaction (or written waiver by Purchaser) of each of to the following conditions:
(1) Each of the i. The representations or and warranties contained made by Buyer in Section 6(a) of this Contract Agreement shall be true in all material respects as if when made and on and as of the Date Closing as though such representations and warranties were made on and as of Closing.
(2) No part ii. Buyer shall have performed and complied in all material respects with all provisions of this Agreement required to be performed or complied with by Buyer before or at Closing.
iii. B▇▇▇▇ shall have executed and delivered to Seller at the Closing each of the Buyer Documents and such additional documents as may be reasonably requested by Seller in order to consummate the transactions contemplated by this Agreement.
(B) Buyer’s obligations to consummate the transactions contemplated by this Agreement are subject to the following conditions:
i. The representations and warranties made by Seller in this Agreement shall be true in all materials respects when made and on and as of the date of Closing as though such representations and warranties were made on and as of Closing.
ii. Seller shall have performed and complied in all material respects with all provisions of this Agreement required to be performed or complied with by Seller before or at Closing.
iii. Seller shall have executed and delivered to Buyer at the Closing each of the Seller Documents and such additional documents as may be reasonably requested by B▇▇▇▇ in order to consummate the transactions contemplated by this Agreement.
iv. The Title Company shall be ready, willing, and able to issue an ALTA Extended Owner’s Policy with coverage in the amount of the Purchase Price allocated to the Real Property, showing fee title to the Real Property subject only to the Exceptions approved by B▇▇▇▇.
v. No action, suit, or proceeding before any court or any governmental body or authority that would in any way affect the Assets or the ability of the parties to consummate the transactions contemplated by this Agreement shall have been acquired, instituted or threatened on or before the Closing Date.
vi. The Assets shall be about in substantially the same condition on the Closing Date as on the Execution Date, and there shall be no material loss or damage to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”)property prior to the Closing.
vii. If such a Taking has occurred or if Seller The transactions contemplated under the Affiliate PSA have been consummated.
viii. The Contingencies shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; been satisfied or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to waived by Buyer on or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, ix. Seller shall have been timely complied with by Seller all requirements of a transferor under applicable laws relating to bulk transfers and the Property shall be free and clear thereof. In the event that any notices have provided written evidence of violations are issued with respect such compliance to the Property Buyer at least ten (10) days prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) or
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (EVO Transportation & Energy Services, Inc.)
Conditions Precedent to Closing. a. The obligation of Purchaser under this Agreement to close hereunder shall be expressly conditioned upon, purchase the Partnership interests from Sellers and to assume the Trust Mortgage is subject to, to the satisfaction (or written waiver by Purchaser) at the time of Closing of each of the following conditions:conditions ("Conditions Precedent"):
(1a) Each All of the representations or representations, warranties contained and covenants by Sellers set forth in Section 6(a) of this Contract Agreement shall be true and correct as of Closing in all material respects respects, as if though such representations and warranties were made at and as of the Date of Closing.
(2b) No part of the Property Sellers shall have been acquiredperformed, or shall be about observed, and complied with all covenants, agreements, and conditions required by this Agreement to be acquired (as evidenced by written notice thereof)performed, by authority of any governmental agency or other authority in the exercise of observed, and complied with on its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received part prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion as of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3c) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdictioninstruments and documents required on Sellers' part to effectuate this Agreement and the transactions contemplated herein, and any action as set forth in any court against or affecting the Propertythis Agreement, shall have been complied with by Seller delivered and the Property shall be free in form and clear thereof. In the event that any notices of violations are issued with respect to the Property prior to Closing, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject substance reasonably satisfactory to Purchaser’s prior approval, Purchaser's counsel and Title Company.
(4d) The Property Seller shall possess all clearances, permits, occupancy certificates, licenses have obtained the approval and registrations necessary consent of the Trustee for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known or threatened challengetransactions contemplated by this Agreement.
(5e) There shall Approval of this Agreement by Purchaser's Board of Directors.
(f) Approval of Purchaser's lenders upon terms and conditions acceptable to Purchaser.
(g) Purchaser's receipt of opinions from its special tax counsel and accountants concerning the various tax consequences of this transaction, satisfactory to Purchaser.
(h) Purchaser's receipt of any governmental approvals necessary for Purchaser to use the Property for Purchaser's intended purpose.
(i) Seller's completion of the paving of 25-35 parking spaces in the Parking Area currently being used by Val-Pak employees. As of Closing, Val-Pak employees will no longer be no unrepaired damage by fire or other casualty permitted to any portion park in this area.
(j) Purchaser obtaining a title insurance policy acceptable to Purchaser at a cost not to exceed $10,000.
(k) Appraisal of the Property reasonably acceptable to Purchaser.
(l) No adverse material change to the condition of the Property. If any one or more of the foregoing Conditions Precedent is not satisfied by March 31, 2001, Purchaser may terminate this Agreement upon notice to Sellers. If Purchaser gives a notice of termination under this Paragraph 12, this Agreement shall terminate, Escrow Agent shall deliver the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000.00) orDeposit to Purchaser, and neither party shall have any further rights or liabilities under this Agreement.
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Conditions Precedent to Closing. a. The obligation of Purchaser to close hereunder shall be expressly conditioned upon, Owner agrees that Owner will perform and subject to, the satisfaction (or written waiver by Purchaser) of each satisfy all of the following conditionsconditions precedent before Closing and Owner agrees that the Investor’s obligation to disburse the proceeds of the Project Advance is conditioned upon Owner’s performance or satisfaction of all such conditions precedent:
(1a) Each No Event of Default by Owner shall have occurred under this Agreement or any of the representations or warranties contained in Section 6(a) of this Contract shall be true in all material respects as if made as of the Date of Closing.
(2) No part of the Property Loan Documents, and Owner shall have been acquiredtimely complied with and performed all of Owner’s covenants, or shall be about agreements and obligations hereunder which by their terms are required to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser with an opportunity to participate with Seller in any negotiations relating to a Taking affecting any portion of the Property or any condemnation award to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with and performed by Seller Owner, and no Material Adverse Change shall have occurred in the Property financial condition of Owner or the Project.
(b) Owner shall have furnished to Investor the following in sufficient time for review by Investor and its counsel prior to the Closing Date, all of which shall be free in the form and clear thereof. In substance satisfactory to Investor and its counsel:
(i) A letter from the event ESID stating that any notices ESID Board has approved the Petition and Supplemental Plan, determined that the Project constitutes “special energy improvement projects” under Ohio Revised Code Section 1710.01(I) because the Project consists of violations are issued “energy efficiency improvements” as described in Ohio Revised Code Section 1710.01(K), and determined to waive the application of competitive bidding procedures with respect to the Property prior to ClosingProject, all corrective work required thereby shall be performed by or paid by Seller. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Purchaserthe provision of lender consent by any Lender and subject to the City’s prior approvalapprovals.
(4ii) The following with respect to insurance, if applicable:
1) Evidence of insurance coverage with commercially reasonable limits (which evidence shall consist of an "▇▇▇▇▇" certificate) insuring the Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purpose, and the same shall be in full force and effect, in good standing and not subject to any known Project against loss or threatened challenge.
(5) There shall be no unrepaired damage by fire or other casualty casualty, including coverage for extended perils such as vandalism, malicious mischief, floods, and earthquakes, boiler and machinery coverage, and business interruption coverage;
2) Investor shall be named as an additional insured as its interests in the Property may appear;
3) All companies providing insurance coverage shall have a Best's rating of “A VIII” or better and shall be qualified to any portion do business in the State.
(iii) Evidence satisfactory to Investor that the Project Advance is authorized and that the individuals executing this Agreement and the other Loan Documents on behalf of Owner have been duly authorized by all appropriate action to execute and deliver this Agreement and the Loan Documents on behalf of Owner.
(iv) Executed copies of all contracts related to the Project as Investor may require.
(v) Evidence satisfactory to Investor of the Fair Market Value of the Property.
(c) Investor shall have received such reports and audits satisfactory to Investor, containing an analysis of all matters pertaining to the estimated cost Property and Project which Investor deems necessary.
(d) The outstanding principal balance of repair the Project Advance on the Closing Date shall not exceed twenty percent (20%) of which is One Hundred Thousand Dollars the Fair Market Value of the Property.
($100,000.00e) orOwner shall have complied with all other applicable requirements of this Agreement.
(f) Investor shall have received from Owner the fully executed Loan Documents.
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Sources: Energy Project Cooperative Agreement
Conditions Precedent to Closing. a. 10.1 The obligation obligations of Purchaser Buyer pursuant to close hereunder shall this Agreement shall, at the option of Buyer, be expressly conditioned upon, and subject to, to the satisfaction (or written waiver by Purchaser) of each following conditions precedent:
10.1.1 All of the following conditions:
(1) Each representations, warranties and agreements of the representations or warranties contained Seller set forth in Section 6(a) of this Contract Agreement shall be true and correct in all material respects as if made as of the Date of Closing.
(2) No part of the Property Effective Date. Further, no Material Adverse Change shall have been acquired, or shall be about occurred prior to be acquired (as evidenced by written notice thereof), by authority of any governmental agency or other authority in Closing with regard to the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”). If such a Taking has occurred or if Seller shall have received written notice of any such contemplated Taking, Purchaser may, at its sole option (i) terminate this Contract and receive a full refund of the Deposit and any interest earned thereon; or (ii) continue this Contract, pay the full purchase price without reduction, accept an assignment of Seller’s rights in any condemnation award (whether received prior to or after Closing) and proceed to Closing; provided that, (A) representations. Seller shall not consent to any Taking have on or agree to any condemnation award without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed); (B) prior to Closing, Seller shall provide Purchaser failed to meet, comply with an opportunity to participate with Seller or perform in any negotiations relating material respect any conditions or agreements on Seller’s part as required by the terms of this Agreement.
10.1.2 There shall be no material adverse change in the matters reflected in the Title Report, there shall not exist any material adverse encumbrance or title defect affecting the Property except for the Permitted Exceptions or matters to be satisfied at Closing, and Title Company shall be unconditionally committed to issue at Closing a Taking affecting any portion Title Policy insuring fee simple and leasehold title vested in Buyer, with coverage in the full amount of the Property Purchase Price and showing only those exceptions to title which are approved or any condemnation award deemed approved by Buyer as specifically set forth herein, it being acknowledged that due to be made in connection therewith; and (C) Seller shall reasonably cooperate with Purchaser after Closing in prosecuting any claim for a condemnation award arising prior the amount of coverage required hereunder, Buyer may elect by written notice delivered to Closing.
(3) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property, shall have been complied with by Seller and the Property shall be free and clear thereof. In the event that any notices of violations are issued with respect to the Property Title Company prior to Closing, all corrective work required thereby to require co-insurance with up to two (2) additional title companies having comparable financial strength to Title Company provided that any such co-insurance arrangement shall not delay Closing or result in any additional cost to Seller.
10.1.3 Seller shall have obtained and delivered to Buyer estoppel certificates, in accordance with their respective Leases, from tenants representing seventy-five percent (75%) of the square feet which are leased and occupied by tenants as of the Effective Date, which shall include, at a minimum, estoppels from the following “Major Tenants”: Comerica, City of San Diego, TNS Market Development, Embassy CES, Akonix Systems and L▇▇▇▇▇▇▇ F▇▇▇▇ (collectively, the “Estoppel Delivery [FINAL EXECUTION COPY] 24 Condition”). Estoppel certificates shall be performed by deemed to satisfy this condition precedent unless they disclose material adverse matters. Buyer shall notify Seller within three (3) business days of receipt of a copy of the executed estoppel certificate of its approval or paid by Seller. The nature, extent, methods and materials for any corrective work disapproval and the parties performing basis of such work disapproval, if disapproved and Seller shall use commercially reasonable efforts to satisfy the Estoppel Delivery Condition by the date which is three (3) business days prior to Closing.. If Buyer disapproves of an estoppel certificate because of a material, adverse matter disclosed therein, and Seller is unable to obtain a reasonably acceptable estoppel certificate prior to the Closing, then, at Buyer’s election, this Agreement shall terminate, Buyer shall be subject entitled to Purchaser’s prior approval.
(4) The Property shall possess all clearances, permits, occupancy certificates, licenses and registrations necessary for its intended purposea refund of the Deposit, and neither party shall have any further obligation to the same other except Buyer’s indemnification obligations under Paragraph 5. If Buyer has not received the required amount of estoppels to satisfy the Estoppel Delivery Condition by the date which is three (3) business days prior to Closing, then Seller or Buyer shall be in full force and effect, in good standing and not subject permitted to any known or threatened challenge.
extend the Closing Date until five (5) There days after the receipt of all such estoppels, to permit Seller to secure such estoppels to meet the Estoppel Delivery Condition, but in no event shall be no unrepaired damage Seller extend Closing by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars more than thirty ($100,000.0030) ordays.
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