Conditions Precedent to Closing. (a) The obligation of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable. (b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein; (ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing; (iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith; (iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇; (▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion; (vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and (vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.
Appears in 1 contract
Conditions Precedent to Closing. (a) The obligation of Seller to consummate Unless waived by the transactions contemplated herein Parties before or at Closing, the following shall be subject conditions precedent to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt In accordance with the terms of Section 11 below, Buyer’s Property Improvements will include the construction of multiple commercial buildings on the Property. In addition to all other applicable requirements and procedures, including without limitation seeking approval of the planned unit development architectural review board having authority over the Property, Buyer will, before the Closing Date, cooperate in good faith with the City Planner for the City of South Bend (the “City Planner”) in developing its construction design and plans for the Property (the “Construction Plan”). Unless the City Planner, in his sole discretion, approves the following elements of the Construction Plan, Seller will have no obligation to complete the conveyance of the Property to Buyer as contemplated in this Agreement: (i) number and density of buildings; (ii) exterior building materials, including color; (iii) exterior building design, including roofline, building articulation, and placement and type of windows, doors, and other openings; (iv) ground floor interaction with street frontages; (v) vehicular and pedestrian access; and (vi) storm water management improvements. The Parties mutually acknowledge and agree that the foregoing condition does not supersede or diminish Buyer’s obligation to seek and obtain the approval of all other necessary consents and approvals as set forth governmental or other authorities in Paragraph 14(a)(i) herein;connection with its construction of the Property Improvements.
(ii) Buyer will have no obligation to accept Seller’s conveyance of the representations Property as contemplated in this Agreement unless, before the Closing Date, (a) the South Bend Common Council has approved, in its discretion and warranties made by in accordance with applicable laws and procedures, a real property tax abatement upon terms, conditions, and limitations acceptable to both Buyer and the Director of Business Development of the City’s Department of Community Investment; (b) Seller hereunder being true and correct in all material respects and confirmed in writing (or its designee) has obtained the vacation of public alleys on the date of ClosingProperty, as determined necessary by mutual agreement of the date Parties and in accordance with applicable laws and procedures; (c) all obsolete utility lines and easements have been removed and released, at the Commission’s expense, from the vacated alleys on the Property; and (d) the Commission (through its authorized representatives) has obtained a subdivision replat of Closing;
the Property resulting in its reduction to one (iii1) Purchaser lot. Notwithstanding any provision of this Agreement to the contrary, in the event this transaction is not completed due to the failure of one or more of the foregoing conditions, Seller shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser no liability for any of all Buyer’s losses, damages, costs, or expenses of the Properties (other than Cabot Park Village) as operating assisted living facilitiesany kind, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damagedincluding attorney fees, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary incurred in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale its proposed acquisition of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableProperty under this Agreement.
Appears in 1 contract
Sources: Real Estate Purchase Agreement
Conditions Precedent to Closing. (a) The following shall be conditions precedent to Purchaser’s obligation of Seller to consummate the transactions purchase and sale transaction contemplated herein shall be subject to (the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and "Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:’s Conditions Precedent"):
(i) timely receipt Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 5, Section 16(a), Section 16(b), Section 17 or any other applicable section of all necessary consents and approvals as set forth this Agreement within the time periods described in Paragraph 14(a)(i) herein;said sections.
(ii) Title Company shall be irrevocably committed to issue, at the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as the Approved Title Policy, subject to Purchaser's payment of the date of Closing;title premiums for which Purchaser is responsible hereunder.
(iii) Purchaser shall have obtained all licenses 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 permits necessary to complete not disclosing the legal transfer to Purchaser 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 Properties 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 (other than Cabot Park Village3) as operating assisted living facilitiesbusiness 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 tenants at the Property: Ball Corporation, LPS, DataLogix, ▇▇▇▇ Group, HID Global, Urban Lending Solutions, and of Cabot Park Village as an operating independent living facilityTandberg Data. Purchaser agrees to use diligent good faith efforts 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 form attached hereto as Exhibit D. Seller shall, promptly after receiving Purchaser's approval thereof, remit, or cause to be remitted, the estoppel certificates to all the tenants of the Property for signature with any corrections provided by Purchaser. If Purchaser fails to notify Seller of its approval of, or any changes to, the estoppel certificates it receives from Seller for approval within three (3) business days following Purchaser’s receipt of the same, Seller may forward such licenses estoppel certificates to all the tenants of the Property without Purchaser’s prior approval. Estoppel certificates prepared by Seller and permits and to keep Seller advised regarding such efforts and progress approved (or deemed approved) by Purchaser as provided above are referred to, collectively, as "Approved Estoppels". Notwithstanding the foregoing, in connection therewith;
(ivthe event the condition described in this Section 9(a)(iii) The Real Property and the Personal Property shall not have been materially and adversely destroyed satisfied, either Seller or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect elect by notice to the MHFA Facilities other to extend the Closing for a period not to exceed thirty (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met 30) days in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve satisfy such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablecondition.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
Conditions Precedent to Closing. The County is not obligated to authorize Closing, or to take any other action under the Loan Documents unless all of the following conditions have been and continue to be satisfied:
(a) The obligation There exists no Event of Seller to consummate the transactions contemplated herein shall be subject to the occurrenceDefault nor any act, satisfaction failure, omission or waiver of: (i) timely receipt condition that would constitute an Event of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.Default under this Agreement;
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject Borrower holds title to the occurrenceProperty or is acquiring title to the Property simultaneously with the Closing;
(c) Borrower has delivered to the County a copy of a corporate resolution authorizing Borrower to obtain the Combined County Loan and all other Approved Financing, satisfaction or waiver and execute the Loan Documents;
(d) There exists no material adverse change in the financial condition of Borrower from that shown by the financial statements and other data and information furnished by Borrower to the County prior to the date of this Agreement;
(e) Borrower has furnished the County with evidence of the following conditions:insurance coverage meeting the requirements of Section 4.13 below;
(f) Borrower has executed and delivered to the County the Loan Documents and has caused all other documents, instruments, and policies required under the Loan Documents to be delivered to the County;
(g) The Deed of Trust, the Regulatory Agreements, and the Intercreditor Agreement, have been recorded against the Property in the Official Records or will be simultaneously with the Closing;
(h) A title insurer reasonably acceptable to the County is unconditionally and irrevocably committed to issuing an LP-10 2006 ALTA Lender's Policy of title insurance insuring the priority of the Deed of Trust in the amount of the Combined County Loan, subject only to such exceptions and exclusions as may be reasonably acceptable to the County, and containing such endorsements as the County may reasonably require. Borrower shall provide whatever documentation (including an indemnification agreement), deposits or surety is reasonably required by the title company in order for the County's Deed of Trust to be senior in lien priority to any mechanics liens in connection with any start of construction that has occurred prior to the recordation of the Deed of Trust against the Property in the Office of the Recorder of the County of Contra Costa;
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) The County has determined the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have funds or firm commitments for funds that Borrower has obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale rehabilitation of the MHFA Facilities Development, are not less than the amount the County determines is necessary to pay for the rehabilitation of the Development and to satisfy all of the covenants contained in this Agreement and the assumption Regulatory Agreements;
(j) Borrower has obtained all permits and approvals necessary for the rehabilitation of the MHFA Debt by ElderTrustDevelopment;
(k) Borrower has closed the loans and the equity financings that comprise the Approved Financing described in Section 1.1(f)(i) – (ix) and has already received, with Purchaser at all times using diligent good faith efforts or is eligible to achieve such approval and meet such requirements. Ifreceive, during the Study Periodfunds;
(l) The County has received a fully executed copy of the Partnership Agreement, Purchaser shall discover that material modifications in which the Investor Limited Partner is obligated to provide Borrower the Tax Credit Investor Equity subject to the documents in connection with terms and conditions contained therein;
(m) The County has received a fully executed copy of the MHFA Debt will be reasonably necessary in order RAD Delayed Conversion Agreement between Borrower and the Housing Authority governing the commitment of project-based Section 8 rental assistance through the Rental Assistance Demonstration Program for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to units in the end of Church Loan Improvements by the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretionHousing Authority;
(vin) The Properties shall be in substantially the same condition as they were at the end County has received a fully executed copy of the Study Period, reasonable wear Housing Assistance Payment Contract between Borrower and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing Housing Authority governing the commitment of project-based Section 8 rental assistance through the Rental Assistance Demonstration Program for twenty-eight (28) units in the aggregate less than One Hundred Thousand Dollars Idaho Apartments Improvements by the Housing Authority;
($100,000o) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election The County has received a fully executed copy of the Purchaser Agreement to Enter Housing Assistance Payment Contract between Borrower and the Housing Authority governing the commitment of project-based Section 8 rental assistance for five (5) units in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered Church Lane Improvements by Seller and Purchaser, as applicable.the Housing Authority;
Appears in 1 contract
Sources: Development Loan Agreement
Conditions Precedent to Closing. (a) 10.1 The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrence, satisfaction following conditions precedent:
10.1.1 No representation or waiver of: (i) timely receipt warranty shall have changed prior to Closing in such a way that constitutes a Material Adverse Change and no breach by Seller of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the its representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing shall have occurred. Seller shall not have on the date of 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 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 Title Policy insuring fee simple title vested in Buyer, with coverage in the 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 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 date of ClosingEffective Date, (iii) the terminationwhich shall include, concurrent with the Closingat a minimum, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of estoppels from the following conditions:
(i) timely receipt of all necessary consents “Major Tenants”: Hilton Long Beach, US Customs, REMC Enterprises, Apriso, FBI, Medical Data Exchange, ACS Education Services and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in Ford ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") , and each estoppel certificate shall be executed and delivered by the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities certifying tenant (collectively, the "MHFA Debt"“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) 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 executed estoppel certificate of its approval or disapproval and the basis of such 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 entitled to a refund of the Deposit (including the Initial Deposit and the Additional Deposit), and any other requirements under the loan documents in connection with the MHFA Debt neither party shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications any further obligation to the documents in connection with other except Buyer’s indemnification obligations under Section 5. If Buyer has not received the MHFA Debt will be reasonably necessary in order for Purchaser required amount of estoppels to achieve such approval and meet such requirementssatisfy the Estoppel Delivery Condition by the date which is three (3) business days prior to Closing, then not later than Seller or Buyer shall be permitted to extend the Closing Date until five (5) Business Days prior to days after the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of all such proposalestoppels, to permit Seller to secure such estoppels to meet the Estoppel Delivery Condition, but in no event shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to extend Closing which agreement Seller may withhold in its sole and absolute discretion;
by more than thirty (vi30) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicabledays.
Appears in 1 contract
Conditions Precedent to Closing. (a) Last Chance's Conditions Precedent. The following shall be conditions precedent to Last Chance's obligation of Seller to consummate the transactions purchase and sale transaction contemplated herein shall be subject to the occurrence, satisfaction or waiver of: ("Last Chance's Conditions Precedent"):
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the All representations and warranties made by Purchaser hereunder being of PGE in Section 4 shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date Closing Date and all agreements, covenants and obligations of Closing, (iii) PGE under this Agreement to be performed or complied with on or before the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been performed or complied with and PGE shall have executed by Seller and Purchaser, delivered to Last Chance a certificate to that effect in the form attached as applicableSchedule 6(a)(i) hereto ("PGE's Certificate").
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(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 representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date possession or control of ClosingPGE or any Affiliate, as agent or related party of the date of Closing;PGE.
(iii) Purchaser No material breach or default by PGE shall have obtained all licenses and permits necessary occurred hereunder that has not been cured to complete the legal transfer to Purchaser Last Chance's reasonable satisfaction. Last Chance shall provide PGE with written notice of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all any material breach or default by PGE promptly upon Last Chance's discovering that such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;breach or default exists.
(iv) The Real Property and applicable waiting periods, if any, under 15 USC Section 18(a) the Personal Property Hart-Scott-Rodino Antitrust Improvements Act of 1976 ("HSR Act") shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 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 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.
(vii) 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 Integrated Agreements, together with all documents required thereby, shall have been executed by all of the parties thereto other than Last Chance and shall have been delivered to Last Chance on or before the Closing.
(ix) 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 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 brought 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 waived in whole or in part by Last Chance by written notice 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, Common Stock and the Note, subject to the prorations and adjustments provided for in this Agreement.
(ii) All representations and warranties of 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 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 form attached at Schedule 6(b)(ii) hereto ("Last Chance's Certificate").
(iii) No material breach or default by Last Chance shall have 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 Massachusetts Housing Finance Agency Closing shall not directly or indirectly ("MHFA") and the Department with or without notice or lapse of Housing and Urban Development ("HUD"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 hereby.
(v) The applicable waiting periods, if necessaryany, under the HSR Act shall have expired or been terminated.
(vi) Last Chance shall have executed and delivered to PGE at the Closing the documents which it is required to so execute and deliver pursuant to Section 9.
(vii) PGE shall have received the legal opinion of Bible, Hoy & Trachok, a 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 Casino Operation and shall have approved in writing the sale of the MHFA Facilities Casino Operation and shall have licensed Last Chance and those officers, directors and key employees required to Purchaser 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 ElderTrust's assumption 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.
(ix) The California State Lottery Commission shall have determined that Last Chance is a suitable person to acquire all of the Seller's then existing debts ownership interests in and obligations (without material modification except as may be reasonably customary in connection with sales to California Prospectors Ltd., and assumptions of similar MHFA transactions) to MHFA with respect shall have issued all licenses or approvals necessary to the MHFA Facilities (collectively, continued operation of the "MHFA Debt"), and any 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 requirements under Governmental Authorities having jurisdiction over the loan documents in connection with the MHFA Debt California Lottery Station shall have been met in order obtained. No certificate of occupancy or license necessary to allow the sale operation of the MHFA Facilities California Lottery Station shall have been revoked or suspended by the responsible Governmental Authority.
(x) Last Chance shall have executed and delivered to PGE at the assumption Closing the documents which it is required to execute and deliver pursuant to Section 9.
(xi) Each of the MHFA Debt by ElderTrustIntegrated Agreements, together with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing thereby, shall have been executed by Last Chance and shall have been delivered to PGE on or before the Closing.
(xii) 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.
(xiii) No actual or threatened litigation or governmental investigation or proceeding to enjoin, or challenging the asset purchase contemplated herein shall have been 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 remit sales tax to the 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 Seller PGE by written notice to Last Chance and Purchaserat Closing, as applicableall PGE's Conditions Precedent set forth herein shall either be satisfied or so waived. Last Chance shall use all reasonable efforts to ensure that such PGE's Conditions Precedent are satisfied prior to the Closing Date contemplated hereunder.
Appears in 1 contract
Conditions Precedent to Closing. (a) 12.1 The obligation obligations of Seller RM to consummate deliver title to the transactions contemplated herein Real Property and to perform the other covenants and obligations to be performed by RM on the Closing Date shall be subject to the occurrencefollowing conditions (all or any of which may be waived, satisfaction in whole or waiver of: in part, by RM):
(ia) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the The representations and warranties made by Purchaser hereunder being CRLP and Cali herein shall be true and correct in all material respects with the same force and confirmed in writing effect as though such representations and warranties had been made on the date of Closing, and as of the date Closing Date; provided, however, that a failure of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related any representations or warranties to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing shall not give rise to a claim by RM hereunder so long as such matters do not have a material adverse effect on the date of Closing, as transactions contemplated herein. For the purposes of the date of Closing;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.
(iiib) Purchaser CRLP and Cali shall have obtained all licenses executed and permits necessary delivered to complete the legal transfer to Purchaser of RM all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;documents provided herein for said delivery.
(ivc) The Real Property 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 Personal Property 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 materially expanded by the addition of four (4) members (i) two of whom shall have been designated by the current members of the Board and adversely destroyed 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 damagedhave 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 defined in 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 Massachusetts Housing Finance Agency 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 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 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 "MHFAinsurable title".
(d) Teachers and CRLP shall have entered into such documents as shall be acceptable to each of 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 the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved ii) in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser delivered to achieve such approval and meet such requirements, then not later than five (5) Business Days CRLP by Teachers prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent date hereof.
(e) In regard to the Closing hereunder. In such eventStamford Executive Park, no later than two (2) Business Days after its receipt of such proposalRM shall, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) orClosing, at its sole cost and expense, comply with the election of the Purchaser in writingConnecticut Transfer Act, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.Conn. Gen.
Appears in 1 contract
Sources: Contribution and Exchange Agreement (Cali Realty Corp /New/)
Conditions Precedent to Closing. (a) The following shall be conditions precedent to Purchaser's obligation of Seller to consummate the transactions purchase and sale transaction contemplated herein shall be subject to (the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and "Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:'s Conditions Precedent"):
(i) timely receipt Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 8, Section 17(a) or Section 17(b) of all necessary consents and approvals as set forth this Agreement within the time periods described in Paragraph 14(a)(i) herein;said Sections.
(ii) Title Company shall stand ready to issue, at the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as an ALTA owner's policy of title insurance (the "Title Policy"), insuring Purchaser's interest in the Real Property, dated the day of the date Closing, with liability in the amount of Closing;the Purchase Price, subject only to the Permitted Exceptions.
(iii) Purchaser shall have obtained all licenses received and permits reasonably approved, at least ten (10) days prior to the Closing, executed estoppel certificates substantially in the form of Exhibit C hereto from every tenant occupying at least 2,500 rentable square feet, and, collectively 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, provided, however, that if the form of estoppel certificate attached hereto as Exhibit C 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 a sufficient number of tenants to satisfy the percentage set forth above, then, in lieu thereof, Seller shall provide to Purchaser a certificate pertaining to those tenants necessary to complete satisfy the legal transfer percentage set forth above covering the same matters that would have been set forth in the tenant's estoppel certificate (and, in the event that, after the Closing, Seller delivers to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep a tenant estoppel certificate from a tenant for whom Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the executed a Seller's certification at the Closing, then existing debts and obligations (without material modification except as may Seller thereafter shall be reasonably customary released from said certification). Subject to the preceding sentence, Seller's liability in connection with sales and assumptions of similar MHFA transactions) to MHFA any Seller's certificate shall not merge into any instrument or conveyance delivered at the Closing; provided, however, that any action, suit or proceeding with respect to the MHFA Facilities (collectivelytruth, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition accuracy or completeness of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties certificate shall be in substantially commenced and served, if at all, on or before the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising date which is twelve (12) months after the date hereof with respect to title, survey, zoning and environmental matters, costing in of the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (whichand, if not commenced and served on or before such remedy cannot be cured prior to the original Closing Datedate, thereafter shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election void and of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableno force or effect.
Appears in 1 contract
Conditions Precedent to Closing. (a) The Purchaser's obligation of Seller under this Agreement to consummate purchase the transactions contemplated herein shall be Premises is subject to the occurrence, satisfaction or waiver of: (i) timely receipt fulfillment of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver each of the following conditions:
(iA) timely receipt All of all necessary consents the representations and approvals warranties of Seller contained in this Agreement, other than the To Be Updated Representations, shall be true, accurate and correct as set forth if restated on and as of the Closing Date.
(B) Seller shall update the To Be Updated Representations as of the Closing Date to reflect the then present state of facts underlying the To Be Updated Representations (as updated, the "Updated Representations"). A difference between the To Be Updated Representations and the Updated Representations shall not in Paragraph 14(a)(iand of itself constitute a breach of a representation by Seller. Notwithstanding the immediately preceding sentence, it shall be a condition of Purchaser's obligation under this Agreement to purchase the Premises that the Updated Representations do not differ from the To Be Updated Representations, except that the facts underlying the representations contained in Paragraphs D and F of Section 7(a)(i) hereinmay be updated as of the Closing Date, respectively, to reflect (I) any New Leases or Lease amendments or modifications permitted pursuant to Section 9, and (II) any defaults by any tenants under the Leases (subject to the provisions of Section 7(a)(ii));
(ii) Seller shall be ready, willing and able to deliver title to the representations Premises in accordance with the terms and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date conditions of Closing, as of the date of Closing;this Agreement; and
(iii) Purchaser Seller shall have obtained delivered all licenses the documents and permits necessary other items required pursuant to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesSection 3, and of Cabot Park Village as an operating independent living facility. Purchaser agrees shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to use diligent good faith efforts be performed or complied with by the Seller at or prior to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;the Closing.
(iv) The Real Property and Title Company is willing to insure, without conditions, fee simple title subject only to the Personal Property shall not have been materially and adversely destroyed Permitted Exceptions at filed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;promulgated rates without additional premiums or endorsements.
(▇v) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"In accordance with Section 3(f), if necessaryeither (A) the Mezzanine Lender or Seller shall be ready, willing and able to provide Mezzanine Financing to Purchaser, or (B) Seller shall have approved in writing disapproved the sale terms of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableCommitment.
Appears in 1 contract
Conditions Precedent to Closing. The obligation of Buyer to purchase the Property from Seller is subject to the satisfaction on or before the Closing of the following conditions, 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 any such writing.
(a) The obligation All of Seller to consummate the transactions contemplated herein Seller's obligations hereunder shall be subject have been performed with regard to the occurrenceProperty;
(b) Seller must have good and marketable fee simple title to the Property, satisfaction 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 waiver ofother improvement on the Property shall encroach upon any land adjoining the Property. As set forth above, prior to Closing, Buyer must have approved 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, then the Seller shall have 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 objection to title within sixty (60) days, then the Buyer may elect: (i) timely receipt to proceed with the Closing pursuant to the terms of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; this Agreement, or (ii) to terminate its obligation to purchase the representations and warranties made Property. In the event Buyer fails to notify Seller of its objections to the title to the Property prior to Closing, all objections to the title to the Property shall be waived by Purchaser hereunder being true and correct in all material respects and confirmed in writing Buyer. Seller shall not cause any encumbrance to be placed on the Property between the date of Closing, as this Agreement and the Closing Date ("New Encumbrances") except with the approval of the date Buyer which approval shall not be unreasonably withheld or delayed (provided Buyer shall have no obligation to approve any new lease of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA DebtBuildings), and (iv) all other documents hereunder for Closing Seller shall have been executed the obligation to remove all such New Encumbrances (not approved as aforesaid by Seller and Purchaser, as applicableBuyer) on the Closing Date.
(bc) The obligation Buyer must have procured by Closing (including a Phase II report, if Buyer deems necessary), an engineering report assessing the environmental condition of Purchaser the Property and the Buildings located on the Property, and such report must be acceptable to consummate Buyer, in its sole discretion.
(d) Buyer must have procured by Closing, engineering reports satisfactory to Buyer in its sole discretion, assessing the transactions contemplated herein shall 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 occurrenceprovisions hereinafter contained), satisfaction or waiver then in such event Seller shall either repair any of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closingabove-referenced items to good working order, or remedy any legal violation, as of the date of Closing;
case may be, or in the alternative, Seller shall notify Buyer that it will not repair or remediate (iii) Purchaser shall have obtained all licenses and permits necessary to complete as the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiescase may be), and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property which event, Buyer may terminate its obligations hereunder and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;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 Massachusetts Housing Finance Agency Property ("MHFA"including any improvements thereon) and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Perioddate hereof and which is in a condition which has not materially diminished after the date of execution hereof subject, reasonable however, to normal wear and tear and casualty and taking as permitted herein exceptedonly, provided, in 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 also excepting conditions first arising after the date hereof with respect Buyer would not have a right to title, survey, zoning and environmental matters, costing terminate this Agreement in the aggregate less than One Hundred Thousand Dollars event of such restoration. Buyer shall be permitted to enter the Property at any time, and from time to time, upon reasonable notice ($100,000and accompanied by Seller or Seller's representative) in order to remedysatisfy itself that such condition has not materially diminished.
(g) 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 satisfied within the time period set forth for each condition with regard to the Property, Buyer may, at its election: (i) terminate its obligations to purchase the 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 the Property without any reduction in the Purchase Price. Also, notwithstanding any provisions in this Section 17, if Buyer for any of the 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, at Purchaser's electionneither Buyer nor Seller shall have any claims or causes of action against the other arising from such event, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, and this Agreement shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableno further force or effect.
Appears in 1 contract
Conditions Precedent to Closing. (a) The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
9.1. All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debthereof, 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 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. Unless Seller receives notice from Buyer at least thirty (iv30) all other documents hereunder for Closing days prior to closing, effective as of closing, the management agreement affecting the Property shall have been executed be terminated by Seller and Purchaser, any and all termination fees incurred as applicablea result thereof shall be the sole obligation of Seller.
(b) The obligation 9.4. 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 Seller whereupon this Agreement may be canceled, upon return of Purchaser to consummate the transactions contemplated herein Due Diligence Items the Deposit shall be subject 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 occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as conditions precedent set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by this paragraph, Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closingmay, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than within five (5) Business Days prior days of receipt of Buyer’s Notices agree to satisfy the end 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 Study PeriodProperty is part of a tax-deferred exchange pursuant to Section 1031 of the Code, Purchaser may propose the addition of such modifications as additional conditions it is a condition precedent to the Closing hereunderclosing 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. In Seller agrees to execute such eventdocuments or instruments as may be necessary or appropriate to evidence such exchange, no later than two (2) Business Days after its receipt of provided that Seller’s cooperation in such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties regard shall be in substantially the same condition as they were at the end of the Study Periodno additional cost, reasonable wear and tear and casualty and taking as permitted herein exceptedexpense, or liability whatsoever to Seller, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing that no additional delays in the aggregate less than One Hundred Thousand Dollars ($100,000) scheduled Close of Escrow are incurred unless mutually agreed upon by all parties to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablethis Agreement.
Appears in 1 contract
Conditions Precedent to Closing. (a) The Buyer’s obligation to purchase the Premises is contingent upon each of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction following conditions precedent being satisfied or waiver of: waived in writing by Buyer:
(i) timely receipt Title to the Premises shall be free and clear of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; 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 Purchase Price from a title insurance company (the “Title Company”) of 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 made by Purchaser hereunder being are true and correct in all material respects as if made on and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and Closing Date;
(iv) Seller has performed all other documents hereunder for Closing of its 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 executed 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 Purchaserliabilities 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, as applicableexcept that nothing herein contained shall relieve Seller from liability hereunder for breaches of any conditions which also constitute covenants.
(b) The obligation of Purchaser Seller to consummate sell the Premises and close the transactions contemplated herein by this Agreement shall be subject to the occurrence, timely satisfaction or waiver of the following conditionsconditions precedent:
(i) timely receipt Each representation and warranty of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being Buyer contained herein shall be true and correct in all material respects as if made on and confirmed in writing on the date of Closing, as of the date Closing Date.
(ii) Buyer shall have timely delivered to Escrow Agent the balance of Closing;the Purchase Price, subject to adjustments and prorations pursuant to Section 5 above and all other closing deliveries required under Section 10(b).
(iii) Purchaser Buyer shall have obtained all licenses and permits necessary not then be in default of any covenant or agreement to complete the legal transfer to Purchaser of all be performed by Buyer under this Agreement. Seller may waive any of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 hereinthis Section 6(b) orand proceed to the Closing. If the conditions set forth in this Section 6(b) are not satisfied by Buyer, at or waived by Seller, then this Agreement shall terminate, the election of the Purchaser in writingDeposit, together with all interest accrued thereon shall be paid to Seller, and the parties shall close and appropriate financial adjustments shall be made; and
(vii) All have no further obligations to each other documents required hereunder except for Closing shall have been executed and delivered by Seller and Purchaser, as applicablesuch provisions that specifically survive the termination of this Agreement.
Appears in 1 contract
Conditions Precedent to Closing. (a) 8.01. The obligation obligations of Seller Highwoods to consummate purchase the transactions contemplated herein Property from Owner and meet its other obligations hereunder shall be subject to the occurrencefollowing conditions precedent, satisfaction or waiver of: any of which may be waived by Highwoods in writing at the Closing:
(ia) timely receipt All of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties of Owner made by Purchaser hereunder being 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 confirmed in writing on 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 Closing, only standard title insurance premiums.
(d) The Property must be in the same condition as of the date of Closingthis Agreement, (iii) ordinary wear and tear excepted, and subject to the termination, concurrent with the Closing, of all guaranties specific provisions set forth herein related to the MHFA Debt, condemnation and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicablecasualty.
(be) The obligation 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 Purchaser the net rentable space in the Building. Owner agrees to consummate send estoppel certificates to all tenants of the transactions contemplated herein 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 subject to the occurrence, satisfaction deemed waived and of no further force or waiver effect.
(f) All management fees due any property manager of the following conditions: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) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, Highwoods Investment Committee shall have approved in writing the sale of the MHFA Facilities this transaction, with said approval to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days given prior to the end of the Study Inspection Period, Purchaser may propose . In the addition event any of such modifications as additional 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 Closing hereunder. In such event, no later than two (2) Business Days after its receipt satisfaction of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end each of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting following conditions first arising after on or before the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall any of which may be extended for up waived by Owner, and Highwoods agrees to ninety cause the conditions described in clauses (90a) days in connection therewith as set forth in Paragraph 9 hereinand (b) orbelow to be so satisfied: (a) all the terms, at covenants, and conditions of this Agreement to be complied with and performed by Highwoods on or before the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing Date shall have been executed duly complied with and delivered performed in all respect; (b) the representations and warranties of Highwoods contained in this Agreement shall be true and correct in all respects at and as of the Closing Date with the same force and effect as though such representations and warranties had been made as of the Closing Date, except for any changes which have been disclosed to Owner in writing and expressly approved or waived by Seller and Purchaser, as applicable.Owner in writing; and
Appears in 1 contract
Sources: Contract of Sale and Purchase (Yager Kuester Public Fund 1986 Limited Partnership)
Conditions Precedent to Closing. (a) The obligation All obligations of Seller to consummate Fieldcrest, SoftLock and the transactions contemplated herein shall be Principal Stockholder under this Agreement are subject to the occurrencefulfillment, satisfaction prior to or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with at the Closing, of all guaranties related conditions elsewhere herein set forth, including, but not limited to, receipt by the appropriate party of all deliveries required by Section 4 herein, and fulfillment, prior to the MHFA DebtClosing, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver each of the following conditions:
(ia) timely receipt SoftLock's, the Principal Stockholder's and Fieldcrest's representations, warranties and covenants contained in this Agreement shall be true at the time of all necessary consents Closing as though such representations, warranties and approvals as set forth in Paragraph 14(a)(i) herein;covenants were made at such time.
(iib) SoftLock, the representations Principal Stockholder and warranties made Fieldcrest shall have performed and complied with all agreements and conditions required by Seller hereunder being true this Agreement to be performed or complied with by each prior to or at the Closing.
(c) Each SoftLock Stockholder acquiring Exchange Stock will be required, at Closing, to submit an agreement confirming that all the Exchange Stock received will be acquired for investment and correct not with a view to, or for sale in all material respects connection with, any distribution thereof, and confirmed in writing on agreeing not to transfer any of the Exchange Stock for a period of one year from the date of the Closing, except to those persons approved by legal counsel to Fieldcrest as falling within an exemption from registration under the Securities Act of 1933 and any applicable state securities laws, which transfers do not constitute a public distribution of securities, and in which the transferees execute an investment letter in form and substance satisfactory to counsel for Fieldcrest. Each SoftLock Stockholder acquiring Exchange Stock will be required to transfer to Fieldcrest at the Closing his/her respective SoftLock Shares, free and clear of all liens, mortgages, pledges, encumbrances or changes, whether disclosed or undisclosed.
(d) Each of the SoftLock Stockholders who shall tender SoftLock Stock at Closing shall have provided Fieldcrest with a "Letter of Acceptance and Investor Qualification," substantially in the form of Exhibit H hereof ("Acceptance Letter") and dated as of the date of the Closing;. Upon inspection of the Acceptance Letters, Fieldcrest must be satisfied that each such Stockholder, together with his investment advisors, if any, (i) has been provided by Fieldcrest with such information and such access to the respective books and records and management of Fieldcrest and SoftLock as to warrant a conclusion that the issuance of Exchange Stock to the Stockholder will enjoy an exemption under Regulation D from the registration requirements of the Act and (ii) has availed himself of such information and access to the degree he thought necessary or desirable for purposes of making an investment in the Exchange Stock.
(iiie) Purchaser Fieldcrest shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesbeen presented with, and shall have approved, an updated version of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇,▇,▇ and D, prepared by SoftLock, current as of the Closing.
(f) Each party shall have received favorable opinions from the other party's counsel on such matters in connection with the transactions contemplated by this Agreement as are reasonable.
(g) Each party shall have satisfied itself that since the date of this Agreement the business of the other party has been conducted in the ordinary course. In addition, each party shall have satisfied itself that no withdrawals of cash or other assets have been made, other than in the ordinary course, and no indebtedness has been incurred since the date of this Agreement, except with respect to services rendered or expenses incurred in connection with the Closing of this Agreement, unless said withdrawals or indebtedness were either authorized by the terms of this Agreement or subsequently consented to in writing by the parties.
(h) Except as disclosed in the Exhibits hereto, each party covenants that, to the best of its knowledge, it has complied in all material respects with all applicable laws, orders and regulations of federal, state, municipal and/or other governments and/or any instrumentality thereof, domestic or foreign, applicable to their assets, to the business conducted by them and to the transactions contemplated by this Agreement.
(i) Fieldcrest shall have provided to SoftLock audited financial statements of Fieldcrest for the three most recently completed fiscal years prepared in accordance with generally accepted accounting principles and with Regulation S-X.
(j) SoftLock shall have provided to Fieldcrest audited financial statements of SoftLock for the two most recently completed fiscal years, prepared in accordance with generally accepted accounting principles and Regulation S-X, together with unaudited financial statements in the same form for the quarter ended March 31, 1998. Such unaudited financial statements of SoftLock shall include the following schedules: Schedule of Assets; Schedule of Notes Payable; Schedule of Accounts Payable; and Schedule of Notes Receivable or, in their absence, an affirmation that such items do not exist. SoftLock shall also provide, as of a date within ten days of Closing, an update of any material change in the aforementioned schedules.
(k) Each party shall have granted to the other party (acting through its management personnel, counsel, accountants or other representatives designated by it) full opportunity to examine its books and records, properties, plants and equipment, proprietary rights and other instruments, rights and papers of all kinds in accordance with Sections 6 and 8 hereof; and each party shall be satisfied to proceed with the transactions contemplated by this Agreement upon completion of such examination and investigation.
(l) Effective as of the Closing Date, Fieldcrest's sole executive officer and sole director shall resign her respective positions and/or offices by tendering a written resignation. Immediately prior to said resignations, Fieldcrest's sole director shall appoint as members of Fieldcrest's new board, those persons designated by SoftLock to fill said director positions, with such appointments to be effective as of the Closing. Fieldcrest's sole officer and director may designate, at any time within twelve months following the Closing, one person to serve in the capacity as an advisor to the Board of Directors. The Fieldcrest advisor so designated shall be entitled to notice of, and to attend, all Board meetings for a minimum period of one year following the Closing and shall have the right to be reimbursed for all travel expenses to attend meetings and shall receive the same compensation as any "outside" director or advisor, if any, of Fieldcrest is entitled to receive.
(m) All press releases, stockholder communications, SEC Filings and other publicity generated by Fieldcrest or SoftLock regarding the transactions contemplated by this Agreement shall have been reviewed and approved by the other party before their release to the public or any governmental agency.
(n) If Stockholders, who in the aggregate own five percent (5%) or more of the SoftLock Shares, dissent from the proposed share exchange, or are unable or for any reason refuse to transfer any or all of their SoftLock Shares to Fieldcrest in accordance with Section 1 of this Agreement, Fieldcrest, at its option, may terminate this Agreement.
(o) Each party shall have satisfied itself that all transactions contemplated by this Agreement, including those contemplated by the exhibits attached hereto, shall be legal and binding under applicable statutory and case law of the State of Delaware, including, but not limited to, Delaware's securities laws and all other applicable state securities laws.
(p) The Exchange shall be approved by the stockholders of SoftLock, or by the stockholders of Fieldcrest, if deemed necessary or appropriate by counsel for the same, within thirty (30) days following execution of this Agreement. If such a meeting is deemed necessary, the management of SoftLock, or of Fieldcrest as the case may be, agrees to recommend approval to their Stockholders and to solicit proxies in support of the same.
(q) Either Fieldcrest or SoftLock shall have entered into an employment contract with ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇;, such contract to be satisfactory to the parties and have a term lasting at least two years from the date of this Agreement, and, if the contract be with SoftLock, that Fieldcrest shall have ratified, adopted, and confirmed the contract.
(▇r) The Massachusetts Housing Finance Agency All holders of Fieldcrest restricted common stock in excess of one million shares shall execute agreements in form and substance satisfactory to SoftLock and Fieldcrest whereby they agree that 75% of their restricted shares shall not be sold for a period of twelve months following Closing, except that private sales may be made to purchasers who agree to be bound by the provisions of the lock-up agreement.
("MHFA"s) SoftLock agrees, immediately following the closing of this Agreement, to use its best efforts to amend Fieldcrest's Certificate of Incorporation to: (i) change Fieldcrest's name to SoftLock Services, Inc., or to a name that is substantially similar; and (ii) adjust the Department authorized number of Housing and Urban Development shares of common stock in such a manner as to establish a sufficient reserve of shares issuable upon exercise of the Fieldcrest Options to be granted as a replacement for the SoftLock Options. ("HUD"), if necessary, t) SoftLock shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents raised at least $500,000 in connection with the MHFA Debt shall have been met in order to allow the sale private placement of the MHFA Facilities and the assumption 142,857 shares of the MHFA Debt by ElderTrust, with Purchaser SoftLock common stock at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end a purchase price of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable3.50 per share.
Appears in 1 contract
Conditions Precedent to Closing. (a) The obligation of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, Buyer's obligations under this Agreement are expressly conditioned upon completion or satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditionsmatters on or prior to the Closing Date:
(i) timely receipt of all necessary consents The Title Company shall, at Closing, be ready, willing and approvals as set forth in Paragraph 14(a)(i) hereinable to issue to Buyer the Policy for the Property, insuring fee simple title to the Land, subject only to the Permitted Exceptions;
(ii) Seller shall have deposited with the representations and warranties made by Escrow Agent all documents required of Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closingto be delivered into Escrow hereunder;
(iii) Purchaser The representations and warranties of Seller contained in subsection 8(a) of this Agreement shall have obtained all licenses be true and permits necessary to complete the legal transfer to Purchaser of all correct as of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewithClosing Date;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, Buyer shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities received estoppel certificates completed by (collectively, the "MHFA DebtRequired Estoppels")) (a) all tenants leasing greater than five thousand (5,000) square feet of the leased square footage of space on the Property, in accordance with Section 6 above; and (b) at least seventy percent (70%) (on a square footage basis) of all other tenants (other than those tenants referenced in subsection (a) herein) on the Property in accordance with Section 6 above; provided, however, that if any other tenant does not deliver an estoppel certificate as of the Closing Date, then, except for the Required Estoppels, Seller shall execute and deliver to Buyer on or before the Closing Date its own estoppel certificates in the form of Exhibit F(2) hereto for any such tenants which did not deliver an Estoppel Certificate. Each Estoppel Certificate executed by Seller shall be null and void and of no further force and effect one (1) year after its effective date. Seller's liability under any Estoppel Certificate executed by it shall be limited as provided in Section 15(b) below and shall terminate upon receipt by Buyer of an Estoppel Certificate from the applicable tenant which satisfies the requirements under set forth herein. Estoppel Certificates shall be acceptable and delivered in satisfaction of this Section 9(a)(iv) if it is substantially in the loan documents 11 applicable form required hereunder and the information set forth in connection each such estoppel certificate is consistent in all material respects with the MHFA Debt applicable Tenant Lease and the information provided to Buyer by Seller, provided, however, that if the form of an Estoppel Certificate is attached to any lease such form shall have been met in order be deemed, as to allow form, the sale "applicable form" as to such lease. Notwithstanding the foregoing, Buyer shall not receive estoppel certificates completed by the Association or FAB.
(v) Seller hereby agrees to indemnify, defend and hold Buyer harmless from any and all costs, expenses, claims, liabilities and demands made against Buyer by any of the MHFA Facilities and parties to any reciprocal easement agreement and/or license agreement affecting the assumption of the MHFA Debt by ElderTrustProperty, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover arising from events that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days occur prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;Closing.
(vi) The Properties There shall be no litigation, including any arbitration, investigation or other proceeding, pending by or before any court, arbitrator or governmental authority, nor any decree, order or injunction issued by any such court, arbitrator or governmental authority and remaining in substantially effect, which does or seeks to prevent or hinder the same condition as they were at the end timely consummation of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be madeClosing; and
(vii) All Seller agrees to enter into an escrow agreement with Buyer and Escrow Agent for four thousand two hundred fifty (4,250) square feet of vacant unleased space on the Property (the "Vacant Space") known as the "KDA space" for a period of twelve (12) months commencing on the Closing Date in the amount of One Hundred Nineteen Thousand and No/100 Dollars ($119,000) annual base rent ($28.00 per square foot net) ("Rent") plus all amounts attributable to building taxes, utilities, insurance and other documents required hereunder operating expenses (the "Vacancy Operating Expenses"), pursuant to a document in form attached hereto as EXHIBIT H (the "Vacancy Escrow Agreement"). The aggregate amount of One Hundred Thirty-Seven Thousand Seven Hundred Ninety-Two and No/100 Dollars ($137,792.00), constituting Rent plus a reasonable estimate of the Vacancy Operating Expenses for the term of the Vacancy Escrow Agreement, shall be deposited with Escrow Agent at Closing (the "Vacancy Escrow"). As Rent and Vacancy Operating Expenses become due and payable each month, Escrow Agent shall have immediately release such monthly amounts to Buyer in accordance with the terms of the Vacancy Escrow Agreement. At the end of the term of the Vacancy Escrow Agreement, any remainder of Rent and/or Vacancy Operating Expenses in the Vacancy Escrow which may occur as a result of Seller's leasing the Vacant Space to another tenant approved by Buyer, shall be returned to Seller as provided herein. Prior to and after Closing, Seller may present to Buyer proposed tenants for the Vacant Space. Buyer will not unreasonably refuse to lease the Vacant Space to any such proposed tenant provided that such proposed tenant: (1) agrees to execute a lease covering the Vacant Space, the form of which has been approved in all respects by Buyer, (2) agrees to lease the Vacant Space in accordance with terms which are consistent with the terms of, and do not violate any restrictions or exclusives contained in, other leases on the Property, (3) agrees that the rent under any lease of the Vacant Space will in no event be less than the rent paid under the Vacancy Escrow Agreement, (4) is engaged in a business which is of a nature which is consistent with the current uses of the Property, (5) is creditworthy in Buyer's reasonable judgment, and (6) agrees to enter into lease terms equal or more favorable to the landlord than the terms set forth in the "Leasing Guidelines" attached to the Vacancy Escrow Agreement as Exhibit B. In the event the Vacant Space is leased to such proposed tenant, (1) the Vacancy Escrow Agreement shall automatically terminate as of that date upon which said proposed tenant commences rental payment for the Vacant Space, and (2) Seller shall pay Buyer the lesser of (i) the remaining Rent due under the Vacancy Escrow Agreement or (ii) Seller's proportionate share of the costs attributable to the installation of such proposed tenant, including legal costs, leasing commissions, tenant improvements and tenant allowances, which shall be calculated by multiplying such costs by a fraction, the numerator of which shall be the number of months remaining in the term of the Vacancy Escrow Agreement, and the denominator of which shall be the total number of months in the replacement tenant's lease term.
(viii) On or before the end of the Due Diligence Period, Seller having obtained and delivered to Buyer: (a) an unconditional and final waiver by Hallmark of the early termination option granted to Hallmark pursuant to Paragraph 2(d) of that certain Standard Shopping Center Lease dated September 11, 2000, as amended; and (b) an unconditional and final waiver by The Avenue of the early termination option granted to The Avenue pursuant to Paragraph 2 of that certain Second Amendment to Shopping Center dated August 29, 1996.
(ix) On or before the end of the Due Diligence Period, Seller having obtained and delivered to Buyer an amendment to that certain Lease Agreement with Signature Group, Inc. ("Signature Cleaners Lease"), obligating such tenant to convert its dry cleaning operations to a "wet" or "green" system, in form and content reasonably acceptable to Buyer, and Seller having escrowed in a manner reasonably acceptable to Buyer sufficient funds to accomplish such conversion which will be the obligation of tenant under the Signature Cleaners Lease.
(x) On the Closing Date, all of the tenant leases listed in the List of Tenant leases attached as EXHIBIT C shall be in full force and effect, and all of the tenants listed shall be open and operating in their respective premises.
(xi) Seller having obtained and delivered to Buyer, at Seller's sole cost and expense, a replacement seven (7) year warranty reasonably acceptable to Buyer, on all outlot buildings and that certain portion of the roof over the Old Navy premises, or, if such replacement roof warranty is not available, Seller shall give Buyer a credit against the Purchase Price at Closing in the amount of $100,000.00.
(xii) On or before the end of the Due Diligence Period, Seller having executed and delivered to Buyer the Audit Representation Letter referred to in Paragraph 34 hereof, in the form attached hereto and made a part hereof as EXHIBIT P.
(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 hereunder; and
(ii) The representations and warranties of Buyer contained in subsection 8(b) of this Agreement shall be true and correct as of the Closing Date.
(c) 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 conditions precedent set forth in subsection (a) (other than subsection 9(a)(iv) above) or subsection (b) above are not satisfied on or before the date which is ten (10) days after written notice by the party for whose benefit the condition precedent exists, such party shall have the right to terminate this Agreement by written notice of termination given to the other party, however, such right to terminate shall not exist if the party who received written notice is affirmatively trying to cure. If the condition precedent set forth in subsection 9(a)(iv) above is not satisfied on or before the date which is ten (10) days prior to Closing, then Buyer shall have five (5) days upon receipt of written notice from Seller to Buyer to provide written notice to Seller of its election to either (i) terminate this Agreement or (ii) waive the condition precedent set forth in subsection 9(a)(iv) above and Purchaserproceed to Closing as otherwise provided herein. If a notice of termination is given, Escrow Agent shall return all documents and funds, except the Nonrefundable Deposit in accordance with Section 2(b) herein, previously deposited into escrow, to the party so depositing same, except if the events described in subsections 9(b)(i) and 9(b)(ii) are not satisfied in accordance with all notice and cure periods as applicableprovided in this subsection 9(c), the Deposit shall be transferred to Seller, and neither party shall have 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 failure to satisfy conditions precedent is given as above provided, all conditions precedent shall be deemed satisfied. Notwithstanding the foregoing, if the other party is in default under this Agreement, nothing herein shall prevent the non-defaulting party from pursuing its remedies as provided in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Conditions Precedent to Closing. (a) 10.1. The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrence, satisfaction or waiver of: (i) timely receipt following conditions precedent:
10.1.1. All of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being of Seller set forth in this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date Effective Date and as of the Closing Date, with such changes as are shown on the Inspection Period Certificate. Seller shall not have on or prior to Closing, (iii) failed to meet, comply with or perform in any material respect any conditions or agreements on Seller’s part as required by the termination, concurrent with terms of this Agreement. Notwithstanding the Closing, of all guaranties related foregoing or anything herein to the MHFA Debtcontrary, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
if (i) timely receipt of all necessary consents and approvals Seller has failed to meet, comply with or perform in any material respect any conditions or agreements as set forth in Paragraph 14(a)(i) herein;
aforesaid, or (ii) there has been a Material Adverse Change between the Inspection Period and the Closing Date in any of the following: (a) the representations and warranties made by of Seller, (b) the rent roll for the Property, or (c) the accounts receivable schedule, then Seller hereunder being true shall have, under either (i) or (ii), the right in Seller’s sole and correct absolute discretion (but not the obligation) to cure same within twenty (20) days thereafter, and the Closing Date shall be extended as reasonably necessary in all material respects and confirmed connection therewith. However, notwithstanding anything herein to the contrary, if applicable, in writing on no event shall the date of Closing, as Closing be extended for any period of time which would cause the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary Lender to complete the legal transfer withdraw its consent to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities Property or fail to Purchaser and ElderTrust's assumption of all of close the Seller's then existing debts and obligations (without material modification except as may be reasonably customary Assumption. As used herein, a “Material Adverse Change” is a change in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectivelyfacts or circumstances underlying a Seller representation or warranty, the "MHFA Debt"rent roll, or the accounts receivable schedule, which arises from changes at the Property (as distinguished from changes in economic conditions in general or from casualty damage, the effect of which is otherwise addressed in this Agreement), and any other requirements under which causes the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale fair market value of the MHFA Facilities Property, as mutually agreed by the parties (and if the assumption of the MHFA Debt parties cannot agree, as determined by ElderTrusta mutually acceptable third party appraiser), with Purchaser to decrease by at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One least Five Hundred Thousand and No/100 Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable500,000.00).
Appears in 1 contract
Sources: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Conditions Precedent to Closing. (a) 10.1. The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
10.1.1. All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) Effective Date and the termination, concurrent with the Closing, of all guaranties related to the MHFA DebtClosing Date, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially 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 adversely destroyed or damagedadverse, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;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 (▇“Title Policy”) The Massachusetts Housing Finance Agency ("MHFA") insuring Buyer’s leasehold title to the Leasehold and fee simple title to the Department 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 Housing and Urban Development ("HUD"), if necessary, Buyer’s failure to obtain or update the Survey shall have approved in writing the sale not constitute a failure of the MHFA Facilities condition described in this Section 10.1.3 as long as the Title Company irrevocably commits to Purchaser and ElderTrust's assumption issue a CLTA standard coverage Owner’s Policy of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirementsTitle Insurance.
10.1.4. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not No later than five (5) Business Days prior to the end Closing Date, Seller shall have obtained estoppel certificates (each a “Tenant Estoppel”) executed by Tenants consisting of not less than seventy percent (70%) of the Study Periodleased rentable square footage of the Real Property and including all Tenants leasing three thousand (3,000) square feet or more (any such Tenant, Purchaser may propose a “Major Tenant”). Seller shall use commercially reasonable efforts to obtain the addition of Tenant Estoppels. Each Tenant Estoppel shall be in a form substantially similar to Exhibit D attached hereto or such modifications as additional conditions precedent to form required by the Closing hereunder. In such eventapplicable Tenant Lease, and in addition, no later than two three (23) Business Days after its receipt of such proposalprior to the date on which Seller intends to distribute the Tenant Estoppels to the Tenants for their completion and execution, Seller shall notify Purchaser whether deliver the draft estoppel certificates to Buyer for Buyer’s review and approval, which approval shall not be unreasonably withheld. Such Tenant Estoppels shall be consistent with the respective Tenant Lease, shall not reveal any material default by Seller will agree and/or Tenant, any right to offset rent by the Tenant, or any claim of the same, and shall be dated no earlier than thirty (30) days prior to Closing.
10.1.5. No later than five (5) Business Days prior to Closing, Seller shall have obtained an estoppel certificate as to each recorded declaration, reciprocal easement agreement or similar recorded title document which grants access to a public road and/or parking rights to the Seller, to the extent such estoppel certificates are required to be 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 all 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 full 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 (v) 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 (5) 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 such additional 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 party 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, Seller shall have 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 precedent to Closing which agreement Seller set forth in this Section 10.1 are solely for the benefit of Buyer and may withhold be waived only by Buyer in its writing, in Buyer’s sole and absolute discretion;
(vi) The Properties shall . At all times Buyer has the right to waive any condition by giving written notice of such waiver to Seller. Such waiver or waivers must be in substantially writing to Seller. In the same condition as they were at event of a failure to satisfy the end of the Study Periodconditions precedent set forth in this Section 10.1, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect Buyer may terminate this Agreement upon written notice to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedySeller, in which eventevent the entire Deposit shall be promptly returned to Buyer and the parties shall have no further obligations, at Purchaser's electionexcept those which expressly survive termination of this Agreement; provided, Seller either shall remedy the same prior to Closing (whichhowever, if such remedy cannot be cured prior to the original Closing Datefailure constitutes a breach or default of its covenants, representations or warranties Seller shall be extended remain liable for up to ninety (90) days in connection therewith such breach or default as otherwise set forth in Paragraph 9 herein) orthis Agreement.
10.2. The obligations of Seller under this Agreement shall, at the election option of Seller, be subject to the following conditions precedent:
10.2.1. All of the Purchaser representations, warranties and agreements of Buyer set forth in writing, the parties shall close and appropriate financial adjustments this Agreement shall be made; and
(vii) All other documents 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 hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablethe terms of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (G REIT Liquidating Trust)
Conditions Precedent to Closing. (a) 7.1 The following shall be conditions precedent to Buyer’s obligation of Seller to consummate the transactions purchase and sale transaction contemplated herein (the “Buyer’s Conditions Precedent”):
7.1.1 Buyer shall be not have terminated this Agreement in accordance with Section 3.4, Section 3.7 or Section 9.4 of this Agreement within the time periods described in said Sections.
7.1.2 Title Company shall stand ready to issue, at the Closing, the Title Policy, insuring Buyer’s interest in the Real Property, dated the day of the Closing, with liability in the amount of the Purchase Price, subject only to the occurrencestandard exclusions from coverage and the Permitted Exceptions.
7.1.3 Buyer shall have received and reasonably approved, satisfaction at least ten (10) days prior to the Closing, executed estoppel certificates substantially in the form of Exhibit F hereto from each of the tenants listed on Exhibit B, provided, however, that if the form of estoppel certificate attached hereto as Exhibit F requests information in addition to or waiver of: (idifferent than that required to be given pursuant to a tenant’s Lease, this condition will be satisfied for such tenant(s) timely receipt of all necessary consents and approvals as 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 any tenant not later than ten days prior to the Closing, then, in lieu thereof, Seller shall provide to Buyer a certificate pertaining to that tenant’s Lease covering the same matters that would have been set forth in Paragraph 13(a)(ithe tenant’s estoppel certificate (and if, after the Closing, Seller delivers to Buyer a tenant estoppel certificate from a tenant for whom Seller executed a Seller’s certification at the Closing, then Seller thereafter shall be released from said certification). Subject to the preceding sentence, Seller’s liability in connection with any Seller’s certificate shall not merge into any instrument or conveyance delivered at the Closing; provided, however, that any action, suit or proceeding with respect to the truth, accuracy or completeness of such certificate shall be commenced and served, if at all, on or before the date which is one (1) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on year after the date of Closingthe Closing and, if not commenced and served on or before such date, thereafter shall be void and of no force or effect.
7.1.4 There shall be no material breach of any of Seller’s representations, warranties or covenants set forth in Section 4 and Section 8, as of the Closing.
7.1.5 Seller shall have delivered to the Escrow Company the items described in Section 3.8.
7.1.6 On and as of the Closing Date, Seller’s lender shall have approved and consented to Buyer’s assumption of the Existing Loan on terms and conditions acceptable to Buyer, and Buyer shall have assumed Seller’s obligations under the Existing Loan. Seller shall reasonably cooperate and assist with obtaining the approval and consent of its lender to Buyer’s assumption of the Existing Loan.
7.1.7 On and as of the Closing Date, Seller shall have complied with its obligations under Section 4.9 and Exhibit I.
7.1.8 On and as of the Closing Date, there shall not be pending a condemnation or similar proceeding related to all or any portion of the Property, nor shall there have been since the date hereof a material change in the physical condition of Closingthe Improvements, as a result of casualty or otherwise. The conditions set forth in this Section 7.1 are solely for the benefit of Buyer and may be waived only by Buyer. Buyer shall, at all times prior to the termination of this Agreement, have the right to waive any of these conditions. The closing of the transaction shall constitute Buyer’s waiver of the conditions set out in this Section 7.1.
7.2 The following shall be conditions precedent to Seller’s obligation to consummate the purchase and sale transaction contemplated herein (iii) the termination“Seller’s Conditions Precedent”):
7.2.1 Buyer shall not have terminated this Agreement in accordance with Section 3.4, concurrent with Section 3.7 or Section 9.4 of this Agreement within the time periods described in said Sections.
7.2.2 Buyer shall have delivered to Escrow Company, prior to the Closing, of for disbursement as directed hereunder, all guaranties related to the MHFA Debt, and (iv) all cash or other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicableimmediately available funds due from Buyer in accordance with this Agreement.
(b) The obligation of Purchaser to consummate the transactions contemplated herein 7.2.3 There shall be subject to the occurrenceno material breach of any of Buyer’s representations, satisfaction warranties or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as covenants set forth in Paragraph 14(a)(i) herein;
(ii) the representations Section 3 and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of ClosingSection 5, as of the date of Closing;.
(iii) Purchaser 7.2.4 Buyer shall have obtained all licenses and permits necessary delivered to complete Escrow Company the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress items described in connection therewith;Section 3.8.
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, 7.2.5 Buyer shall have approved in writing assumed the sale of the MHFA Facilities to Purchaser Existing Loan.
7.2.6 Seller and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt its members shall have been met released from personal liability under the Existing Loan and all related guaranties. The conditions set forth in order to allow this Section 7.2 are solely for the sale benefit of the MHFA Facilities Seller and the assumption of the MHFA Debt may be waived only by ElderTrustSeller. Seller shall, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end termination of this Agreement, have the Study Period, Purchaser may propose the addition right to waive any of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablethese conditions.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Retail Opportunity Investments Corp)
Conditions Precedent to Closing. (a) The obligation of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be by this Agreement is subject to the occurrence, satisfaction or waiver of the following conditions:conditions on or before the Closing Date.
(ia) timely receipt of all necessary consents All governmental filings, authorizations and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) that are required for the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as consummation of the date of Closing;
(iii) Purchaser transactions contemplated hereby shall have been duly made and obtained on terms and conditions reasonably satisfactory to Purchaser, including all licenses and permits necessary to complete filings required by the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") Antitrust Improvements Act of 1976 of the United States of America or the EC Merger Regulation as amended or under the law of any other jurisdiction in which Purchaser or Seller does business having authority over the transactions contemplated hereby, and the Department of Housing and Urban Development ("HUD")waiting period, if necessaryany, required by such statutes or regulations shall have approved in writing the sale terminated or expired.
b) No proceeding brought by any third party or governmental entity shall be pending or threatened which seeks any injunction, restraining order or other order which would prohibit consummation of the MHFA Facilities transactions contemplated hereby or materially impair the ability of Purchaser to Purchaser own and ElderTrust's assumption of all operate the business and the assets of the Seller's then existing debts Company and obligations (without material modification except as may be reasonably customary its Subsidiaries after the Closing Date. particular, making all necessary filings with any applicable governmental entity and cooperating with each other in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), such filings and any other requirements under responses to governmental entities; provided, however, that in no event shall Purchaser be obligated to consider, or consummate, any sale, disposition, segregation or other arrangement affecting any assets or properties owned by either Purchaser or its affiliates, on the loan documents in connection with one hand, or by the MHFA Debt shall have been met in order to allow Company and its Subsidiaries, on the sale other hand, on account of the MHFA Facilities transaction contemplated herein, or any other action which would limit the freedom of Purchaser and the assumption of the MHFA Debt by ElderTrustits affiliates to own and operate their business, with Purchaser at all times using diligent good faith efforts to achieve such approval assets and meet such requirementsproperties as they see fit. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify assist Purchaser whether Seller will agree to any or all free of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing charge in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedypertinent procedures and, in which eventparticular, at provide the necessary information on the Companies for filings to be made by Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.
Appears in 1 contract
Conditions Precedent to Closing. (a) The 6.1 In addition to any other conditions to Purchaser’s obligation of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as close set forth in Paragraph 13(a)(i) herein; (ii) 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 made by Purchaser hereunder being contained in this Agreement shall be true and correct in all material respects when made and confirmed 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 writing 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 date “Title Policies”), provided that (i) in advance of Closing, as Purchaser shall have taken all necessary and customary actions to arrange for or allow issuance of such Title Policies by Title Company, and (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 date cost of Closingany 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 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 (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 terminationforegoing, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser“Guarantor”), as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein guarantor under each lease, shall be subject to the occurrence, satisfaction or waiver 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.
(i) timely receipt of all necessary consents and approvals as 6.2 In addition to any other conditions to Sellers’ obligation to close set forth in Paragraph 14(a)(i) herein;this Agreement, Sellers’ obligation to close hereunder is subject to each and all of the following conditions precedent:
(ii) the A. All of Purchaser’s representations and warranties made by Seller hereunder being contained in this Agreement shall be true and correct in all material respects when made and confirmed in writing on the date of Closing, also as of the date of Closing;Closing Date when remade.
(iii) Purchaser shall have obtained all licenses B. All documents, instruments and permits necessary assurances required hereunder to complete the legal transfer be delivered to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt Sellers shall have been met in order duly delivered to allow the sale Sellers.
C. All material covenants and agreements of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing under this Agreement shall have been executed duly performed and delivered by Seller and Purchaser, as applicablesatisfied.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Albertsons Companies, LLC)
Conditions Precedent to Closing. (a) A. The obligation of Seller Purchaser to consummate close this Contract shall, at the transactions contemplated herein shall option of Purchaser, be subject to the occurrencefollowing conditions precedent:
a. All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Contract shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the 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 Closingthis Contract.
b. There shall be no change in the matters reflected in the Title Commitment, (iii) and there shall not exist any encumbrance or title defect affecting the terminationSubject 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, concurrent and there shall not exist any easement, right-of-way, encroachment, waterway, pond, flood plain, conflict or protrusion with the Closing, of all guaranties related respect to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicableSubject Property not shown on the Survey.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) d. Purchaser shall have obtained all licenses a standard Texas owner’s form of title insurance policy (the “Title Policy”) issued by the Title Company and permits necessary insuring Purchaser in the amount of the Purchase Price that Purchaser has acquired good and indefeasible title to complete the legal transfer 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 of all written evidence, reasonably acceptable to Purchaser, showing the termination of the Properties (other than Cabot Park Village) lease of the Land and Improvements between TTLC, as operating assisted living facilitieslessor, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damagedT76, as defined in ▇▇lessee. If any such condition is not fully satisfied by closing, Purchaser’s sole remedy shall be 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 (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, the obligation of Purchaser to close this Contract shall, at the 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 sole remedy shall be either (a) to terminate this Contract by written notice to Seller whereupon (i) this Contract shall be cancelled, (ii) the initial ▇▇▇▇▇▇▇ money deposit of $25,000 shall be delivered to Seller by the Title Company, (iii) any other ▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection ▇ money deposited with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt Title Company by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to extend the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the closing date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 hereinArticle IX hereunder shall be returned to Purchaser by the Title Company, and (iv) orthereafter neither Seller nor Purchaser shall have any continuing obligations one unto the other (except for the obligations that expressly survive termination), at the election or (b) proceed with closing of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required transaction hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablenotwithstanding such condition.
Appears in 1 contract
Sources: Contract of Sale (Smith & Wollensky Restaurant Group Inc)
Conditions Precedent to Closing. Only the following (a) The obligation of Seller to consummate consistent with the transactions contemplated herein shall be Documentation Precedent and subject to the occurrencelast paragraph of Exhibit D): delivery of reasonably satisfactory customary (consistent with similar transactions for the Sponsor) legal opinions of counsel for the Borrower and the Guarantors; a certificate from the chief financial officer or other officer with reasonably equivalent duties of the Borrower in the form attached as Exhibit E (or, satisfaction at the Borrower’s option, a solvency opinion from an independent investment bank or waiver of: valuation firm of nationally recognized standing) with respect to Closing Date solvency (i) timely receipt on a consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby); all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (at least three business days prior to the Closing Date, in each case to the extent requested of the Borrower at least 10 business days prior to the Closing Date); customary corporate documents and officers’ and public officials’ certifications for the Borrower and the Guarantors; customary closing certificates; all necessary consents documents and approvals as set forth instruments required for the creation and perfection of security interests in Paragraph 13(a)(i) hereinthe Collateral, subject to permitted liens and the last paragraph of Exhibit D; (ii) execution of the representations Guarantees by the Guarantors, which shall be in full force and warranties made by Purchaser hereunder being true effect; evidence of authority for the Borrower and correct the Guarantors; accuracy of Specified Representations in all material respects and confirmed Target Representations (each such term as defined in writing on Exhibit D), in each case subject to the date last paragraph of Closing, as Exhibit D; and delivery of a notice of borrowing. The closing of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall Senior Facility will also be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as applicable conditions precedent set forth in Paragraph 14(a)(iSection 6 of the Commitment Letter and Exhibit D to the Commitment Letter. The Senior Facility Loan Documentation shall not contain (a) herein;
any conditions precedent other than the conditions precedent expressly set forth in the preceding paragraph, Section 6 of the Commitment Letter or Exhibit D to the Commitment Letter or (iib) any representation or warranty, affirmative, negative or financial covenant or event of default not set forth in Section 6 of the representations Commitment Letter or Exhibit D thereto, the accuracy, compliance or absence, respectively, of or with which would be a condition to the closing of the Senior Facility. The failure of any representation or warranty (other than the Specified Representations and warranties made by Seller hereunder being the Target Representations to the extent provided in Exhibit D) to be true and correct in all material respects and confirmed in writing any respect on the date Closing Date will not constitute the failure of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary a condition precedent to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed funding or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements a default under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableSenior Facility.
Appears in 1 contract
Sources: Additional Initial Lender Agreement (Pomegranate Merger Sub, Inc.)
Conditions Precedent to Closing. (a) 10.1 The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
10.1.1 All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Effective Date. Further, no Material Adverse Change shall have occurred prior to Closing with regard to the Seller’s representations. Seller shall not have on or prior to Closing, (iii) failed to meet, comply with or perform in any material respect any conditions or agreements on Seller’s part as required by the terminationterms of this Agreement.
10.1.2 There shall be no material adverse change in the matters reflected in the Title Report, concurrent with 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 Title Policy insuring fee simple and leasehold title vested in Buyer, with coverage in the full amount of all guaranties related the Purchase Price and showing only those exceptions to title which are approved or deemed approved by Buyer as specifically set forth herein, it being acknowledged that due to the MHFA Debtamount 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 (iv2) all other documents hereunder for 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 been executed by Seller obtained and Purchaserdelivered to Buyer estoppel certificates, as applicable.
in accordance with their respective Leases, from tenants representing seventy-five percent (b75%) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents square feet which are leased and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made occupied by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, tenants as of the date Effective Date, which shall include, at a minimum, estoppels from the following “Major Tenants”: Comerica, City of Closing;
(iii) Purchaser shall have obtained all licenses San Diego, TNS Market Development, Embassy CES, Akonix Systems and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇L▇▇▇▇▇▇▇ ▇▇ F▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities ▇ (collectively, the "MHFA Debt"“Estoppel Delivery [FINAL EXECUTION COPY] 24 Condition”). 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 executed estoppel certificate of its approval or disapproval and the basis of such 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 any other requirements under Seller is unable to obtain a reasonably acceptable estoppel certificate prior to the loan documents in connection with Closing, then, at Buyer’s election, this Agreement shall terminate, Buyer shall be entitled to a refund of the MHFA Debt Deposit, and neither party shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications any further obligation to the documents in connection with other except Buyer’s indemnification obligations under Paragraph 5. If Buyer has not received the MHFA Debt will be reasonably necessary in order for Purchaser required amount of estoppels to achieve such approval and meet such requirementssatisfy the Estoppel Delivery Condition by the date which is three (3) business days prior to Closing, then not later than Seller or Buyer shall be permitted to extend the Closing Date until five (5) Business Days prior to days after the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of all such proposalestoppels, to permit Seller to secure such estoppels to meet the Estoppel Delivery Condition, but in no event shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to extend Closing which agreement Seller may withhold in its sole and absolute discretion;
by more than thirty (vi30) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicabledays.
Appears in 1 contract
Conditions Precedent to Closing. (a) 10.1 The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth following conditions precedent:
10.1.1 There shall be no material adverse change in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct matters reflected in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA DebtTitle Report, and (iv) all other documents hereunder there shall not exist any material adverse encumbrance or title defect affecting the Property except for Closing shall have been executed by Seller and Purchaser, as applicablethe Permitted Exceptions or matters to be satisfied at Closing.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by 10.1.2 Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary delivered to complete Buyer estoppel certificates, substantially in the legal transfer to Purchaser of all of form attached hereto as Exhibit D, in accordance with their respective Leases, from the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities following tenants (collectively, the "MHFA Debt")“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 Seller 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 any other requirements under Seller is unable to obtain a reasonably acceptable estoppel certificate from such Required Tenant prior to the loan documents in connection with Closing, this Agreement shall, at Buyer’s option, terminate, Buyer shall be entitled to a refund of the MHFA Debt Deposit, and neither party shall have been met in order any further obligation to allow the sale other except Buyer’s indemnification obligations under Paragraph 5. Seller shall request the Required Tenants and each tenant of the MHFA Facilities Property to execute an estoppel certificate and shall use commercially reasonable efforts to obtain an estoppel certificate from the Required Tenants and the assumption other tenants of the MHFA Debt by ElderTrustProperty; provided, with Purchaser at all times using diligent good faith efforts however, the failure to achieve such approval and meet such requirementsobtain any estoppel certificate from tenants other than the Required Tenants shall not entitle Buyer to terminate this Agreement. IfIf Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this paragraph, during the Study PeriodSeller may, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than within five (5) Business Days prior to the end days of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will Buyer’s notices agree to any 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 all of fails to cure such additional conditions precedent to Closing which agreement Seller may withhold in its sole condition within such five day period and absolute discretion;
(vi) The Properties such condition is not waived by Buyer, this Agreement shall be in substantially canceled and the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, Deposit shall be extended for up returned to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close Buyer and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing neither party shall have been executed and delivered by Seller and Purchaser, as applicableany further liability hereunder.
Appears in 1 contract
Conditions Precedent to Closing. 9.1 The execution of the Sale and Purchase which is the purpose of this Agreement (apayment of the price and delivery of the Shares), and thus the closing of the transaction which is the purpose of this Agreement are expressly conditional on the fulfilment of the provisions of this clause prior to the Closing Date (as such term is defined in clause 10).
9.2 The Conditions Precedent listed in Clause 9.3 (i), (ii) The obligation and (iii)(b) are for the sole benefit of Seller the Purchaser except with respect to consummate the transactions contemplated herein consent provided for in Schedule 9.2, and the express waiver of the Conditions by Purchaser shall be subject equivalent to their performance for the occurrence, satisfaction or waiver ofpurposes of this Agreement. In the event that the consent provided for in Schedule 9.2 has not been obtained: (i) timely receipt the Purchaser will not be entitled to waive such condition 9.3(i) in respect of all necessary 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 of 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 approvals 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 set forth provided for in Paragraph 13(a)(iClause 9.2 and continue with the performance of this Agreement; or
(b) hereinterminate 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 representations and warranties made Sellers shall provide a certificate issued by Purchaser hereunder being true and correct in all material respects and confirmed in writing the relevant bank to which the credit stands containing a statement on the date of Closingexact amount, including but not limited to any related costs and expenses, required to fully amortize the relevant debt as of the date of Closing, on Closing Date (iii) such bank certificates will be included by the terminationSellers in the notice to be sent to Purchaser on April 15, concurrent 2004, together with any further information as described under Clause 2.6 and shall be taken into account in order to calculate the ClosingPrice Adjustments pursuant to Clause 2.5. Additionally, the Sellers shall indemnify the Purchaser by means of all guaranties related 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 MHFA Debttransfer of the Oil Tankers have not been obtained by the Closing Date, and (iv) but all other documents hereunder for Closing shall the consents corresponding to the LNG Vessels have been executed by Seller and Purchasergranted, as applicable.
(b) The obligation then either of Purchaser to consummate the parties may elect that the transactions contemplated herein shall in this Agreement be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA completed with respect to the MHFA Facilities LNG Business, for a price of USD ONE HUNDRED AND SEVENTY MILLION (collectivelyUSD 170,000,000) to be adjusted in accordance with Clause 2.5. For the purposes of this Clause 9.8, the "MHFA Debt")references contained in this Agreement to the Shipping Business shall be 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 and any other requirements 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 loan documents in connection with same terms and conditions, mutatis mutandi, of this Agreement, as a means to acquire and transfer the MHFA Debt shall have been met in order to allow LNG Business. The LNG 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 sale expiration of the MHFA Facilities and the assumption term of exercise of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts LNG Call Option.
9.9 In the event that the consents referred to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications in paragraph 9.3.(i) referred to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end transfer of the Study PeriodLNG Vessels have not been obtained by the Closing Date, the Purchaser may propose elect that the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold transactions contemplated in its sole and absolute discretion;
(vi) The Properties shall this Agreement be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof completed with respect to titlethe LNG Business, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars for a price of USD ONE HUNDRED AND SEVENTY MILLION ($100,000USD 170,000,000) to remedybe adjusted in accordance with Clause 2.5., and in which this case, the Purchaser shall indemnify the Sellers of any costs, expenses, losses and damages vis a vis the banks due to such lack of consent. For the purposes of this Clause 9.9, the references contained in this Agreement to the Shipping Business shall be deemed to be made, mutatis mutandi, to the LNG Business. In this event, at 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 election’s rights under this Clause 9.9, Seller either shall remedy NFT hereby grants to the Purchaser a Call Option (the “Second LNG Call Option”) as a means to purchase and sale all and only all the NFT Subsidiaries Shares under the same prior terms and conditions, mutatis mutandi, of this Agreement, as a means to Closing (which, if such remedy cannot acquire and transfer the LNG Business. The Second LNG Call Option will be cured prior to the original exercised within a term of 15 business days after Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.
Appears in 1 contract
Conditions Precedent to Closing. (a) 10.1 The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
10.1.1 There shall be no material adverse change in the matters reflected in the Title Report, satisfaction and there shall not exist any material adverse encumbrance or waiver of: (i) timely receipt of all necessary consents 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 approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on after the date of Closing, as this Agreement shall not constitute a material adverse change for purposes of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicablethis Section 10.1.1.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser 10.1.2 Parent shall have obtained all licenses and permits necessary delivered to complete Buyer estoppel certificates, substantially in the legal transfer to Purchaser of all of the Properties (form attached hereto as Exhibit B or in such other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except form as may be reasonably customary permitted or required in connection accordance with sales and assumptions the terms of similar MHFA transactions) to MHFA with respect to their respective Leases, from the MHFA Facilities following tenants (collectively, the "MHFA Debt")“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 any other requirements under Parent is unable to obtain a reasonably acceptable estoppel certificate from such Required Tenant prior to the loan documents in connection with Closing, this Agreement shall, at Buyer’s option, terminate, Buyer shall be entitled to a refund of the MHFA Debt Deposit, and neither party shall have been met in order any further obligation to allow the sale other except Buyer’s indemnification obligations under Paragraph 5. Parent shall request the Required Tenants and each tenant of the MHFA Facilities Property to execute an estoppel certificate and shall use commercially reasonable efforts to obtain an estoppel certificate from the Required Tenants and the assumption other tenants of the MHFA Debt by ElderTrustProperty; provided, with Purchaser at all times using diligent good faith efforts however, the failure to achieve such approval and meet such requirementsobtain any estoppel certificate from tenants other than the Required Tenants shall not entitle Buyer to terminate this Agreement. IfIf Buyer notifies Parent of a failure to satisfy the conditions precedent set forth in this paragraph, during the Study PeriodParent may, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than within five (5) Business Days prior to the end days of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will Buyer’s notices agree to any 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 all of fails to cure such additional conditions precedent to Closing which agreement Seller may withhold in its sole condition within such five day period and absolute discretion;
(vi) The Properties such condition is not waived by Buyer, this Agreement shall be in substantially canceled and the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, Deposit shall be extended for up returned to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close Buyer and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing neither party shall have been executed and delivered by Seller and Purchaser, as applicableany further liability hereunder.
Appears in 1 contract
Sources: Merger Agreement (Grubb & Ellis Co)
Conditions Precedent to Closing. (a) The obligation of Seller In addition to consummate the transactions contemplated herein other conditions set forth in this Agreement, the following shall be subject conditions precedent to the occurrenceparties’ obligation to close hereunder unless waived by the party benefiting from such contingency:
a. As to each party, satisfaction all obligations to be performed by the other party hereunder prior to the Closing have been fully performed, and there shall be no uncured event of default or waiver of: (i) timely receipt event on the part of such other party that, with the expiration of any grace period permitted by the Agreement, would constitute a default of such party.
b. As to each party, all necessary consents of the representations and approvals warranties of the other party set forth in this Agreement shall be true and accurate as of Closing.
c. As to Buyer, Buyer has received the requisite percentage of Tenant Estoppels as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of 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 date termination of Closingthe Contracts rejected by Buyer pursuant to Section 2.7.1, (iii) or other evidence reasonably satisfactory to Buyer that neither the termination, concurrent with Buyer nor the Closing, of all guaranties related Property will be obligated under the rejected Contracts subsequent to the MHFA DebtClosing Date.
f. As to each party, all terms and (ivconditions of Section 1.13(b) all other documents hereunder for Closing of the Deed of Trust shall have been executed by Seller and Purchasersatisfied, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, Lender shall have approved in writing the sale transfer of the MHFA Facilities Property to Purchaser Buyer and ElderTrust's assumption of the Loan Assumption and Lender shall have fully released and discharged Seller and the Guarantors from all of the Seller's then existing debts liabilities and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA under or with respect to the MHFA Facilities Loan, except for any liabilities and obligations of Seller and the Guarantors that expressly survive assignment, transfer or repayment of the Loan (collectivelythe “Lender Approval”).
g. As to Buyer, Buyer and Lender shall have agreed to the "MHFA Debt")New Loan Documents, and any other requirements under the including loan documents modifications reasonably required by Buyer in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableLoan Assumption.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Conditions Precedent to Closing. (a) The Purchaser’s obligation of to purchase the Property from Seller to consummate the transactions contemplated herein shall be is subject to the occurrencefollowing conditions precedent (collectively, satisfaction or waiver of: (i) timely receipt the “Conditions Precedent”), each of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder which are for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions’s benefit only:
(i) timely receipt Title. Within seven (7) calendar days from the Seller’s execution of all necessary consents and approvals this Agreement, Seller shall cause the Title Company (as set forth in Paragraph 14(a)(ihereinafter defined) herein;
(ii) to provide Purchaser, at Seller’s expense, with a preliminary title report for the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and (the Personal Property “Preliminary Report”), which Preliminary Report shall not have been materially and adversely destroyed or damagedbe issued by Orange Coast Title Company, as defined in whose offices are located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Title Company”; attention Ms. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") ), together with copies of all exceptions and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing documents supporting the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities exceptions (collectively, the "MHFA Debt"“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”), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to review the documents Preliminary Report and approve or disapprove of the condition of the title reflected in connection with the MHFA Debt will Preliminary Report (the “Condition of Title”), which approval or disapproval must be reasonably necessary in order for Purchaser to achieve such approval a writing which shall be received by Seller and meet such requirements, then not later than five (5) Business Days Escrow Agent prior to the end of the Study Due Diligence Period, Purchaser may propose . Should both the addition Escrow Agent and Seller not actually receive Purchaser’s written approval or disapproval of such modifications as additional conditions precedent the Preliminary Report prior to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Due Diligence Period, reasonable wear and tear and casualty and taking as permitted herein exceptedsaid non-receipt shall be deemed to be Purchaser’s acceptance of the Property, and also excepting conditions first arising Purchaser does hereby expressly waive any and all rights it may otherwise have or had to cancel the 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 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 hereof with respect to title, survey, zoning and environmental matters, costing in on which the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's electionSeller executes this Agreement, Seller either shall remedy not alter the same prior to Closing (which, if such remedy cannot be cured prior to Condition of Title without the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election express written consent of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.
Appears in 1 contract
Sources: Purchase and Sale Agreement (TNP Strategic Retail Trust, Inc.)
Conditions Precedent to Closing. (a) The following conditions shall exist at the time of Closing hereunder, and the obligation of Seller Purchaser to consummate the transactions contemplated herein close hereunder shall be expressly conditioned upon and subject to the occurrencesatisfaction (or written waiver by Purchaser) of each such condition:
A. Seller shall have delivered to Purchaser an estoppel certificate (a “Tenant Estoppel”) from those tenants listed on Exhibit K attached hereto (the “Required Tenant Estoppels”), satisfaction and Seller will use commercially reasonable efforts to obtain Tenant Estoppels from all other tenants at the Property, substantially in the form of the tenant estoppel certificate attached hereto as Exhibit G, or waiver of: is such form as is required by a Lease, dated after the Effective Date. Closing may be extended by Seller for up to fifteen (i15) timely receipt days to allow Seller to obtain the foregoing Tenant Estoppels.
B. Seller shall have used commercially reasonable efforts to deliver estoppel certificates dated after the effective date for any reciprocal easements agreement identified by Purchaser during the Title Review Period in the form and to the extent required under such agreements (the “REA Estoppels”). Closing may be extended by Seller for up to fifteen (15) days to allow Seller to obtain the REA Estoppels.
C. The Title Company will be in a position to issue a policy of title insurance to Purchaser in the full amount of the Purchase Price showing title vested in the Purchaser, subject only to the Permitted Exceptions.
D. SNDAs for all necessary consents recorded Leases and approvals as all Leases required by Purchaser’s lender, in form and substance reasonably acceptable to Purchaser’s lender. If any one or more of the conditions set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, above are not satisfied as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder specified for Closing shall have been executed by Seller hereunder, then Purchaser shall, at its option, either (a) waive such condition in writing and Purchasermake full Closing under this Agreement without any adjustment in the Purchase Price, as applicable.
(b) The obligation of further extend Closing for up to thirty (30) days to allow Seller additional time to satisfy the conditions, or (c) terminate this Agreement, whereupon the Deposit will be paid to the Purchaser to consummate the transactions contemplated herein and Seller and Purchaser shall be subject to thereupon released from all further liability or obligation under the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Agreement. Purchaser shall have obtained all licenses and permits necessary the right to complete the legal transfer to Purchaser of waive some or all of the Properties (other than Cabot Park Village) foregoing conditions as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold determined in its sole and absolute discretion;
(vi) The Properties ; provided, however, that no such waiver shall be effective or binding on Purchaser unless it is in substantially the same condition as they were at the end of the Study Period, reasonable wear writing and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at executed by Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Broad Street Realty, Inc.)
Conditions Precedent to Closing. The occurrence of the Effective Date shall be subject 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, including but not limited to, the following: • The negotiation, execution and delivery of definitive documentation with respect to the Restructuring contemplated by this Term Sheet and the Restructuring Support Agreement, reasonably acceptable to the 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 (a) the “Claims Cap”), 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 excluded from the Claims Cap. In order to determine the total amount of general unsecured claims, the 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, the Steering Committee will consent to an extension of any relevant milestones in this Term Sheet to allow for the Company and the 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 obligation of Seller Company shall cooperate on a timely basis with all licensing and other regulatory requests required in order to consummate the transactions contemplated herein hereby. Releases & Exculpation To the fullest extent permitted by applicable law, the Restructuring shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth include a full release from liability in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as favor of the date 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 (including 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) of Closingthe Company, (iii) the terminationExisting Equity Holders, concurrent with the ClosingAdministrative Agent, and the Existing Lenders from any claims and causes of all guaranties action related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction Company arising on or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end Effective Date. To the fullest extent permitted by applicable law, the Restructuring shall include a customary exculpation provision providing a standard of liability for the conduct of the Study Period, Purchaser may propose professionals during the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end course of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableChapter 11 Cases.
Appears in 1 contract
Conditions Precedent to Closing. (a) The obligation of Seller to consummate the transactions contemplated herein shall be subject Prior to the occurrenceClosing, satisfaction or waiver of: ESL shall have received legal opinions addressed to ESL and each subscriber to the Private Placement from counsel for the Company, confirming the representations and warranties of the Company contained in Section 4, substantially in the form attached hereto as Exhibit "E".
(ib) timely receipt ESL shall have received a fully executed Placement Agent's Option Certificate from the Company for the options earned upon the Closing.
(c) ESL shall have received a fully executed Registration Rights Agreement with respect to the Placement Agent's Units and the ESL Option Shares from the Company for the ESL Option Shares and Placement Agent's Units earned upon the Closing.
(d) ESL shall have received a fully-executed Lock-Up Agreement from each shareholder of all necessary consents and approvals the Company as set forth in Paragraph 13(a)(i6(c). PLACEMENT AGREEMENT OF MICRO-MEDIA SOLUTIONS, INC. 13
(e) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as ESL shall have received a certified copy of the date resolution of Closingthe Board of Directors of the Company authorizing the transactions contemplated herein.
(f) The Company shall have filed with the Office of the Secretary of State of Utah a Certificate of Designation acceptable to ESL, substantially in the form attached hereto as Exhibit "C".
(iiig) The Company shall have amended its Bylaws in such a manner so as to make its Bylaws consistent with the terminationterms and conditions of this Agreement and the transactions contemplated herein, concurrent with a copy of which will have been provided to ESL.
(h) Prior to the Closing, of all guaranties related to the MHFA Debtescrow agent, and Cardinal International Bank & Trust Co., Ltd. (iv) all other documents hereunder for Closing the "Escrow Agent"), shall have been executed by Seller and Purchaser, as applicablereceived the certificates representing the Placement Agent's Units earned for the Private Placement.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) Prior to the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessaryEscrow Agent, shall have approved in writing received a fully-executed subscription agreement from each subscriber to the sale Private Placement.
(j) ESL shall have received an opinion addressed to ESL and each subscriber to the Private Placement, from counsel satisfactory to ESL, concerning the merger of the MHFA Facilities to Purchaser Company with and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedyinto Mountain State Resources Corporation, in which event, at Purchaser's election, Seller either shall remedy the same prior form and substance satisfactory to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableESL.
Appears in 1 contract
Conditions Precedent to Closing. (a) The following shall be conditions precedent to Purchaser's obligation of Seller to consummate the transactions purchase and sale transaction contemplated herein shall be subject to (the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and "Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:'s Conditions Precedent"):
(i) timely receipt Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 5, Section 16(a) or Section 16(b) of all necessary consents and approvals as set forth this Agreement within the time periods described in Paragraph 14(a)(i) herein;said Sections.
(ii) Title Company shall stand ready to issue, at the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing Closing, an owner's policy of title insurance on the date standard owner's form issued in the Commonwealth of Pennsylvania (the "Title Policy"), insuring Purchaser's interest in the Real Property, dated the day of the Closing, as with liability in the amount of the date of Closing;Purchase Price, subject only to the standard exclusions from coverage and the Permitted Exceptions.
(iii) Purchaser shall have obtained all licenses received and permits necessary reasonably approved, prior to complete the legal transfer Closing, executed estoppel certificates substantially in the form of Exhibit C hereto 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, provided, however, that if the form of estoppel certificate attached hereto as Exhibit C 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 any of the executed estoppel certificates including, without limitation, those used to satisfy the percentage requirement set forth in the preceding sentence, contains new information which is adverse to Purchaser and which information was not previously disclosed to Purchaser or delivered to Purchaser pursuant to Section 5 above, Purchaser shall have the right to terminate this Agreement and the Deposit, plus all interest accrued thereon, shall be immediately refunded to Purchaser. If Seller is unable to obtain an estoppel certificate from any tenant, then, in lieu thereof, Seller shall provide to Purchaser a certificate pertaining to that tenant covering the same matters that would have been set forth in the tenant's estoppel certificate (and if, after the Closing, Seller delivers to Purchaser a tenant estoppel certificate from a tenant for whom Seller executed a Seller's certification at the Closing, then Seller thereafter shall be released from said certification). Subject to the preceding sentence, Seller's liability in connection with any Seller's certificate shall not merge into any instrument or conveyance delivered at the Closing; provided, however, that any action, suit or proceeding with respect to the truth, accuracy or completeness of all such certificate shall be commenced and served, if at all, on or before the date which is six months (6) months after the date of the Properties (other than Cabot Park Village) as operating assisted living facilitiesClosing and, if not commenced and served on or before such date, thereafter shall be void and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;no force or effect.
(iv) There shall be no material breach of any of Seller's representations, warranties or covenants set forth in Section 6 and Section 10, as of the Closing.
(v) Seller shall have delivered to the Escrow Company the items described in Section 11. The Real Property conditions set forth in this Section 9(a) are solely for the benefit of Purchaser and may be waived only by Purchaser. Purchaser shall, at all times prior to the Personal Property termination of this Agreement, have the right to waive any of these conditions.
(b) The following shall be conditions precedent to Seller's obligation to consummate the purchase and sale transaction contemplated herein (the "Seller's Conditions Precedent"):
(i) Purchaser shall not have been materially terminated this Agreement in accordance with Section 4, Section 5, Section 16(a) or Section 16(b) of this Agreement within the time periods described in said Sections. (ii) Purchaser shall have delivered to Escrow Company, prior to the Closing, for disbursement as directed hereunder, all cash or other immediately available funds due from Purchaser in accordance with this Agreement.
(iii) There shall be no material breach of any of Purchaser's representations, warranties or covenants set forth in Section 5 and adversely destroyed or damagedSection 7, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;of the Closing.
(▇iv) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, Purchaser shall have approved delivered to Escrow Company the items described in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations Section 12.
(without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactionsv) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than On or before five (5) Business Days prior to business days after the end execution of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposalthis Agreement, Seller shall have obtained final approval of the transaction contemplated by this Agreement from Seller's Investment Committee. If Seller notifies Purchaser in writing that it has not received said approval or if Seller fails to notify Purchaser whether of said approval, this Agreement shall be null and void and the parties shall have no further obligations or liabilities hereunder except that (i) any money or documents in escrow shall be returned to the party depositing the same and (ii) Seller will agree shall be responsible for any Cancellation Fees and Purchaser's obligation to any or all of restore the Property under Section 5(a), Purchaser's indemnification obligations under Section 5(b), and Purchaser's confidentiality obligations under Section 8 shall survive such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;termination.
(vi) The Properties Seller shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing have received a fully executed letter in the aggregate less than One Hundred Thousand Dollars ($100,000form attached hereto as Exhibit D from the broker(s) to remedy, identified in which eventSection 18 below. The conditions set forth in this Section 9(b) are solely for the benefit of Seller and may be waived only by Seller. Seller shall, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured all times prior to the original Closing Datetermination of this Agreement, shall be extended for up have the right to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election waive any of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablethese conditions.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Brandywine Realty Trust)
Conditions Precedent to Closing. (a) 10.1 The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
10.1.1 All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of 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 (iii85%) of the terminationsquare feet which are leased and occupied by Tenants as of the Effective Date. Prior to delivery to Tenants, concurrent 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 all guaranties related the Deposit, and neither party shall have any further obligation to the MHFA Debtother except Buyer’s indemnification obligations under Section 5. Notwithstanding the foregoing, and (iv) all other documents hereunder if a Tenant’s Lease provides for Closing shall have been executed a different standard for an estoppel certificate, compliance therewith by Seller and Purchaser, as applicableshall be deemed to compliance herewith.
(b) 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 obligation obligations of Purchaser to consummate Seller under this Agreement shall, at the transactions contemplated herein shall option of Seller, be subject to the occurrence, satisfaction or waiver following conditions precedent:
10.2.1 All of the following conditions:
(i) timely receipt representations, warranties and agreements of all necessary consents and approvals as Buyer set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesEffective Date, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property Buyer shall not have been materially 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 received 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, Seller shall reimburse Buyer for its direct, actual out-of-pocket costs and adversely destroyed or damagedexpenses relating to this transaction, as defined not to exceed Fifty Thousand Dollars ($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 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") whose favor the condition runs shall notify the other party and may terminate this Agreement by written notice whereupon this Agreement may be canceled, the Due Diligence Items shall be returned, and the Department of Housing and Urban Development ("HUD")Deposit shall be paid to Buyer and, thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder; provided, however, if necessaryBuyer notifies Seller of a failure to satisfy the conditions precedent set forth in this Section, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectivelySeller may, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than within five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will Buyer’s notice (the “Notice Period”) agree to any or all of such additional conditions precedent satisfy the condition by written notice to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein exceptedBuyer, and also excepting conditions first arising after Buyer shall thereupon be obligated to close the date hereof with respect transaction provided Seller so satisfies such condition within an additional five (5) day period (the “Extended Closing Date”). If Seller fails to title, survey, zoning and environmental matters, costing in agree to cure such condition during the aggregate less than One Hundred Thousand Dollars ($100,000) Notice Period or fails to remedy, in which event, at Purchaser's election, Seller either shall remedy cure such condition by the same prior to Closing (which, if such remedy cannot be cured prior to the original Extended Closing Date, this Agreement shall be extended for up canceled, the Deposit shall be returned to ninety (90) days in connection therewith Buyer, the Due Diligence Items shall be returned to Seller and neither party shall have any further liability hereunder, except as expressly set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablethis Agreement.
Appears in 1 contract
Conditions Precedent to Closing. 7.1 The following shall be conditions precedent to Purchaser’s obligation to consummate the purchase and sale transaction contemplated herein (the “Purchaser’s Conditions Precedent”):
(a) The obligation of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents representations and approvals as warranties set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being Section 4 shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date Closing Date except for breaches thereof which do not in the aggregate have a material adverse effect on the value of Closingthe Real Property or Seller Subsidiary Interest, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debteach taken as a whole, and (iv) all other documents hereunder for Closing each Seller shall have been executed duly and substantially performed each and every material covenant, undertaking and agreement to be performed by Seller Sellers under this Agreement, including the delivery of the documents described in Sections 9.1 and Purchaser, as applicable9.2 hereof.
(b) The Title Company shall be unconditionally prepared and irrevocably committed to issue ALTA extended coverage owner’s policies of title insurance (the “Title Policies”) insuring the interest of each Applicable Seller Subsidiary Entity and Purchaser, as successor by merger to such Applicable Seller Subsidiary Entity, in each Applicable Real Property, dated the Closing Date, with an aggregate liability for each policy of title insurance in the amount of the Purchase Price for the Applicable Subsidiary Entity Interests of the Applicable Seller Subsidiary Entity owning the Applicable Property, in the forms, containing such endorsements, and subject only to such exceptions as have been reasonably approved by Sellers, Purchaser and Purchaser’s Lender.
(c) With respect to the Boulder Property, Purchaser shall have received at least seven (7) days prior to the Closing, (i) an executed Ground Lessor Consent and Estoppel Certificate from the lessor under the Boulder Ground Lease substantially in the form of Exhibit J-1 attached hereto (with such changes thereto reasonably approved by Purchaser and Purchaser’s Initial Lender), dated no more than thirty (30) days prior to the Closing (the “Ground Lessor Estoppel Certificate”) and (ii) an executed Fee Mortgagee Estoppel Certificate from any mortgagee of fee title to the Boulder Ground Leased Land substantially in the form of Exhibit J-2 attached hereto (with such changes thereto reasonably approved by Purchaser and Purchaser’s initial lender), dated no more than thirty (30) days prior to the Closing (the “Fee Mortgagee Estoppel Certificate”).
(d) Each Seller shall have formed its Applicable Seller Subsidiary Entity and transferred its Applicable Property to its Applicable Seller Subsidiary Entity in the manner required under Section 2.1 above.
(e) Concurrently or substantially concurrently with the Closing (i) the Merger (as defined in the Merger Agreement) shall be consummated, (ii) SCI shall have entered into the Master Lease, and (iii) SCI and the Sellers shall have entered into the Subleases. If any of the foregoing Purchaser’s Conditions Precedent are not satisfied with respect to a particular Property or Subsidiary Entity Interests, Purchaser shall have the right at its sole election either to waive the condition in question and proceed with the purchase of such Subsidiary Entity Interests pursuant to all of the other terms of this Agreement or, in the alternative, to terminate this Agreement with respect to such Subsidiary Entity Interests or in its entirety. In the event that Purchaser elects to terminate this Agreement with respect to such Subsidiary Entity Interests as provided in the foregoing sentence, this Agreement shall become null and void without further obligation on the part of Purchaser and Seller of such Subsidiary Entity Interests with respect to such Subsidiary Entity Interests. In the event Purchaser elects to terminate this Agreement in its entirety, this Agreement shall become null and void without further obligation on the part of Purchaser and Sellers.
7.2 The obligation of Purchaser each Seller to consummate the transactions contemplated herein shall be subject hereunder to occur on the occurrence, satisfaction or waiver Closing Date are each conditioned on the fulfillment of the following conditions(“Sellers’ Conditions Precedent”) on and as of the Closing Date:
(a) The truth, in all material respects, of each and every representation and warranty made by Purchaser and the due performance of each and every material covenant, undertaking and agreement to be performed by Purchaser under this Agreement (including, but not limited to, the delivery by Purchaser of the items, and the making of the payments, described in Section 10 below).
(b) Concurrently or substantially concurrently with the Closing (i) timely receipt the Merger (as defined in the Merger Agreement) shall be consummated and (ii) Purchaser shall have entered into the Master Lease.
(c) The Title Company shall be unconditionally prepared and irrevocably committed to issue ALTA extended coverage leasehold owner’s policies of all necessary consents title insurance insuring SCI’s leasehold estate under the Master Lease and approvals each Seller’s leasehold estate under the Sublease for the Applicable Property, dated the day and time of the Closing, with an aggregate liability for each policy of title insurance in the amount of the Purchase Price for the Applicable Property (or such other amount designated by such Seller), in forms approved by Sellers, and subject only to such exceptions as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as Title Policies. If any of the date foregoing Sellers’ Conditions Precedent are not satisfied with respect to a particular Property or Subsidiary Entity Interests, the Seller of Closing;
(iii) Purchaser such Subsidiary Entity Interests shall have obtained all licenses the right at its sole election either to waive the condition in question and permits necessary proceed with the sale of such Subsidiary Entity Interests pursuant to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesterms of this Agreement or, and of Cabot Park Village as an operating independent living facility. Purchaser agrees in the alternative, to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA terminate this Agreement with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents such Subsidiary Entity Interests or in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunderits entirety. In the event that such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree elects to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof terminate this Agreement with respect to title, survey, zoning and environmental matters, costing such Subsidiary Entity Interests as provided in the aggregate less than One Hundred Thousand Dollars ($100,000) foregoing sentence, this Agreement shall become null and void without further obligation on the part of Purchaser and such Seller with respect to remedysuch Subsidiary Entity Interests. In the event any Seller elects to terminate this Agreement in its entirety, this Agreement shall become null and void without further obligation on the part of Purchaser and Sellers.
7.3 Notwithstanding anything to the contrary contained herein, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior event that the Merger Agreement is terminated pursuant to the original Closing Dateterms thereof, this Agreement shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at automatically terminate and become null and void without further obligation on the election part of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableSellers.
Appears in 1 contract
Conditions Precedent to Closing. The Company is the owner of the regional shopping center operated as "Eastland Mall" in Charlotte, Mecklenburg County, North Carolina, (a"the Mall"). The fee title estate (the "Mall Land") The obligation of Seller to consummate the transactions contemplated herein shall be Mall is subject to the occurrence, satisfaction or waiver of: (i) timely receipt a series of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other loan documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA DebtLoan Documents") originally dated as of August 11, 1998. The Loan Documents evidence a certain loan (the "Loan") which is identified as loan no. 400031904 by the current lender ("Lender"), LaSalle National Bank Association, trustee for CAPCO America Securitization Corporation Commercial Mortgage Pass-Through Certificates, Series 1998-D7. Prior to the Closing of this Agreement, the Lender must consent to the Transfer. The Lender's consent is coordinated through CapMark Services, L.P. ("CapMark") which is the servicer ("Loan Servicer") of the Loan. One component of receiving the Lender's consent is obtaining the necessary "no downgrade letters" from the applicable rating agencies (collectively the "Rating Agencies") which rate the Loan which was securitized. The Seller's obligation to sell, and any other requirements the Purchaser's obligation to purchase the Interest, is subject to obtaining all necessary consents from the Lender, Loan Servicer, and/or the Rating Agencies (all of which consents are collectively referred herein as the "Lender Consents") as are required under the loan Loan Documents and all other documents to which the Loan has been made subject to by the Lender in connection with the MHFA Debt securitization of the Loan. Obtaining the Lender Consents and the payment of the Purchase Price are the sole condition precedents to the Closing of the Transfer, but the parties acknowledge and recognize that each of them is otherwise obligated to comply with all of their respective obligations set forth in this Agreement. The Purchaser agrees to prepare and process all documents and agreements, (collectively, the "Transfer Approval Documents") with the Loan Servicer, the Lender and the Rating Agencies necessary to obtain all such Lender Consents, and Purchaser agrees to use commercially reasonable efforts to obtain the Lender Consents as expeditiously as possible, using commercially reasonable efforts to obtain all of same. Seller shall have been met the right to approve all Transfer Approval Documents which require its signature, and Seller agrees to act in order a commercially reasonable manner in negotiating the content of all Transfer Approval Documents which it must sign, and further agrees to allow use commercially reasonable efforts to expeditiously finalize and execute all such Transfer Approval Documents. Provided, however, it is specifically acknowledged that Seller shall not be required to pay any amounts other than its own counsel fees associated with the sale review and negotiation of the MHFA Facilities Transfer Approval Documents, and Seller shall not be required to consent to any Transfer Approval Document that provides for the assumption imposition of any charge against or payment by or on behalf of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts Company that would change the cash that would have otherwise been distributable to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications Seller relating to its Interest up to the documents Closing Date. No Transfer Approval Documents shall contain terms and conditions which are inconsistent with the terms of this Agreement. Neither Purchaser nor Seller shall be in default under the terms of this Agreement if the Lender Consents are not obtained, notwithstanding the respective commercially reasonable efforts of Purchaser and Seller to obtain same prior to the Escrow Termination Date (as that term is defined in Section 5C of this Agreement). Purchaser and Seller shall each pay their own respective legal fees incurred in connection with obtaining the MHFA Debt will be reasonably necessary Lender Consents and in order for reviewing any and all documents submitted in connection therewith. Purchaser to achieve such approval shall pay the processing fees, costs and meet such requirements, then not later than five (5) Business Days prior to the end expenses charged by or on behalf of the Study PeriodLender, Purchaser may propose CapMark, the addition of such modifications as additional conditions precedent to Rating Agencies in connection with approving the Closing hereunder. In such eventTransfer and obtaining the required Lender Consents, no later than two (2) Business Days after its receipt of such proposalincluding without limitation, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole the costs and absolute discretion;
(vi) The Properties shall be in substantially expenses associated with the same condition as they were at the end preparation and processing of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableTransfer Approval Documents.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Glimcher Realty Trust)
Conditions Precedent to Closing. (a) The 6.1 In addition to any other conditions to Purchaser’s obligation of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as close set forth in Paragraph 13(a)(i) herein; (ii) this Agreement, Purchaser’s obligation to close hereunder is subject to each and all of the following conditions precedent:
A. All of Seller’s representations and warranties made by Purchaser hereunder being contained in this Agreement shall be true and correct in all material respects when made and confirmed 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 Seller under this Agreement shall have been duly performed and satisfied.
D. At Closing, Escrowee will be committed to deliver to Purchaser one or more ALTA owner's title insurance policies with extended coverage (to the extent that extended coverage is available in writing a particular jurisdiction), or in the case of Properties in the State of 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 (each, a “Title Policy” and collectively, the “Title Policies”), in an amount not less than the portion of the Purchase Price allocated to such Property on Schedule I in the date Schedules, provided that (i) in advance of Closing, as Purchaser shall have taken all necessary and customary actions to arrange for or allow issuance of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debtsuch Title Policies by Escrowee, and (ivii) all necessary premiums or other documents hereunder charges required for Closing the issuance of such Title Policies are paid pursuant to Section 12.1. The immediately preceding sentence shall have been executed by Seller and Purchaser, as applicablesurvive the termination of this Agreement.
(b) The 6.2 In addition to any other conditions to Seller’s obligation of Purchaser to consummate the transactions contemplated herein shall be close set forth in this Agreement, Seller’s obligation to close hereunder is subject to the occurrence, satisfaction or waiver each and all of the following conditionsconditions precedent:
(i) timely receipt A. All of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the Purchaser’s representations and warranties made by Seller hereunder being contained in this Agreement shall be true and correct in all material respects when made and confirmed in writing on the date of Closing, also as of the date of Closing;Closing Date when remade.
(iii) Purchaser shall have obtained all licenses B. All documents, instruments and permits necessary assurances required hereunder to complete the legal transfer be delivered to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order duly delivered to allow the sale Seller.
C. All material covenants and agreements of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing under this Agreement shall have been executed duly performed and delivered by Seller and Purchaser, as applicablesatisfied.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Four Corners Property Trust, Inc.)
Conditions Precedent to Closing. In addition to a complete and satisfactory due diligence investigation by ▇▇▇▇▇, as described in Section 4.1 above, the obligations of Buyer to complete the transactions contemplated by this Agreement are conditioned upon the following conditions precedent (collectively, the “Conditions Precedent”). The Conditions Precedent are intended solely for the benefit of Buyer and may only be waived by ▇▇▇▇▇ in writing.
(a) The obligation All of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the Seller’s representations and warranties contained in or made by Purchaser hereunder being pursuant to this Agreement shall be materially true and correct in all material respects and confirmed in writing on the date as of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation physical condition of Purchaser to consummate the transactions contemplated herein Property shall be substantially the same on Closing as on the Effective Date, unless such condition was altered by Buyer, reasonable wear and tear and loss by casualty (subject to the occurrence, satisfaction or waiver provisions of the following conditions:Section 6.9 below) excepted.
(ic) timely receipt Seller shall have complied with all of all necessary consents Seller’s duties and approvals as set forth obligations contained in Paragraph 14(a)(i) herein;this Agreement.
(iid) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;shall have received a title insurance commitment satisfactory to Buyer in which the title insurer agrees to issue an ALTA Extended Coverage Owner’s Policy (Form 1970-B, rev 10/17/70) with such endorsements as Buyer may require and an ALTA survey satisfactory to Buyer.
(▇e) The Massachusetts Housing Finance Agency Notwithstanding any other provision contained herein, all ("MHFA"i) and the Department of Housing and Urban Development ("HUD")consensual indebtedness, if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt")mortgages, and any other requirements under liens of Seller recorded against the loan documents in connection with Property, and (ii) all non-consensual liens against Seller recorded against the MHFA Debt Property shall have been met in order removed (except for the Permitted Encumbrances).
(f) Buyer shall have received an appraisal report regarding the Property from Medusky & Co., Inc., which shall indicate a value that is equal to allow or greater than the sale Purchase Price. In the event any of the MHFA Facilities and the assumption Conditions Precedent of the MHFA Debt this Agreement are not satisfied as shall be determined by ElderTrustBuyer, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. IfBuyer may, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein exceptedterminate this Agreement by written notice to Seller and, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior subject to the original Closing Dateprovisions of Article 7 below, this Agreement shall be extended for up wholly cease and terminate and no party to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing this Agreement shall have been executed and delivered by Seller and Purchaserany further claim against, as applicableor obligation to, any other party to this Agreement except for any provisions herein that recite that they survive such termination.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions Precedent to Closing. The obligation of each Lender to convert Existing Advances to Term Loans and to continue any Term Loan on the Second Restatement Date is subject to the satisfaction of the following conditions precedent before or concurrently with the Second Restatement Date:
(a) The obligation Agent shall have received on or before the Second Restatement Date the following, each dated as of Seller to consummate the transactions contemplated herein shall be subject Second Restatement Date (unless otherwise specified), in form and substance satisfactory to the occurrenceAgent (unless otherwise specified) and (except for any Term Note) in sufficient copies for each Lender:
(A) Original counterparts to this Agreement executed by each Loan Party, satisfaction or waiver of: and (iB) timely receipt Term Notes payable to the order of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; each Lender to the extent requested by any Lender pursuant to Section 2.15.
(ii) (A) U.S. Security Agreement Supplement in form and substance satisfactory to Agent executed by TLSP Investments pursuant to which the representations TLSP Investments Subordinated Debt is pledged to the Collateral Agent for its benefit and warranties made the benefit of the Lenders and (B) U.S. Guaranty Supplement in form and substance satisfactory to Agent executed by Purchaser hereunder being true TLSP Investments.
(iii) The Acknowledgment and correct Consent executed by the Borrower and each other Loan Party that is a U.S. Subsidiary or Canadian Subsidiary of the Borrower, in substantially the form of Exhibit I, together with:
(A) certificates representing the Pledged Interests accompanied by undated stock powers executed in blank, and instruments evidencing the Pledged Debt indorsed in blank including, without limitation, notes evidencing all material respects TLSP Subordinated Debt (in each case to the extent not previously delivered to the Agent in connection with the Existing Credit Agreement),
(B) financing statements, to be duly filed on the Second Restatement Date under the Uniform Commercial Code of the States of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and confirmed protect the Liens created under the Collateral Documents, covering the Collateral described in writing the U.S. Security Agreement (taking into account all financing statements previously filed in connection with the Existing Credit Agreement),
(C) completed requests for information, dated on or before the date of the Second Restatement Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party or any of its Subsidiaries as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreements that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(E) evidence of the insurance required by the terms of the U.S. Security Agreement,
(F) copies of the Assigned Agreements, if any, referred to in the U.S. Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the U.S. Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) executed termination statements (Form UCC-3 or a comparable form), in proper form to be duly filed on the date of Closing, as of the date of Closing, (iii) Second Restatement Date under the termination, concurrent with the Closing, Uniform Commercial Code of all guaranties related jurisdictions that the Agent may deem desirable in order to terminate or amend existing Liens in favor of any Person other than Agent on the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicableCollateral described in the U.S. Security Agreement.
(bH) The obligation of Purchaser the Blocked Account Letters referred to consummate in the transactions contemplated herein shall be subject U.S. Security Agreement, duly executed by each Blocked Account Bank listed on Schedule 3.01(a)(iii)(H), in form and substance satisfactory to the occurrence, satisfaction or waiver of Agent (to the following conditions:extent not previously delivered to the Agent in connection with the Existing Agreement),
(iI) timely receipt of all necessary consents and approvals as set forth the Securities Account Control Agreement, if any, referred to in Paragraph 14(a)(i) herein;the U.S. Security Agreement, duly executed by each securities intermediary referred to in such Security Agreement, and
(iiJ) evidence that all other action that the representations Agent may deem necessary or desirable in order to perfect and warranties made by Seller hereunder being true protect the Liens and correct in all material respects security interests created under the Security Agreements, the Debenture and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;Debenture Pledge Agreement has been taken.
(iv) The Real Property First Amendment to U.S. Security Agreement in form and substance satisfactory to Agent executed by the Borrower and each other Loan Party that is a U.S. Subsidiary of the Borrower.
(v) The First Amendment to the TLSP Trademarks Subordination Agreement in form and substance satisfactory to Agent executed by TLSP Trademarks, Inc., TeleSpectrum Worldwide (Canada) and the Personal Property shall not have been materially and adversely destroyed or damagedBorrower.
(vi) The Agent, as defined in secured party for the Lenders, shall have released its Lien on the stock of eSatisfy.com, Inc. and payables owing from eSatisfy.com, Inc. t▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇y as of the date hereof which shall ▇▇ ▇▇▇▇gned to McCown De Leeuw and certain of their affiliates in settlement o▇ ▇;▇▇ MDC Subordinated Debt.
(▇vii) The Massachusetts Housing Finance Agency [Intentionally Omitted]
("MHFA"viii) Borrower shall have made a payment in the amount of $176,215.28 to the Agent for distribution to the Lenders in accordance with their Pro Rata Shares under the Existing Credit Agreement.
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party and TLSP Investments, dated reasonably near the Second Restatement Date, in each case listing the charter of each Loan Party or TLSP Investments, as applicable, and each amendment thereto on file in such office and certifying that (A) such charter is a true and correct copy thereof, (B) such amendments are the only amendments to such charter on file in such office, (C) such Person has paid all franchise taxes to the date of such certificate and (D) such Person is duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation.
(x) A copy of a certificate of the Secretary of State of each of the States listed on Schedule 3.01(a)(x), dated reasonably near the Second Restatement Date, with respect to each Loan Party as listed on Schedule 3.01(a)(x) and TLSP Investments, stating that such Person is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the Department date of Housing such certificate.
(xi) A certificate of each Loan Party and Urban Development TLSP Investments, signed on behalf of each such Person by its President and its Secretary, dated the Second Restatement Date ("HUD"the statements made in which certificate shall be true on and as of the Second Restatement Date), if necessarycertifying as to (A) the absence of any amendments to the charter of such Person since the date of the Secretary of State's certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws of such Person as in effect on the Second Restatement Date, copies of which shall be attached, (C) the due incorporation and good standing or valid existence of such Person as a corporation organized under the laws of the jurisdiction of its incorporation and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the completeness and accuracy of the representations and warranties contained in the Loan Documents as though made on and as of the Second Restatement Date, (E) the absence of any event occurring and continuing that constitutes a Default, (F) the approval and authorization of the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party as evidenced by appropriate resolutions of the board of directors of each such Loan Party, copies of which shall be attached, and (G) the signature and incumbency certificates of the officers of each such Loan Party executing the Loan Documents to which it is a party.
(xii) [Intentionally Omitted]
(xiii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lenders shall have approved in writing requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under or with respect to Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated December 31, 2001, which shall classify the sale Obligations of the MHFA Facilities Borrower to Purchaser the Lenders as long term liabilities, and ElderTrust's assumption forecasts prepared by management, in form and substance satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on a monthly basis for the period commencing on the Second Restatement Date through and including the Final Maturity Date.
(xiv) [Intentionally Omitted]
(xv) A letter, in form and substance satisfactory to the Agent, from the Borrower to Arthur Andersen LLP, its independent certified public accountan▇▇, ▇▇v▇▇▇▇▇ ▇▇ch accountants that the Agent and the Lenders have been authorized to exercise all rights of the Seller's then existing debts Borrower to require such accountants to disclose any and obligations (without material modification except as all financial statements and any other information of any kind that they may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA have with respect to the MHFA Facilities Borrower and its Subsidiaries and directing such accountants to comply with any reasonable request of the Agent or any Lender for such information.
(collectivelyxvi) Evidence of insurance naming the Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks as is satisfactory to the "MHFA Debt"Lenders, including, without limitation, business interruption insurance, product liability insurance, and directors and officers insurance.
(xvii) [Intentionally Omitted]
(xviii) Favorable opinions of (A) Cozen O'Connor, counsel to the Loan Parties, in the form of Exhibit H-▇ ▇▇▇ (B) McMillan Binch, Canadian counsel to the Loan Parties, in the fo▇▇ ▇▇ ▇▇h▇▇▇▇ H-2.
(xix) [Intentionally Omitted]
(xx) Evidence of (i) each Structured Vendor Settlement set forth on Schedule 5.02(b)(ii)(F), and any other requirements under the loan documents in connection (ii) with the MHFA exception of Debt shall have been met in order to allow the sale identified on Schedule 3.01(a)(xx) as "Unrestructured Debt," a restructuring of all other Debt of the MHFA Facilities Loan Parties, including, without limitation, Debt evidenced by the MDC Subordinated Debt (as defined in the Existing Credit Agreement) in each case in form and substance satisfactory to the Agent and the assumption Lenders, duly executed by each of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval requisite parties and meet such requirements. If, during appropriate Loan Party.
(b) The board of directors of the Study Period, Purchaser Borrower shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than comprised of five (5) Business Days directors, with three (3) directors designated by the holders of the Series B Convertible Preferred Stock (who shall not be current employees of any Lender).
(c) The Lenders shall be satisfied with the corporate and legal structure and capitalization of the Borrower and its Subsidiaries.
(d) Before giving effect to the transactions contemplated by this Agreement, except with respect to the revenue deterioration previously disclosed to Agent and Lenders, there shall have occurred no Material Adverse Change since December 31, 2001.
(e) Other than as set forth on Schedule 4.01(j), there shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any other Loan Party or any of their Subsidiaries pending or threatened before any court, governmental agency or arbitrator that could have a Material Adverse Effect.
(f) The Lenders shall have completed a due diligence investigation of the Borrower and its Subsidiaries (including, without limitation, a field examination of the quality of their current assets and of their management information systems) in scope and with results satisfactory to the Lenders, and nothing shall have come to the attention of the Lenders during the course of such due diligence investigation to lead them to believe (i) that any material information provided to the Agent or the Lenders has become misleading, incorrect or incomplete in any material respect and (ii) without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries, as they shall have requested.
(g) The Borrower shall have delivered to the Agent and each Lender a copy of the unaudited consolidated financial statements for January 2002.
(h) The Borrower shall have delivered to the Agent and each Lender a copy of the annual audit report for the Borrower and its Subsidiaries for the Fiscal Year ended on December 31, 2001, which shall classify the Obligations of the Borrower to the Lenders as long term liabilities, and which shall include a Consolidated balance sheet of the Borrower and its Subsidiaries, as of December 31, 2001, and Consolidated statements of operations and cash flows of the Borrower and its Subsidiaries, in each case for the Fiscal Year ending December 31, 2001, accompanied by an opinion of Arthur Andersen, LLP, together with (i) a copy of any management lett▇▇ ▇▇▇p▇▇▇▇ ▇▇ Arthur Andersen, LLP with respect to such Fiscal Year 2001 and distri▇▇▇▇▇ t▇ ▇▇▇ ▇▇rrower, (ii) a certificate of the chief financial officer of the Borrower stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto, (iii) in the event of any change from GAAP in the generally accepted accounting principles used in the preparation of such financial statements, a statement of reconciliation conforming such financial statements to GAAP, and (iv) a schedule in form satisfactory to the Agent of the computations used by the Borrower in determining compliance with the financial covenants contained in this Agreement.
(i) All conditions to Closing set forth in the Restructuring Agreement shall have been satisfied or waived in writing by the appropriate party.
(j) The Borrower shall have delivered to the Agent and each Lender a copy of its preliminary report containing forecasts prepared by management of the Borrower, in form satisfactory to the Agent, of Consolidated balance sheets, statements of operations and cash flows on a monthly basis for the Fiscal Year 2002.
(k) The Borrower shall have delivered to the Agent and each Lender a copy of its report identifying all leased real property together with a description of the lease term, the annual rent payments, and any options to extend such Lease, all leased property for facilities in which the Borrower and its Subsidiaries are no longer conducting operations, all leased real property which has been disposed of during the most recent Fiscal Year, and all leased real property to be disposed of in the succeeding Fiscal Year, in form and substance satisfactory to the Agent and the Lenders (the "LEASED REAL PROPERTY REPORT").
(l) [Intentionally Omitted]
(m) [Intentionally Omitted]
(n) [Intentionally Omitted]
(o) The Borrower shall have delivered to the Agent and each Lender (i) a corporate organizational chart, and (ii) a list of all management level employees of the Borrower and its Subsidiaries terminated during the six months immediately preceding the Second Restatement Date, as well as any severance arrangements relating to any such termination in form satisfactory to the Agent.
(p) All fees and expenses payable to counsel for and the financial advisors to the Agent and the Lenders incurred on or prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing Second Restatement Date shall have been executed and delivered by Seller and Purchaser, as applicablepaid in full.
Appears in 1 contract
Conditions Precedent to Closing. Within ten (a10) days from the date of execution of this Contract, Seller shall submit to Purchaser, for Purchaser’s approval, the declaration of covenants, conditions and restrictions which Seller will adopt for the purpose of regulating development of the residential subdivision which will include the Subject Property as well as other property owned by Seller. This declaration must expressly provide that property subject to the declaration may be developed for time share use and that time share use is a permitted use thereunder. Purchaser shall have five (5) days from the date on which Seller provides Purchaser with a copy of the proposed declaration within which either to approve or disapprove the proposed declaration; if Purchaser approves the declaration, then Seller will record the declaration and provide Purchaser with a copy of the recorded declaration within five (5) days from the date on which Purchaser notifies Seller in writing that Purchaser has approved the declaration. If Purchaser does not approve Seller’s proposed declaration, then Purchaser may terminate this Contract by written notice to Seller at any time prior to the expiration of the Inspection Period, whereupon this Contract shall be cancelled, the ▇▇▇▇▇▇▇ money (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. Within forty-five (45) days from the date of execution of this Contract, Purchaser shall submit to Seller for Seller’s approval Purchaser’s plans for development of a time share project at the Subject Property. Purchaser’s plans shall include a site plan, grading and drainage plans, landscaping plans, plans for access to and from the Subject Property, and plans for the exterior appearance, color and texture of any buildings to be constructed on the Subject Property. If for any reason Seller has not approved Purchaser’s plans prior to the expiration of the Inspection Period, then Purchaser may terminate this Contract by written notice to Seller, whereupon this Contract shall be cancelled, the ▇▇▇▇▇▇▇ money (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. The obligation of Seller Purchaser to consummate close this Contract shall, at the transactions contemplated herein shall option of Purchaser, be subject to the occurrencefollowing additional conditions precedent:
a. All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Contract shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debthereof and at each closing, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially on or prior to each 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.
b. There shall be no change in the matters reflected in the Title Commitment, and adversely destroyed there shall not exist any encumbrance or damagedtitle 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, as defined 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 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 described in Article VI hereinabove. If any such condition is not fully satisfied at the time of each closing hereunder, Purchaser may terminate this Contract by written notice to Seller whereupon this Contract shall be cancelled, all ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
money (▇less $100.00) The Massachusetts Housing Finance Agency ("MHFA") shall be returned to the Purchaser, and the Department of Housing and Urban Development ("HUD"), if necessary, thereafter neither Seller nor Purchaser shall have approved in writing any continuing obligations one unto the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableother.
Appears in 1 contract
Conditions Precedent to Closing. (a) The Purchaser’s obligation of Seller to consummate the transactions transaction contemplated herein by this Agreement shall be subject to the occurrence, satisfaction or waiver ofof each of the following conditions (“Conditions Precedent”) on or before the Contingency Date:
(a) Title/Survey. Seller, at its sole cost and expense, shall furnish to Purchaser as soon as possible, but in no event later than, within seven (7) business days after the Effective Date, the following: (i) timely receipt a current title commitment for an extended coverage owner’s title insurance policy with respect to the Real Property issued by the Title Company (“Commitment”) together with copies of all necessary consents underlying title documents listed in the Commitment (other than any of Seller’s financing documents), with the commitment of the Title Company to insure fee title to the Real Property and approvals as set forth in Paragraph 13(a)(i) herein; to delete exceptions 1 through 5 with respect to the Real Property, and (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on most recent ALTA survey for the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related Real Property to the MHFA Debtextent in Seller’s records. Purchaser, at Purchaser’s sole cost and expense, shall have the right to require (i) that such survey be certified to Purchaser and Purchaser’s lender, and (ivii) all that such survey be updated and revised to add any additional Table A items reasonably required by Purchaser or Purchaser’s lender. If the Survey discloses survey defects or other documents hereunder for Closing shall have been executed by Seller and matters or if the Commitment shows exceptions or other matters that are objectionable to Purchaser, as applicable.
(b) The obligation which are not attributable to the acts and/or omission of Purchaser or its Affiliates, and/or the Title Company refuses to consummate issue any endorsement requested by Purchaser which is otherwise available in the transactions contemplated herein shall be subject State of Idaho due solely to the occurrence, satisfaction or waiver unique characteristic of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed Real Property, then Purchaser shall notify Seller, in writing (the “Title Notice”), on or before the date of Closing, as of the date of Closing;
that is ten (iii10) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days days prior to the end of Contingency Date, specifying any such objectionable matter. If Purchaser timely delivers the Study PeriodTitle Notice, Purchaser may propose then on or before the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposalContingency Date, Seller shall notify may provide Purchaser whether Seller with adequate assurances in writing that any such objectionable matter will agree be removed or endorsed over to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.’s satisfaction on
Appears in 1 contract
Conditions Precedent to Closing. (a) The obligation of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt Seller shall have no knowledge of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
any suit, action, investigation, inquiry or other proceeding by any governmental authority or any other person, pending or threatened, relating to the Property or the operation of the Facilities, which would have a material adverse effect on the Properties; (ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all Department of Social Services licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating independent and/or assisted living facilities, and of Cabot Park Village as an operating independent living facilityis appropriate for each specific property. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding submit applications for such efforts licenses and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, permits during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end first thirty days of the Study Period, : Purchaser may propose shall promptly provide Seller with a copy of all such applications and will keep Seller apprised of the addition status of such modifications as additional conditions precedent application processing; (iii) Seller shall deliver to the Closing hereunder. In such eventPurchaser true copies of properly executed letters from Seller to all tenants under the Leases to be dated as of Closing, no later than two (2) Business Days after its receipt advising of such proposalthe change of ownership, which letters may be prepared jointly by Seller shall notify and Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end option of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars Purchaser; ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(viiiv) All other documents required hereunder for Closing shall have been executed and delivered by Seller and PurchaserSeller.
(c) In the event any condition precedent set forth in this Paragraph 8 is not satisfied in full as of the date scheduled for Closing, pursuant to Section 9, as applicableextended in accordance with such Section 9, the party in favor of whom such condition precedent is made may, in its sole discretion, (i) waive the condition in writing or (ii)provide the other party with written notice of its intention to terminate this Agreement. If the unsatisfied condition is not satisfied within five (5) days following receipt of such notice, then this Agreement shall be terminated, upon which, in the case of a failure of the conditions set forth in Paragraph 8(b), the Deposit and all accrued interest shall be returned to Purchaser and no party shall have any further obligation hereunder, provided however Seller shall have the right to extend the Closing date for up to sixty (60) days and Purchaser may not terminate the Agreement during such extention if the unsatisfied condition arises under Paragraph 8(b)(ii) and such licenses and permits can reasonably be obtained during the extention period.
Appears in 1 contract
Conditions Precedent to Closing. (a) 10.1 The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
10.1.1 All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects as of the Effective Date, and confirmed Seller shall not have on or prior to closing, failed to meet, comply with or perform in writing 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 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.
10.1.3 Seller shall, no less than three (3) days prior to the Closing, deliver to Buyer estoppel certificates for tenants representing seventy percent (70%) of the square feet which are leased by tenants as of the Effective Date ("Estoppel Threshold"), which shall include (i) Tenant Estoppels (as defined herein) for Cisco and Rubbermaid (or its successors or assigns) or (ii) Tenant Estoppels for Cisco and InfoEdge and a Seller Estoppel (as defined herein) for Rubbermaid (or its successors or assigns). Buyer and Seller agree that Seller may provide and Buyer shall accept a Seller Estoppel if Seller cannot obtain an estoppel pre-closing from Rubbermaid. Seller shall, pre-closing, cooperate with Buyer in obtaining, but shall not be obligated to obtain, any subordination, non-disturbance and attornment agreement requested by Buyer's lender. All estoppel certificates shall be substantially in the form which such tenants are required to provide pursuant to the terms of each tenant's respective lease, or, at Seller's option, in the form of Exhibit G attached hereto and incorporated herein by this reference ("Tenant Estoppel"). In the event Seller cannot for any reason obtain a tenant estoppel letter from a tenant from whom an estoppel letter is required, Seller, at its option, may deliver to Buyer a Seller's (landlord) estoppel letter in the form of Exhibit H attached hereto and incorporated herein by this reference ("Seller Estoppel"). Seller, in its sole discretion, will add commercially reasonable content to the Tenant Estoppel, as requested, to satisfy Buyer's lender. For purposes of the foregoing sentence, the determination of "commercially reasonable content" shall be determined by Seller in its sole discretion. Seller's liability under Seller's estoppel letters shall expire and be of no further force or effect on the date ninetieth (90th) day following the Closing Date; provided, however, that if Seller shall obtain an estoppel certificate from any such tenant after delivery of Closingsuch Seller's estoppel letter with respect to a tenant, Seller's (landlord) estoppel letter shall, as of the date of a tenant's estoppel letter, be without further force or effect. Seller's liability, under the Seller's estoppel certificates shall automatically terminate and be of no further force and effect upon satisfaction of the Estoppel Threshold, irrespective of whether such tenant estoppels are received before or after Closing. Seller shall have no liability or responsibility for the information set forth in the estoppel certificates delivered by the tenants. Estoppel certificates shall be deemed to satisfy this condition precedent unless they disclose materially adverse matters and/or are inconsistent with the documents delivered pursuant to Section 4.1.10. Buyer shall notify Seller within five (5) business days of receipt of a copy of the executed estoppel certificate of its approval or disapproval and the basis of such disapproval, (iii) the terminationif disapproved. If Buyer disapproves of an estoppel certificate because of a material, concurrent with adverse matter disclosed therein, and Seller is unable to obtain a reasonably acceptable estoppel certificate prior to the Closing, but in no event later than fifteen (15) days after Buyer's disapproval of all guaranties related same, this Agreement shall terminate, Buyer shall receive a refund of the Deposit and neither party shall have any further obligation to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicableexcept Buyer's indemnification obligations under Paragraph 5.
(b) 10.2 The obligation obligations of Purchaser to consummate Seller under this Agreement shall, at the transactions contemplated herein shall option of Seller, be subject to the occurrence, satisfaction or waiver following conditions precedent:
10.2.1 All of the following conditions:
(i) timely receipt representations, warranties and agreements of all necessary consents and approvals as Buyer set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesEffective Date, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed on or damagedprior to closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer's part as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;required by the terms of this Agreement.
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, 10.2.2 Seller shall have approved in writing the sale received approval of the MHFA Facilities to Purchaser and ElderTrust's assumption of Sale from all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then entities comprising Seller not later than five seven (57) Business Days prior to business days following the end of the Study Inspection Period, Purchaser may propose the addition . Upon receipt of such modifications as additional conditions precedent to the Closing hereunderapproval, Seller shall immediately notify Buyer of such approval in writing ("Seller's 10.2.2 Approval"). In the event Seller shall not receive such eventapproval, no later than Seller shall provide Buyer with written notice of such non-approval ("Seller's 10.2.2 Notice"), terminate the Agreement, and, notwithstanding Section
2.1.1 of this Agreement, return the Deposit to Buyer within two (2) Business Days business days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at PurchaserSeller's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable10.
Appears in 1 contract
Conditions Precedent to Closing. The Lenders shall not be required to fund any requested Term Loan, or otherwise extend credit to the Borrower hereunder on the Closing Date, until the following conditions have been satisfied (or waived):
(a) The obligation Loan Documents required on the Closing Date and the Perfection Certificate shall have been duly executed and delivered to the Administrative Agent by each of Seller the Obligor signatories thereto.
(b) The Administrative Agent shall have received UCC, tax, judgment and intellectual property lien searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Obligor as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches as the Administrative Agent may reasonably require, none of which encumber the Collateral covered or intended to consummate be covered by the transactions contemplated herein Security Documents (other than Permitted Liens) and all actions necessary to establish that the Administrative Agent, for the benefit of the Secured Parties, will have a perfected security interest in and Lien on the Collateral with the priority required by the Loan Documents and (subject to Permitted Liens and to the terms of the Intercreditor Agreement) shall have been taken to the extent required by the terms of this Agreement and the Security Documents (other than the Mortgages); (provided, that the only actions that shall be subject required on the Closing Date to establish that the Administrative Agent will have a perfected Lien on the Collateral shall be the delivery of certificated securities, if any, evidencing the Equity Interests of the Obligors (other than Holdings) and their direct, wholly-owned subsidiaries and the perfection of the Administrative Agent’s security interest in any other Collateral of the Obligors pursuant to which a lien may be perfected by the filing of UCC financing statements.
(c) The Administrative Agent shall have received certificates, reasonably satisfactory to it (A) from the Chief Financial Officer of Holdings and the Borrower certifying that, after giving effect to the occurrenceTransactions, satisfaction or waiver of: Holdings, the Borrower and their Restricted Subsidiaries, taken as a whole, are Solvent; and (B) from a Senior Officer of the Borrower certifying that (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being in Section 4 and in the Security Documents are true and correct in all material respects (except in the case of any representation or warranty which expressly relates to a given date or period, such representation and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein warranty shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the respective date or for the respective period, as the case may be); provided that to the extent any representation and warranty is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, the definition thereof shall be a Material Adverse Effect for purposes of Closing;the making (or deemed making) of such representations and warranties on, or as of, the Closing Date (or any date prior thereto) and (ii) after giving effect to the Transactions, the Borrower and its Subsidiaries shall have no outstanding third party indebtedness for borrowed money or “disqualified” preferred stock other than the Loans and other extensions of credit under this Agreement, the ABL Facility, the Senior Unsecured Debt and Debt permitted by Section 6.1.
(d) The Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment, redemption, defeasance, discharge, refinancing or termination in full of all Existing Term Loans and all accrued interest and other amounts then due and owing under the Existing Term Loan Agreement and the release (or the making of arrangements for the release) of Liens in favor of the Existing Secured Notes Agent for the benefit of the lenders thereunder.
(e) The Administrative Agent shall have received evidence reasonably satisfactory to it of the delivery of irrevocable notice for the repayment or redemption of the Existing Secured Notes Debt to the extent accompanied by any prepayments or deposits required to defease, terminate and satisfy in full the obligations under the Existing Secured Notes Indenture or Existing Secured Notes Debt (including the delivery of an Officer’s Certificate pursuant to Section 3.01 of the Existing Secured Notes Indenture and the release (or the making of arrangements for the release) of Liens in favor of the Existing Secured Notes Agent for the benefit of the noteholders thereunder.
(f) The Administrative Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that an attached copy of such Obligor’s Organic Documents is true and complete and continue in full force and effect; (ii) that an attached copy of resolutions or written consent authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are or written consent is in full force and effect as of the Closing Date and were duly adopted; and (iii) Purchaser to the title, name and signature of each Person authorized to sign the Loan Documents.
(g) The Administrative Agent shall have obtained all licenses and permits necessary received a written opinion of counsel to complete the legal transfer Borrower, in form reasonably satisfactory to Purchaser the Administrative Agent.
(h) The Administrative Agent shall have received good standing certificates for each Obligor, issued by the Secretary of all State or other appropriate official of such Obligor’s jurisdiction of organization.
(i) The Administrative Agent shall have received certificates of insurance of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear Obligors evidencing liability and casualty and taking as permitted herein excepted, and also excepting conditions first arising after insurance meeting the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as requirements set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableLoan Documents.
Appears in 1 contract
Conditions Precedent to Closing. (a) The 9.1 Purchaser’s obligation of Seller to consummate the transactions contemplated herein close under this Purchase Contract shall be subject to and conditioned upon the occurrence, satisfaction or waiver of: (i) timely receipt fulfillment in all material respects of each and all necessary consents 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 approvals as 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 Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Purchase Contract shall have been true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debtwhen made, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, Closing Date and as of the Effective Date as though such representations and warranties were made at and as of such date of Closing;and time.
(iii) Purchaser 9.1.3 Seller shall have obtained complied with, fulfilled and performed, in each case in all licenses and permits necessary to complete the legal transfer to Purchaser of all material respects, each of the Properties (other than Cabot Park Village) as operating assisted living facilitiescovenants, terms and of Cabot Park Village as an operating independent living facility. Purchaser agrees conditions to use diligent good faith efforts to obtain all such licenses and permits and to keep be complied with, fulfilled or performed by Seller advised regarding such efforts and progress in connection therewith;hereunder.
(iv) The Real Property and the Personal Property 9.1.4 There shall not have been materially and adversely destroyed be pending or, to the knowledge of either Purchaser or damagedSeller, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD")any litigation or threatened litigation which, if necessarydetermined adversely, shall have approved in writing would restrain the sale consummation of any of the MHFA Facilities to Purchaser and ElderTrust's assumption of all transactions contemplated by this Purchase Contract or declare illegal, invalid or nonbinding any of the Seller's then existing debts and covenants or obligations of the Purchaser.
9.1.5 The Improvements (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectivelyincluding, but not limited to, the "MHFA Debt")mechanical systems, plumbing, electrical, wiring, appliances, fixtures, heating, air conditioning and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities ventilating equipment, elevators, boilers, equipment, roofs, structural members and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5furnaces) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be at Closing in substantially the same condition as they were at on the end Effective Date of the Study Period, reasonable this Purchase Contract except for normal wear and tear and such damage from casualty and taking as permitted herein exceptedor condemnation that is waived or accepted under ARTICLE 13 hereof.
9.1.6 The conversion of the Property Owner from a Georgia limited liability company to a Delaware limited liability company in accordance with the laws of the 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 of the rights of Seller elsewhere provided for in this Purchase Contract, and also excepting conditions first arising after the date hereof Seller’s obligation to close with respect to title, survey, zoning and environmental matters, costing in conveyance of the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, Property under this Purchase Contract shall be extended for up subject to ninety (90) days in connection therewith as 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 Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing this Purchase Contract shall have been executed true and delivered 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.
9.2.2 Purchaser shall have complied with, fulfilled and performed, in each case in all material respects, each of the covenants, terms and conditions to be complied with, fulfilled or performed by Seller and Purchaser, as applicablePurchaser hereunder.
Appears in 1 contract
Sources: Purchase and Sale Contract (Preferred Apartment Communities Inc)
Conditions Precedent to Closing. (a) The Purchaser’s obligation of Seller to consummate close the transactions contemplated herein hereunder shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closingfollowing conditions precedent, (iii) the terminationprovided that Purchaser, concurrent with at its election, upon written notice delivered to Seller at or prior to the Closing, may waive all or any of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following such conditions:
(i) timely receipt Purchaser shall have received estoppel certificates (with such non-material modifications as any tenant shall make thereto) (x) in the form attached hereto as Exhibit 1 or (y) in such form as prescribed in such tenant’s lease (each a “Tenant Estoppel” and collectively the “Tenant Estoppels”) from tenants leasing not less than seventy-five percent (75%) in the aggregate of all necessary consents and approvals as set forth the leased square footage of Leases in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, effect as of the date of Closing;
Closing Date (iii“Minimum Estoppel Percentage”) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all including each of the Properties following tenants: American Legislative Exchange Council and National Association of Student Financial Aid Administrators (other than Cabot Park Village) as operating assisted living facilitiesthe “Major Tenants”). In determining whether the foregoing requirement has been satisfied, and of Cabot Park Village as an operating independent living facility. Purchaser agrees not to use diligent good faith efforts object to (A) any non-material qualifications or modifications which a tenant may make to the form of Tenant Estoppel and/or (B) any modification to a Tenant Estoppel to conform it to the form of tenant estoppel the tenant is required to give under its Lease. Notwithstanding the foregoing, if Seller has obtained Tenant Estoppels from tenants leasing at least sixty-five percent (65%) in the aggregate of the lease square footage of Leases in effect as of the Closing Date (including each of the Major Tenants) but is unable to obtain all the Minimum Estoppel Percentage, then Seller may, at its election, satisfy such licenses and permits and to keep condition by delivering a Seller advised regarding Estoppel (defined below) instead of a Tenant Estoppel for any such efforts and progress Tenant(s) so that it obtains the Minimum Estoppel Percentage. A “Seller Estoppel” shall be an estoppel certificate from Seller which shall (x) be in connection therewith;
the form annexed hereto as Exhibit 2 (iv) The Real Property and the Personal Property with such non-material modifications as Seller shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"make thereto), and any other requirements under (y) expire one hundred eighty (180) days after the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirementsClosing Date. If, during after the Study PeriodClosing, Seller delivers to Purchaser, or Purchaser receives in substance, regardless of the form of the document, an estoppel from a tenant for which a Seller Estoppel was delivered, in whole or in part, then Seller shall thereafter be released from said Seller Estoppel to the extent the estoppel addressed the subject matter in the Seller Estoppel (it being agreed by Purchaser that the provisions of this subsection relating to the release of Seller upon such post Closing delivery shall survive Closing). In the event that Purchaser receives an estoppel certificate with material and adverse modifications to which it objects, Purchaser shall discover that material modifications deliver written notice of such objection to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than Seller (an “Estoppel Objection Notice”) within five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposalestoppel certificate. Failure of Purchaser to timely deliver an Estoppel Objection Notice shall be deemed a waiver of Purchaser’s right to object hereunder and such estoppel certificate shall be deemed valid for all purposes under this Section 11(a)(i). If Purchaser timely delivers an Estoppel Objection Notice and Seller is unwilling or unable to provide a replacement estoppel certificate curing the objections set forth in the Estoppel Objection Notice or to otherwise make Purchaser whole with respect to the matters objected to in the Estoppel Objection Notice, then the estoppel certificate objected to in the Estoppel Objection Notice shall not be deemed valid for purposes of this Section 11(a)(i). Notwithstanding the foregoing, if any tenant indicates in its Tenant Estoppel that it has a claim, which would entitle it to set-off the amount of the claim against rent due under its Lease and the amount of such claim is ascertainable and Purchaser timely delivers an Estoppel Objection Notice with respect thereto, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in have the right, at its sole and absolute discretion;
(vi) The Properties shall be in substantially option, to give Purchaser a credit against the same condition as they were at the end cash portion of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after Purchase Price in the date hereof amount of the claim or to deliver an indemnity reasonably acceptable to Purchaser with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedythereto, in which eventevent such Tenant Estoppel shall be deemed valid for the purposes of this Section 11(a)(i). Seller agrees to request a Tenant Estoppel from each of the tenants under the Leases and shall use commercially reasonable efforts to obtain Tenant Estoppels from the tenants; provided, at Purchaser's electionhowever, that Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior required to bring any actions against any tenant or to pay any amounts to any tenants to obtain the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablesame.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Republic Property Trust)
Conditions Precedent to Closing. (a) The following shall be conditions precedent to Purchaser’s obligation of Seller to consummate the transactions purchase and sale transaction contemplated herein shall be subject to (the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and “Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:’s Conditions Precedent”):
(i) timely receipt Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 5, Section 15(a) or Section 15(b) of all necessary consents and approvals as set forth this Agreement within the time periods described in Paragraph 14(a)(i) herein;said Sections.
(ii) Title Company shall be irrevocably and unconditionally committed to issue, at the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as an ALTA Owner’s Policy of title insurance (the “Title Policy”), insuring Purchaser’s fee simple interest in the Real Property, dated the day of the date Closing, with liability in the amount of Closing;the Purchase Price, subject only to the Permitted Exceptions, together with such endorsements as Purchaser may reasonably require.
(iii) Purchaser shall have obtained all licenses received and permits necessary approved, at least three (3) days prior to complete the legal transfer Closing, an executed estoppel certificate in the form of Exhibit I hereto dated not later than thirty (30) days prior to the Closing from the Tenant under the Lease, with only those changes to the form which are reasonably requested by the Tenant and required by the Lease and reasonably acceptable to Lender (defined below). Purchaser acknowledges that Seller has received comments from Tenant to the form attached as Exhibit I hereto and has provided those comments to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees for delivery to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;Lender.
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
KeyBank National Association (▇“Lender”) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved and funded a loan in writing the sale amount of 65% of the MHFA Facilities Purchase Price to Purchaser and ElderTrust's assumption of all finance the acquisition of the Seller's then existing debts and obligations Property. Without limiting the foregoing, (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions1) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt Purchaser shall have been met received a subordination and non-disturbance agreement (“SNDA”) in order the form attached hereto as Exhibit J, executed by Tenant with only those changes reasonably requested by the Tenant and required by the Lease and reasonably satisfactory to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, Lender (Seller will reasonably cooperate with Purchaser at all times using diligent good faith efforts to achieve such approval in obtaining an SNDA) and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt Lender shall have obtained an appraisal satisfactory to Lender indicating that the value of such proposalthe Property equals or exceeds the Purchase Price. Purchaser acknowledges that Seller has received comments from Tenant to the form attached as Exhibit J hereto and has provided those comments to Purchaser for delivery to Lender.
(v) Each and every representation and warranty of Seller set forth in Section 6 above shall be true, Seller shall notify Purchaser whether Seller will agree to any or complete and correct in all material respects as of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;the date of Closing.
(vi) The Properties Seller shall not be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepteddefault under any, and also excepting conditions first arising after the date hereof with respect shall have otherwise performed in full all, of its material obligations to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, be performed by Seller under this Agreement at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured or prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; andClosing.
(vii) All other documents required hereunder for Closing Neither Seller nor Tenant shall have been executed filed (or have had filed against it) any proceeding in bankruptcy, receivership or any similar proceeding.
(viii) Seller shall have delivered to the Escrow Agent the items described in Section 10.
(ix) No event constituting a “Material Adverse Change” shall have occurred following the Effective Date hereof and delivered by Seller prior to the Closing. For purposes of this Agreement, “Material Adverse Change” shall mean any material and Purchaseradverse change in the Tenant (including without limitation its financial condition), Lease, or Tenant performance under the Lease, as applicablereasonably determined by Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Gc Net Lease Reit, Inc.)
Conditions Precedent to Closing. (a) The following conditions shall exist at the time of Closing hereunder, and the obligation of Seller Purchaser to consummate the transactions contemplated herein close hereunder shall be expressly conditioned upon and subject to the occurrencesatisfaction (or written waiver by Purchaser) of each such condition:
A. Seller shall have delivered to Purchaser an estoppel certificate dated not more than thirty (30) days prior to Closing (a “Tenant Estoppel”), satisfaction from those tenants listed on Exhibit G attached hereto (the “Required Tenant Estoppels”) and from additional tenants leasing at least eighty percent (80%) of the balance of the rentable area of the Property, substantially in the form of the tenant estoppel certificate attached hereto as Exhibit G-1, dated after the Effective Date, and containing no significant modifications or waiver of: deletions to, or exceptions from, the statements contained therein of the matters required to be confirmed by the Tenant Estoppel. A Tenant Estoppel shall be deemed not delivered if it rightfully (i) timely receipt claims any offsets or defenses in favor of all necessary consents and approvals as the tenant, (ii) lists any landlord defaults, (iii) reflects any tenant rights or landlord obligations not set forth in Paragraph 13(a)(ithe Lease, or (iv) herein; lists any leases or other agreements not delivered to Purchaser. Closing may be extended for up to fifteen (ii15) days to allow Seller to obtain the Tenant Estoppels.
B. The Title Company will be in a position to issue a policy of title insurance to Purchaser in the full amount of the Purchase Price showing good and marketable title vested in the Purchaser, subject only to the Permitted Exceptions.
C. Each of the representations and warranties made by Purchaser hereunder being of the Seller contained in this Agreement shall be true and correct in all material respects respects.
D. Seller shall have materially performed and confirmed in writing complied with all of the terms, conditions and covenants required by this Agreement to be performed and complied with prior to or on the date Closing Date.
E. If the Property is subject to a reciprocal easement agreement or other similar document pursuant to which the Property is bound by common easements, covenants and/or restrictions, Purchaser’s obligations hereunder shall be conditioned upon Purchaser’s receipt of Closingan estoppel certificate in the form attached hereto as Exhibit K, from the association or other party or parties that govern or operate the properties subject to such agreement.
F. If required by law, Seller shall deliver to Purchaser any certificate of occupancy, re-sale certificate, use and occupancy permit or other license, permit or approval necessary to lawfully transfer the Property to Purchaser, and Seller shall make all repairs required to the Property as a condition to the issuance of the same (or provide security to the applicable governing body to secure completion of the same). If any one or more of the conditions set forth above are not satisfied as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder specified for Closing shall have been executed by Seller hereunder, then Purchaser shall, at its option, either (a) waive such condition in writing and Purchasermake full Closing under this Agreement without any adjustment in the Purchase Price, as applicable.
or (b) The obligation of terminate this Agreement, whereupon the Deposit will be paid to the Purchaser to consummate the transactions contemplated herein and Purchaser and Seller shall be subject to thereupon released from all further liability or obligation under the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Agreement. Purchaser shall have obtained all licenses and permits necessary the right to complete the legal transfer to Purchaser of waive some or all of the Properties (other than Cabot Park Village) foregoing conditions as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold determined in its sole and absolute discretion;
(vi) The Properties ; provided, however, that no such waiver shall be effective or binding on Purchaser unless it is in substantially the same condition as they were at the end writing and executed by Purchaser. The foregoing shall not affect Purchaser’s remedies if any of the Study Period, reasonable wear and tear and casualty and taking foregoing conditions are not satisfied as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election a result of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableSeller’s default under this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Broad Street Realty, Inc.)
Conditions Precedent to Closing. Purchaser’s obligation to close the acquisition of the Property pursuant to this Agreement is conditioned on all of the following:
5.1 No material adverse change in the physical condition of the Property shall have occurred since the Effective Date that has not been cured by Seller as of the Closing Date to the satisfaction of Purchaser after reasonable inspection.
5.2 Purchaser shall have obtained any and all necessary or desirable governmental entitlements, approvals and permits for its ownership and continued operation of the Facility.
5.3 Seller has set forth on Exhibit C attached hereto a list of the name, address of each person or lender (atogether with a contact person with phone number and email, loan numbers, principal and accrued interest) The obligation which owns or holds any Monetary Liens that encumber the Property and which must be fully satisfied at Closing, and in the case of the 2006 Lease and the August 18, 2015 Lease, must be terminated at Closing, in both cases, in order for Seller to consummate convey good title to the transactions contemplated herein Property to Purchaser free and clear of all liens and encumbrances and it shall be subject the Seller’s obligation under this Agreement to deliver to Purchaser prior to Closing valid pay-off letters with respect to those Monetary Lines in form and substance satisfactory to Purchaser and the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary Title Company in their reasonable discretion.
5.4 All required consents and approvals for the sale of the Property by Seller shall have been obtained by Seller and evidence thereof shall have been delivered to Purchaser.
5.5 Purchaser shall have received an owner’s title insurance policy subject only to standard exceptions acceptable to Purchaser.
5.6 Purchaser shall have received such independent valuations and appraisals supporting the Purchase Price as set forth it or its ultimate Section 501(c)(3) parent entity has determined in Paragraph 13(a)(i) herein; (ii) the its sole discretion as are necessary or appropriate for this transaction.
5.7 All of Seller’s covenants and obligations contained in this Agreement shall have been performed by Seller as of Closing, and all of Seller’s representations and warranties made by Purchaser hereunder being shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date Effective Date and as of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Global Healthcare Reit, Inc.)
Conditions Precedent to Closing. (a) The obligation of Seller Purchaser to consummate the transactions contemplated herein shall be close under this Agreement is subject to all of the occurrence, satisfaction or waiver of: following:
(i) timely receipt Seller shall not have breached any of all necessary consents and approvals as set forth in Paragraph 13(a)(i) hereinits representations, warranties, or covenants under this Agreement; (ii) the Seller's representations and warranties made by Purchaser hereunder being shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, ; and (iv) all other documents hereunder for Closing Seller shall have been executed complied with all of the obligations required to be performed by Seller and Purchaser, as applicableunder this Agreement at or prior to Closing.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing The Title Company shall be unconditionally prepared to issue an owner's title insurance policy on the date of Closing, ALTA form and with such endorsements as selected by Purchaser in an amount equal to the Purchase Price insuring Purchaser's ownership of the date of Closing;Property subject to no exceptions, except for those Title Objections which Purchaser elects to waive pursuant to Section 4 above.
(iii) Purchaser shall have obtained received all licenses Approvals for the Project on a valid, irrevocable, unqualified and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesunconditioned basis, and of Cabot Park Village as an operating independent living facility. Purchaser agrees such Approvals shall be final and not subject to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;appeal or litigation.
(iv) The Real absence of any material changes in the status of the use, title, occupancy, or physical condition of the Property (unless caused or consented to by Purchaser).
(v) Geotechnical and soil conditions suitable for Purchaser’s intended development of the Personal Property, in compliance with the Brownfields Notice, in form and substance acceptable to Purchaser in its sole and absolute discretion.
(vi) Seller shall have delivered the SEDG Release.
(vii) Seller shall have prepared, delivered, and placed an instrument of record, in substance and form reasonably acceptable to Purchaser, stating that, among other things, the construction timeline set forth in this Agreement shall control in the event of a conflict between this Agreement and Section 5.3 of Declaration of Covenants, Conditions, and Restrictions for Union Square South Elm Development Group as set forth in Exhibit H attached hereto.
(viii) Purchaser’s internal corporate approval of the Property for a new store location.
(b) In the event that any of the conditions precedent set forth in Section 11(a) above have not been fulfilled on the Closing Date, or will not be fulfilled by the Closing Date, whether by way of example and not limitation, due to the rejection of an Approval or to Purchaser's determination in good faith that all such conditions precedent likely will not be satisfied prior to the Closing Date (without taking into account any potential extensions thereof), Purchaser shall not have been materially the right, at its option, to (i) waive the unsatisfied condition(s) precedent and adversely destroyed or damagedproceed to Closing, as defined (ii) terminate this Agreement by delivering written notice to Seller, in ▇▇which event the ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, Money shall have approved in writing the sale of the MHFA Facilities be immediately returned to Purchaser and ElderTrust's assumption Purchaser and Seller shall have no further rights, obligations or liabilities hereunder (except for those that expressly survive termination of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"this Agreement), and any other requirements under or (iii) extend the loan documents in connection with the MHFA Debt shall have been met in order Closing Date for up to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary sixty (60) days in order for Purchaser such condition to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to be satisfied with the end agreement of the Study PeriodSeller which shall not be unduly withheld, without Purchaser may propose the addition of such modifications as additional conditions precedent waiving its right to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end exercise either of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as options set forth in Paragraph 9 hereinclauses (i) oror (ii) above in the event that such condition is not satisfied on or before the extended date of Closing. Notwithstanding the foregoing provision, at in the election event that any of the conditions precedent set forth in Section 11(a) above have not been fulfilled by the date of Closing due to breach or default by Seller, then Purchaser may, in writingaddition to the remedies set forth above, the parties pursue any and all of its rights set forth in Section 16(a) below (and any termination pursuant to (ii) above shall close not prevent Purchaser from exercising any and appropriate financial adjustments shall be made; and
(viiall of its rights set forth in Section 16(b) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablebelow).
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions Precedent to Closing. (a) 10.1 The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
10.1.1 All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects as of the Effective Date and confirmed as of the Closing Date, and Seller shall not have, on or prior to Closing, failed to meet, comply with or perform in writing any material respect any conditions or agreements on Seller's part as required by the date 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 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 the purchase of the Property as of the Due Diligence Expiration Date and Buyer has not received, as of the date of Closing, estoppels from Tenants occupying one hundred percent (iii100%) of the terminationleasable area of the Real Property, concurrent with the then at Closing, of all guaranties related Seller shall also deliver to Buyer a "Seller's Estoppel" in the MHFA Debt, and (iv) all other documents hereunder for Closing shall have form attached hereto as Exhibit I with respect to each such Lease as to which no estoppel from the Tenant has been executed by Seller and Purchaser, as applicablereceived.
(b) 10.2 The obligation obligations of Purchaser Seller pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Seller, be subject to the occurrence, satisfaction or waiver following conditions precedent:
10.2.1 All of the following conditions:
(i) timely receipt representations, warranties and agreements of all necessary consents and approvals as Buyer set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses Effective Date and permits necessary to complete the legal transfer to Purchaser of all as of the Properties (other than Cabot Park Village) as operating assisted living facilitiesClosing Date, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property Buyer shall not have been materially and adversely destroyed on or damagedprior to closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer's part as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;required by the terms of this Agreement.
(▇) The Massachusetts Housing Finance Agency ("MHFA") and 10.2.2 Seller's obligation to sell the Department Property is subject to the condition precedent that approval of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale is obtained from the board of the MHFA Facilities directors of G REIT, Inc., which shall be deemed to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met obtained (and this condition shall in order to allow such case be deemed satisfied) unless Seller advises Buyer that the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, has been disapproved no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising business days after the Effective Date. If any such condition is not fully satisfied by the Closing (or such earlier applicable date hereof as set forth above with respect to titleany specific condition), surveyBuyer shall so notify Seller and may terminate this Agreement by written notice to Seller whereupon this Agreement may be canceled, zoning and environmental mattersthe Deposit shall be returned to Buyer and, costing 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 aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, conditions precedent set forth in which event, at Purchaser's electionthis Section, Seller either may, within five (5) days of receipt of Buyer's notice agree to satisfy the condition by written notice to Buyer, and Buyer shall remedy thereupon be obligated to close the same prior transaction provided Seller so satisfies such condition. If Seller fails to Closing (which, if agree to cure or fails to cure such remedy cannot be cured prior to condition by the original Closing Date, this Agreement shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at canceled and the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments Deposit shall be made; and
(vii) All other documents required hereunder for Closing returned to Buyer and neither party shall have been executed and delivered by Seller and Purchaser, as applicableany continuing obligations hereunder.
Appears in 1 contract
Conditions Precedent to Closing. (a) The obligation All obligations of Seller to consummate Fitek, Westminster, and the transactions contemplated herein shall be Westminster Shareholders under this Agreement are subject to the occurrencefulfillment, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) by the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closingparty or parties to be benefited, as of the date of Closing, (iii) the termination, concurrent with prior to or at the Closing, of all guaranties related conditions elsewhere herein set forth, including, but not limited to, receipt by the appropriate party of all deliveries required by Section 20 herein, and fulfillment, prior to the MHFA DebtClosing, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver each of the following conditions:
(ia) timely receipt The respective representations, warranties and covenants of ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Shareholders, and of Fitek contained in this Agreement shall be true at the time of Closing as though such representations, warranties and covenants were made at such time.
(b) The other parties shall have performed and complied with all agreements and conditions required by this Agreement to be performed or complied with by each prior to or at the Closing.
(c) Each Westminster Shareholder acquiring Exchange Stock will be required, at Closing, to submit an agreement, substantially in the form of Exhibit B, confirming that all the Exchange Stock received will be acquired for investment and not with a view to, or for sale in connection with, any distribution thereof, and agreeing not to transfer any of the Exchange Stock for a period of one year from the Closing Date, except to those persons approved by legal counsel to Fitek as falling within an exemption from registration under the Act and any applicable state securities laws, which transfers do not constitute a public distribution of securities, and in which the transferees execute an investment letter in form and substance satisfactory to counsel for Fitek. The foregoing provision shall not prohibit the registration of those shares at any time following the Closing. Each Westminster Shareholder acquiring Exchange Stock will be required to transfer to Fitek at the Closing his or her respective Westminster Shares, free and clear of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;liens, mortgages, pledges, encumbrances or changes, whether disclosed or undisclosed.
(iid) Subject to the representations terms of this Agreement, Fitek, ▇▇▇▇▇▇▇ and warranties the ▇▇▇▇▇▇▇ Shareholders shall substantially simultaneously herewith have already closed the transactions among them contemplated by this Agreement.
(e) Each party shall have received favorable opinions from each party's counsel on such matters in connection with the transactions contemplated by this Agreement as are reasonable, including an opinion from counsel for Westminster that the exchange of shares contemplated, if consummated, will not in any manner violate corporate or securities laws of any states where any Westminster Shareholder resides.
(f) Each party shall have satisfied itself that since the date of this Agreement the business of the other parties has been conducted in the ordinary course except to the extent otherwise contemplated by this Agreement. In addition, each party shall have satisfied itself that no withdrawals of cash or other assets have been made and no indebtedness has been incurred since the date of this Agreement, except with respect to services rendered or expenses incurred in connection with the consummation of the transactions contemplated by Seller hereunder being true and correct this Agreement, unless said withdrawals or indebtedness were either contemplated by the terms of this Agreement or subsequently consented to in writing by the parties or were incurred in the ordinary course of business by Westminster, ▇▇▇▇▇▇▇ or Fitek.
(g) Each party covenants that, to the best of its knowledge, it has complied in all material respects with all applicable laws, orders and confirmed regulations of federal, state, municipal and/or other governments and/or any instrumentality thereof, domestic or foreign, applicable to their assets, to the business conducted by them and to the transactions contemplated by this Agreement.
(h) Fitek shall have provided to Westminster all audited and unaudited financial statements, including but not limited to Fitek's audited 12 month statements for the year ended August 31, 1998, and first quarter and second quarter statements as at November 30, 1998 and February 28, 1999, respectively. All audited and unaudited financial statements shall be prepared in writing on accordance with generally accepted accounting principles and Regulation S-X, and the audited statements certified as such by independent accountants of Fitek.
(i) Westminster shall have provided to Fitek and ▇▇▇▇▇▇▇ audited consolidated financial statements of Westminster for the three most recently completed fiscal years, prepared in accordance with generally accepted accounting principles, together with consolidated unaudited financial statements in the same form for the period from the end of the most recently ended fiscal year to a date within thirty days of the Closing. Such unaudited financial statements of Westminster shall have included the following schedules: Schedule of Assets; Schedule of Notes Payable; Schedule of Accounts Payable; and Schedule of Notes Receivable or, in their absence, an affirmation that such items do not exist. Westminster shall also provide, as of a date within ten days of Closing, an update of any material change in the aforementioned schedules.
(j) Each of Fitek, ▇▇▇▇▇▇▇ and Westminster shall have granted to one another (acting through its management personnel, counsel, accountants or other representatives designated by it) full opportunity to examine its books and records, properties, plants and equipment, proprietary rights and other instruments, rights and papers of all kinds in accordance with Sections 6, 8 and 22 hereof and each party shall be satisfied to proceed with the transactions contemplated by this Agreement upon completion of such examination and investigation.
(k) Effective as of the Closing Date, all of the members of Fitek's current board of directors and each and every person serving as an officer of Fitek shall resign their respective positions and/or offices by tendering written resignations. Immediately prior to said resignations, Fitek's board of directors shall appoint those persons listed on Exhibit G as members of Fitek's new board and/or as officers of Fitek, with such appointments to correspond with the position or office designated on Exhibit G and with such appointments to be effective as of the Closing. The parties hereto agree that the current board may designate, at any time within twelve months following the Closing, one person to serve as an advisor to the Board of Fitek for a period of one year following Closing.
(l) Each party shall have satisfied itself that all transactions contemplated by this Agreement, including those contemplated by the exhibits attached hereto, shall be legal and binding under applicable statutory and case law of the State of Delaware or New York, as the case may be, including, but not limited to subject state's securities laws and all other applicable state securities laws, and the transactions contemplated by this Agreement shall have been approved by the New York Stock Exchange.
(m) Each of the Westminster Shareholders shall have tendered his or her stock certificate or certificates to Fitek, endorsed in blank, to permit the transfer of the Westminster's Stock at Closing as contemplated by Section 18(b).
(n) Fitek shall have allocated to Westminster at least 60,000 stock options under the Fitek employee stock option plan to be adopted by Fitek prior to Closing, which options shall be allocated by the Board of Directors of Westminster in its sole discretion and shall be subject to terms and conditions established by the Board of Directors of Westminster consistent with the requirements of the plan, and shall have an exercise price of $1.25 per share. Such plan shall have a total plan allocation of no more than 2,900,000 shares, of which approximately 2,400,000 shares have already been granted to or reserved for employees of ▇▇▇▇▇▇▇.
(o) Westminster shall have capital (as defined in Rule 15c3-1 of the ▇▇▇▇ ▇▇▇) of at least $600,000 at Closing, and shall not voluntarily take any action to reduce Westminster's capital following Closing. Such capital may be in the form of subordinated debt having a maturity of at least three years, so long as such subordinated debt meets all of the criteria for counting such debt as capital under Rule 15c3-1. The holders of such debt may, but need not be, the three current Westminster Shareholders, who shall retain nominal shareholdings in Westminster for purposes of making such loans good capital for SEC and NYSE regulatory purposes. ▇▇▇▇▇▇▇ and Fitek acknowledge and agree that as of the date of this Agreement, Westminster's capital is substantially in excess of such amount, and all capital in excess of $600,000 at Closing may be withdrawn from Westminster prior to Closing;
(iii) Purchaser , on such terms as may be arranged by the Westminster Shareholders. Westminster shall have obtained all licenses and permits necessary use best efforts to complete assist ▇▇▇▇▇▇▇ in the legal transfer to Purchaser placement of all at least $600,000 principal amount of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined 8% convertible subordinated notes in ▇▇▇▇▇▇▇▇▇ ▇▇ currently being privately placed by ▇▇▇▇▇▇▇▇▇▇▇;, but the completion of such sale shall not be a condition precedent hereto.
(▇p) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, corporate parties hereto shall have approved in writing entered into the sale following agreements effective the date of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;Closing:
(vii) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing Common Sourcing Agreement in the aggregate less than One Hundred Thousand Dollars form annexed hereto as Exhibit O.
($100,000ii) to remedythe Occupancy Agreement in the form annexed hereto as Exhibit P, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(viiiii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, the Federal Income Tax Allocation Agreement in the form annexed hereto as applicable.Exhibit Q.
Appears in 1 contract
Sources: Plan and Agreement of Reorganization (Laidlaw Global Corp)
Conditions Precedent to Closing. (a) The following shall be conditions precedent to Purchaser’s obligation of Seller to consummate the transactions purchase and sale transaction contemplated herein shall be subject to (the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and “Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:’s Conditions Precedent”):
(i) timely receipt Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 5, Section 16(a), Section 16(b), Section 17 or any other applicable section of all necessary consents and approvals as set forth this Agreement within the time periods described in Paragraph 14(a)(i) herein;said sections.
(ii) Title Company shall be irrevocably committed to issue, at the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as the Approved Title Policy, subject to Purchaser’s payment of the date of Closing;title premiums for which Purchaser is responsible hereunder.
(iii) Purchaser shall have obtained all licenses 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 permits necessary to complete not disclosing the legal transfer to Purchaser 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 Properties 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 (other than Cabot Park Village3) as operating assisted living facilities, and business days of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all Purchaser’s receipt of such licenses and permits and to keep Seller advised regarding estoppel certificate of its disapproval of such efforts and progress in connection therewith;
(iv) The Real Property estoppel certificate and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in basis of such disapproval. A “Major Tenant” means each of the following tenants at the Property: ▇▇▇▇▇▇▇▇▇ ▇▇ , Point Group, Stratford Land Management, Caiman Energy and ▇▇▇▇▇▇, Hall and ▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") . 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 Department forms of Housing estoppel certificates from the tenants, which were based on the form of estoppel certificate attached hereto as Exhibit D and Urban Development ("HUD")Seller has remitted, if necessaryor caused to be remitted, shall have the estoppel certificates, as approved in writing by Purchaser, to all the sale tenants of the MHFA Facilities to Property for signature. Such estoppel certificates prepared by Seller and approved by Purchaser and ElderTrust's assumption of all of as provided above are referred to, collectively, as “Approved Estoppels”. Notwithstanding the Seller's then existing debts and obligations (without material modification except as foregoing, in the event the condition described in this Section 9(a)(iii) shall not have been satisfied, either Seller or Purchaser may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect elect by notice to the MHFA Facilities other to extend the Closing for a period not to exceed thirty (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met 30) days in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve satisfy such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablecondition.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Conditions Precedent to Closing. (a) 6.1 The obligation of Seller the Purchaser to consummate complete the transactions contemplated herein purchase of the Shares shall be subject to the occurrenceVendor providing the Purchaser with the following on or before Closing:
(a) A certified copy of resolutions of the Directors of the Company authorizing the transfer of the Shares from the Vendors to the Purchaser, satisfaction or waiver of: the registration of the Shares in the name of the Purchaser and the issuance of a share certificate in the name of the Purchaser;
(ib) timely receipt Share certificates representing the Shares issued in the name of all necessary consents 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 approvals as minute books of the Company.
6.2 The conditions precedent set forth in Paragraph 13(a)(isubparagraph 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) hereinA 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
(iib) 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 by Purchaser hereunder in or pursuant to this Agreement being true and correct in all material respects at Closing and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the same effect as if made at and as Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.
Appears in 1 contract
Conditions Precedent to Closing. (a) The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
9.1. All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date hereof and as of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA DebtClosing 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.
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 satisfied at closing.
9.3. Unless Seller receives notice from Buyer at least thirty (iv30) all other documents hereunder for Closing days prior to closing, effective as of closing, the management agreement affecting the Property shall have been executed be terminated by Seller and Purchaser, any and all termination fees incurred as applicablea result thereof shall be the sole obligation of Seller.
(b) The obligation of Purchaser 9.4. 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 consummate Seller, whereupon the transactions contemplated herein Due Diligence Items will be promptly returned to Seller, the Refundable Deposit shall be subject paid to Buyer, the occurrenceNonrefundable Deposit shall be retained by Seller and, satisfaction or waiver thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder, except as otherwise expressly provided herein.
9.6. If Buyer notifies Seller of a failure to satisfy the following conditions:
(i) timely receipt of all necessary consents and approvals as conditions precedent set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by this paragraph, Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closingmay, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than within five (5) Business Days prior days of receipt of such notices agree to satisfy the end 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, 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 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 Study PeriodProperty is part of a tax-deferred exchange pursuant to Section 1031 of the Code, Purchaser may propose the addition of such modifications as additional conditions it is a condition precedent to the Closing hereunderclosing 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 its accommodator. In Seller agrees to execute such eventdocuments or instruments as may be necessary or appropriate to evidence such exchange, no later than two (2) Business Days after its receipt of provided that Seller's cooperation in such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties regard shall be in substantially the same condition as they were at the end of the Study Periodno additional cost, reasonable wear and tear and casualty and taking as permitted herein exceptedexpense, or liability whatsoever to Seller, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing that no additional delays in the aggregate less than One Hundred Thousand Dollars ($100,000) scheduled Close of Escrow are incurred unless mutually agreed upon by all parties to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablethis Agreement.
Appears in 1 contract
Conditions Precedent to Closing. (a) The obligation obligations of Seller Buyer pursuant to consummate the transactions contemplated herein this Agreement shall be subject to the occurrence, satisfaction or waiver of: following conditions precedent to Closing (i) timely receipt any of all necessary consents and approvals as set forth which may be waived in Paragraph 13(a)(i) herein; (ii) writing by Buyer in its sole discretion):
9.1. All of the representations and warranties made by Purchaser hereunder being of Seller set forth in Section 7.1 shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of and all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt other representations, warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the 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;.
9.3. The Existing Management Agreement affecting the Property shall be terminated by Seller and any and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.4. Seller shall have 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 receipt of a copy of an executed Tenant Estoppel Certificate of its approval or disapproval and the basis of such disapproval, if disapproved. If Buyer disapproves of a Tenant Estoppel Certificate executed by a Major Tenant because of a material, 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 Agreement shall terminate, Buyer shall be entitled to a refund of the Deposit and all interest earned thereon, 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) Elsevier, (iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesUS Navy, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property Barrister Executive Services, (v) First Allied Security, (vi) California Bank & Trust and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in (vii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (d/b/a Lerach ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇;
(▇) ▇ LLP). The Massachusetts Housing Finance Agency ("MHFA") Leases between Landlord and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale each of the MHFA Facilities Major Tenants are hereinafter referred to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA DebtMAJOR LEASES."), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.
Appears in 1 contract
Conditions Precedent to Closing. (a) 10.1. The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
10.1.1. All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of 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 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 accordance with their respective Leases, from Tenants representing seventy percent (iii70%) of the terminationsquare feet which are leased and occupied by Tenants as of the Effective Date. Estoppel certificates may be on the form required by the applicable Lease or the form attached hereto as Exhibit D. Unless they disclose material, concurrent adverse matters inconsistent with their respective Leases, estoppel certificates shall be deemed to satisfy this condition precedent. With respect to Tenants who are governmental entities, if any, estoppel certificates in the standard form typically provided by such governmental entity shall satisfy this condition precedent. 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 disapproves of an estoppel certificate because of a material, adverse matter disclosed therein which is inconsistent with its Lease, and Seller is unable to obtain a reasonably acceptable estoppel certificate prior to the Closing, this Agreement shall terminate upon Buyer’s written notice to Seller and return of all guaranties related the Due Diligence Items, Buyer shall be entitled to a refund of the Deposit and neither party shall have any further obligation to the MHFA Debtother except Buyer’s indemnification obligations under Section 5. Notwithstanding anything to the contrary in this Section, and (iv) all other documents hereunder for Closing Seller shall have been executed the right, in Seller’s sole and absolute discretion, but not the obligation, 19 - AGREEMENT FOR PURCHASE AND SALE to cure or otherwise satisfy the basis for Buyer’s disapproval of an estoppel certificate by Seller and Purchaser, as applicablethe payment of money to a particular Tenant.
10.1.4. Buyer shall have obtained on or before the 15th day following the Effective Date (bthe “Financing Contingency Period”) a commitment acceptable to Buyer to finance the purchase of the Property. If Buyer fails to give to Seller during this period written notice that this condition has been satisfied or waived (the “Financing Contingency Removal Notice”), then this Agreement shall automatically terminate at the expiration of this period and the Deposit, less one-half (1/2) of any escrow cancellation fee, shall be returned to Buyer upon return of the Due Diligence Items; Buyer’s obligations set forth in Section 5 shall survive such termination.
10.2. The obligation obligations of Purchaser to consummate Seller under this Agreement shall, at the transactions contemplated herein shall option of Seller, be subject to the occurrence, satisfaction or waiver following conditions precedent:
10.2.1. All of the following conditions:
(i) timely receipt representations, warranties and agreements of all necessary consents and approvals as Buyer set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesEffective Date, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property Buyer shall not have been materially and adversely destroyed on or damagedprior to Closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer’s part as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;required by the terms of this Agreement.
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, 10.2.2. Seller shall have approved in writing received approval of the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of from all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not entities comprising Seller no later than five (5) Business Days business days after the Effective Date.
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 given prior to the end Closing) whereupon this Agreement may be canceled, and upon return of the Study PeriodDue Diligence Items, Purchaser may propose the addition 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 such modifications as additional a failure to satisfy the conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 hereinSection 10.1, Seller may, within five (5) ordays of receipt of Buyer’s notice agree to satisfy the condition by written notice to Buyer, at and Buyer shall thereupon be obligated to close the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by transaction contemplated hereby provided Seller and Purchaser, as applicableso satisfies such condition.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Conditions Precedent to Closing. (a) 10.1 The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
10.1.1 All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date 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 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.
10.1.3 Seller shall, no less than four (iii4) the termination, concurrent with days prior to the Closing, deliver to Buyer estoppel certificates for tenants representing seventy-five percent (75%) of all guaranties related the square feet which are leased by tenants as of the Effective Date (“Estoppel Threshold”), which shall include Tenant Estoppels (as defined herein) for Titan, St. Paul’s and Verizon or their respective successors or assigns. Seller shall, pre-closing, cooperate with Buyer in obtaining, but shall not be obligated to obtain, any subordination, non-disturbance and attornment agreement requested by Buyer’s Lender, in the form of Exhibit J attached hereto and incorporated herein by this reference, for any lease that does not contain automatic subordination language. All estoppel certificates shall be substantially in the form which such tenants are required to provide pursuant to the MHFA Debtterms of each tenant’s respective lease, or, at Seller’s option, in the form of Exhibit G attached hereto and incorporated herein by this reference (“Tenant Estoppel”). Seller, in its sole discretion, will add commercially reasonable content to the Tenant Estoppel, as requested, to satisfy Buyer’s lender. For purposes of the foregoing sentence, the determination of “commercially reasonable content” shall be determined by Seller in its sole discretion. Seller shall have no liability or responsibility for the information set forth in the estoppel certificates delivered by the tenants. Estoppel certificates shall be deemed to satisfy this condition precedent unless they disclose materially adverse matters and/or are inconsistent with the documents delivered pursuant to Section 4.1.10. Buyer shall notify Seller within four (4) 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 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, but in no event later than fifteen (iv15) all other documents hereunder for Closing days after Buyer’s disapproval of same, this Agreement shall terminate, Buyer shall receive a refund of the Deposit and neither party shall have been executed by Seller and Purchaser, as applicableany further obligation to the other except Buyer’s indemnification obligations under Paragraph 5.
(b) 10.2 The obligation obligations of Purchaser to consummate Seller under this Agreement shall, at the transactions contemplated herein shall option of Seller, be subject to the occurrence, satisfaction or waiver following conditions precedent:
10.2.1 All of the following conditions:
(i) timely receipt representations, warranties and agreements of all necessary consents and approvals as Buyer set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesEffective Date, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed on or damagedprior to closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer’s part as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;required by the terms of this Agreement.
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, 10.2.2 Seller shall have approved in writing the sale received approval of the MHFA Facilities to Purchaser and ElderTrust's assumption of Sale from all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then entities comprising Seller not later than five twenty (520) Business Days prior to business days following the end of the Study Period, Purchaser may propose the addition Effective Date. Upon receipt of such modifications as additional conditions precedent to the Closing hereunderapproval, Seller shall immediately notify Buyer of such approval in writing (“Seller’s 10.2.2 Approval”). In the event Seller shall not receive such eventapproval, no later than Seller shall provide Buyer with written notice of such non-approval (“Seller’s 10.2.2 Notice”), terminate the Agreement, and, notwithstanding Section 2.1.1 of this Agreement, return the Deposit to Buyer within two (2) Business Days business days after its Seller’s 10.
2.2 Notice, and neither party shall have any further obligations to the other hereunder except Buyer’s indemnification under Section 5. 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 whereupon this Agreement may be canceled, upon return of the Due Diligence Items and, thereafter, neither Seller nor Buyer shall have any continuing obligations hereunder; provided, however, that if Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in Section 10.1, Seller may, within ten (10) days of receipt of such proposal, Seller shall notify Purchaser whether Seller will Buyer’s notice agree to any or all of such additional conditions precedent satisfy the condition by written notice to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein exceptedBuyer, and also excepting conditions first arising after Buyer shall thereupon be obligated to close the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, transaction provided Seller either shall remedy the same prior to so satisfies such condition. Closing (which, if such remedy cannot may be cured prior to the original Closing Date, shall be extended delayed by Seller for up to ninety ten (9010) days in connection therewith as after Seller’s receipt of Buyer’s notice to allow Seller time to satisfy such conditions. If Seller fails to timely cure any condition set forth in Paragraph 9 herein) orSection 10.1, at the election this Agreement shall be canceled, Buyer shall receive a refund of the Purchaser in writing, the parties shall close Deposit and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing neither party shall have been executed and delivered by Seller and Purchaser, as applicableany further liability hereunder.
Appears in 1 contract
Conditions Precedent to Closing. (a) The obligation Closing of Seller to consummate the transactions contemplated herein purchase of the Property hereunder shall be subject to the occurrence, and hereby is conditioned upon satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver each of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities conditions (collectively, the "MHFA DebtConditions Precedent")):
5.1 Seller shall have performed, in all material respects, the obligations required to be performed by Seller prior to Closing under this Agreement. Prior to Closing, Seller shall use good faith, diligent efforts to perform its pre-Closing obligations under this Agreement.
5.2 Subject to the last paragraph of Section 9.1, the representations and any other requirements warranties of Seller as set forth in Article 9 hereof shall be, in all material respects, true and complete.
5.3 Purchaser shall have received on or before the Closing Date an estoppel certificate in substantially the form attached hereto as EXHIBIT D from the tenant under the loan documents in connection Tenant Lease, which certificate shall disclose no material facts which are contradictory to those facts previously disclosed to Purchaser with respect to the MHFA Debt Tenant Lease. Seller shall have been met use its reasonable and diligent efforts to obtain the estoppel certificate from the tenant under the Tenant Lease; provided, however, Seller shall not be required to expend monies or make concessions or institute litigation in order to allow obtain such estoppel certificate. In exercising its reasonable discretion concerning the sale acceptability of the MHFA Facilities and estoppel certificate on a form other than that prescribed by EXHIBIT D, subject to the assumption provisions of this paragraph, Purchaser will accept an alternate form which complies with Section 21.7 of the MHFA Debt by ElderTrustTenant Lease.
5.4 The tenant under the Tenant Lease and Seller shall have executed a Second Amendment to Bondable Net Lease Agreement which sets forth the actual amount of the Annual Basic Rent under the Tenant Lease for the first five years of the term of the Tenant Lease and sets forth the amount of the Landlord's Project Costs (as defined in the Tenant Lease) for the shell building improvements.
5.5 The tenant under the Tenant Lease shall have executed in writing, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications either in an amendment to the documents Tenant Lease, in connection with the MHFA Debt will be reasonably necessary estoppel certificate referred to in order for Purchaser to achieve such approval Section 5.3 or in some other written certification or agreement, a statement that the tenant acknowledges that, as provided in Section 6.7 of this Agreement, the warranties, rights and meet such requirements, then not later than five (5) Business Days prior obligations of the landlord under the Work Letter attached as Exhibit "B-1" to the end Tenant Lease will remain the warranties, rights and obligations of Seller and that Purchaser will not assume or be assigned such warranties, rights and obligations. If any of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to Conditions Precedent have not been satisfied on or before the Closing hereunder. In such eventDate, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller this Agreement may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which eventcanceled by Purchaser, at Purchaser's electionoption, by written notice from Purchaser to Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior and to the original Escrow Agent given on or before the Closing Date. Upon such cancellation, the Deposit shall be extended for up refunded and returned to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) orPurchaser. Purchaser shall have the right to unilaterally waive any Conditions Precedent by written notice to Seller, at the election of the and Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall deemed to have been executed and delivered by Seller and Purchaser, as applicablewaived any unsatisfied Conditions Precedent if Purchaser acquires the Property.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Stratford American Corp)
Conditions Precedent to Closing. (a) 10.1 The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
10.1.1 All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects as of the Effective Date, and confirmed Seller shall not have on or prior to Closing, failed to meet, comply with or perform in writing 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 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.
10.1.3 Seller shall have obtained and delivered to Buyer estoppel certificates, in accordance with their respective Leases, from tenants representing seventy percent of the square feet which are leased and occupied by tenants as of the Effective Date. 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 executed estoppel certificate of its approval or disapproval and the basis of such disapproval, if disapproved. 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, 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 Paragraph 5.
10.1.4 Seller shall have provided and Buyer shall have received an executed copy of the lease agreement between Seller and the State of Oregon as further described in Section 10.1.5 of this Agreement.
10.1.5 Prior to the Closing, Seller and the State of Oregon shall finalize and execute a lease agreement, pursuant to which the State of Oregon (as tenant) shall lease from Seller (as landlord), a portion of the existing space. The lease agreement shall be in a form reasonably acceptable to Seller, Buyer and the State of Oregon. Beginning on the date of Closing and continuing until the State of Oregon begins paying unabated net rent, Buyer shall receive a credit on the date of Closing, as in an amount equal to all rent concessions which shall accrue between Closing and December 31, 2007 (inclusive), under the State of Oregon lease agreement, assuming a rental rate of Eighty-One Thousand One Hundred Eighty-Five and 97/100 Dollars ($81,185.97) per month, pro rated for the date actual number of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, days in such period. The lease agreement by and (iv) all other documents hereunder for Closing shall have been executed by between Seller and Purchaser, the State or Oregon shall be completed in such a way as applicable.to properly encompass the following specific terms and conditions:
(a) Total rent due from the State of Oregon shall be at the rate of at least Twenty and 13/100 Dollars per square foot per month ($20.13/sf) with annual escalations; and
(b) The obligation leased premises shall consist of Purchaser to consummate approximately 48,397 square feet in the transactions contemplated herein shall portion of the Property commonly known as Greystone III.
10.2 The obligations of Seller under this Agreement shall, at the option of Seller, be subject to the occurrence, satisfaction or waiver following conditions precedent:
10.2.1 All of the following conditions:
(i) timely receipt representations, warranties and agreements of all necessary consents and approvals as Buyer set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being this Agreement shall be true and correct in all material respects as of the Effective Date, and confirmed Buyer shall not have on or prior to closing, failed to meet, comply with or perform in writing 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 received approval of the sale from the investment committee of NNN Realty Advisors, Inc., a Delaware corporation, no later than fifteen business days after full execution of this Agreement.
10.2.3 Seller shall have received an acceptable Fairness opinion as to the sales price from a third party. If any such condition is not fully satisfied by closing, the party is whose favor the condition runs shall notify the other party and may terminate this Agreement by written notice 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; provided, however, that 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 date of Closing, as of this Agreement shall be canceled and the date of Closing;
(iii) Purchaser Deposit shall be returned to Buyer and neither party shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing further liability hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Conditions Precedent to Closing. 7.1 The following shall be conditions precedent to Purchaser’s obligation to consummate the purchase and sale transaction contemplated herein (the “Purchaser’s Conditions Precedent”):
(a) The obligation of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents representations and approvals as warranties set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being Section 4 shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date Closing Date except for breaches thereof which do not in the aggregate have a material adverse effect on the value of Closingthe Real Property or Seller Subsidiary Interest, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debteach taken as a whole, and (iv) all other documents hereunder for Closing each Seller shall have been executed duly and substantially performed each and every material covenant, undertaking and agreement to be performed by Seller Sellers under this Agreement, including the delivery of the documents described in Sections 9.1 and Purchaser, as applicable9.2 hereof.
(b) The Title Company shall be unconditionally prepared and irrevocably committed to issue ALTA extended coverage owner’s policies of title insurance (the “Title Policies”) insuring the interest of each Applicable Seller Subsidiary Entity and Purchaser, as successor by merger to such Applicable Seller Subsidiary Entity, in each Applicable Real Property, dated the Closing Date, with an aggregate liability for each policy of title insurance in the amount of the Purchase Price for the Applicable Subsidiary Entity Interests of the Applicable Seller Subsidiary Entity owning the Applicable Property, in the forms, containing such endorsements, and subject only to such exceptions as have been reasonably approved by Sellers, Purchaser and Purchaser’s Lender.
(c) With respect to the Boulder Property, Purchaser shall have received at least seven (7) days prior to the Closing, (i) an executed Ground Lessor Consent and Estoppel Certificate from the lessor under the Boulder Ground Lease substantially in the form of Exhibit J-1 attached hereto (with such changes thereto reasonably approved by Purchaser and Purchaser’s initial lender), dated no more than thirty (30) days prior to the Closing (the “Ground Lessor Estoppel Certificate”) and (ii) an executed Fee Mortgagee Estoppel Certificate from any mortgagee of fee title to the Boulder Ground Leased Land substantially in the form of Exhibit J-2 attached hereto (with such changes thereto reasonably approved by Purchaser and Purchaser’s initial lender), dated no more than thirty (30) days prior to the Closing (the “Fee Mortgagee Estoppel Certificate”).
(d) Each Seller shall have formed its Applicable Seller Subsidiary Entity and transferred its Applicable Property to its Applicable Seller Subsidiary Entity in the manner required under Section 2.2 above.
(e) Concurrently or substantially concurrently with the Closing (i) the Merger (as defined in the Merger Agreement) shall be consummated, (ii) SCI shall have entered into the Master Lease, and (iii) SCI and the Sellers shall have entered into the Subleases. If any of the foregoing Purchaser’s Conditions Precedent are not satisfied with respect to a particular Property or Subsidiary Entity Interests, Purchaser shall have the right at its sole election either to waive the condition in question and proceed with the purchase of such Subsidiary Entity Interests pursuant to all of the other terms of this Agreement or, in the alternative, to terminate this Agreement with respect to such Subsidiary Entity Interests or in its entirety. In the event that Purchaser elects to terminate this Agreement with respect to such Subsidiary Entity Interests as provided in the foregoing sentence, this Agreement shall become null and void without further obligation on the part of Purchaser and Seller of such Subsidiary Entity Interests with respect to such Subsidiary Entity Interests. In the event Purchaser elects to terminate this Agreement in its entirety, this Agreement shall become null and void without further obligation on the part of Purchaser and Sellers.
7.2 The obligation of Purchaser each Seller to consummate the transactions contemplated herein shall be subject hereunder to occur on the occurrence, satisfaction or waiver Closing Date are each conditioned on the fulfillment of the following conditions(“Sellers’ Conditions Precedent”) on and as of the Closing Date:
(a) The truth, in all material respects, of each and every representation and warranty made by Purchaser and the due performance of each and every material covenant, undertaking and agreement to be performed by Purchaser under this Agreement (including, but not limited to, the delivery by Purchaser of the items, and the making of the payments, described in Section 10 below).
(b) Concurrently or substantially concurrently with the Closing (i) timely receipt the Merger (as defined in the Merger Agreement) shall be consummated and (ii) Purchaser shall have entered into the Master Lease.
(c) The Title Company shall be unconditionally prepared and irrevocably committed to issue ALTA extended coverage leasehold owner’s policies of all necessary consents title insurance insuring SCI’s leasehold estate under the Master Lease and approvals each Seller’s leasehold estate under the Sublease for the Applicable Property, dated the day and time of the Closing, with an aggregate liability for each policy of title insurance in the amount of the Purchase Price for the Applicable Property (or such other amount designated by such Seller), in forms approved by Sellers, and subject only to such exceptions as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as Title Policies. If any of the date foregoing Sellers’ Conditions Precedent are not satisfied with respect to a particular Property or Subsidiary Entity Interests, the Seller of Closing;
(iii) Purchaser such Subsidiary Entity Interests shall have obtained all licenses the right at its sole election either to waive the condition in question and permits necessary proceed with the sale of such Subsidiary Entity Interests pursuant to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesterms of this Agreement or, and of Cabot Park Village as an operating independent living facility. Purchaser agrees in the alternative, to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA terminate this Agreement with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents such Subsidiary Entity Interests or in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunderits entirety. In the event that such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree elects to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof terminate this Agreement with respect to title, survey, zoning and environmental matters, costing such Subsidiary Entity Interests as provided in the aggregate less than One Hundred Thousand Dollars ($100,000) foregoing sentence, this Agreement shall become null and void without further obligation on the part of Purchaser and such Seller with respect to remedysuch Subsidiary Entity Interests. In the event any Seller elects to terminate this Agreement in its entirety, this Agreement shall become null and void without further obligation on the part of Purchaser and Sellers.
7.3 Notwithstanding anything to the contrary contained herein, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior event that the Merger Agreement is terminated pursuant to the original Closing Dateterms thereof, this Agreement shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at automatically terminate and become null and void without further obligation on the election part of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableSellers.
Appears in 1 contract
Conditions Precedent to Closing. (a) The obligation closing of Seller to consummate the transactions contemplated herein shall Transaction will be subject to the occurrencesatisfaction of the following conditions precedent (in addition to any conditions precedent identified in the Formal Agreement (as that term is hereinafter defined)) (the “Conditions Precedent”): The parties shall have agreed upon the terms and conditions of a formal agreement in respect of the Transaction (the “Formal Agreement”), satisfaction or waiver of: which Formal Agreement shall memorialize the provisions of this letter agreement and include industry-standard terms and conditions in respect of the Transaction. For greater certainty, the Formal Agreement will contain representations and warranties customary to transactions like the Transaction, including, without limitation, representations and warranties by the Company (i) timely receipt as to the accuracy and completeness of the Company's internally generated financial statements, dated as of September 30, 2018, (ii) disclosure of all necessary the Company's material contracts, commitments and liabilities, direct or contingent; (iii) the physical condition, suitability, ownership and absence of liens, claims and other adverse interests with respect to the Company's assets; (iv) issuance and status of the Purchased Shares; (e) the absence of liabilities with respect to the Company and liabilities incurred in the ordinary course of business since the date of latest audited financial statements; (f) the absence of a material adverse change in the condition (financial or otherwise), business, properties, assets or prospects of the Company; (g) the absence of pending or threatened litigation, claims, investigations or other matters affecting the Transaction; (h) the Company's compliance with laws and regulations applicable to its business and obtaining all licenses and permits required for its business; and (i) the due incorporation, organization, valid existence, good standing and capitalization of the Company. The parties hereby covenant and agree to diligently pursue good faith negotiation of the Formal Agreement. Each of the Purchaser and the Company shall be satisfied, in its sole discretion, with the results of its due diligence investigations in respect of the Transaction. The holders of the Company’s Series A Preferred Stock (the “Preferred A Holders”) and the holders of the Company’s common stock shall have executed and delivered to and in favor of the Company and the Purchaser any and all consents to, and approvals waivers in respect of, the Transaction as set forth in Paragraph 13(a)(imandated the terms and conditions of (i) herein; the Amended and Restated Certificate of Incorporation of the Company (the “Certificate of Incorporation”), (ii) the representations August 29, 2018 Series A Convertible Preferred Stock Purchase Agreement between the Company and warranties made by Purchaser hereunder being true the Preferred A Holders (the “Preferred A SPA”), and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the terminationAugust 29, concurrent with 2018 Investor Rights Agreement between the ClosingCompany, the Preferred A Holders, and the holders of all guaranties related the Company’s issued and outstanding common stock (the “Rights Agreement”), such consent to include, inter alia, (x) consent to the MHFA Debtcomposition of the Board (as that term is hereinafter defined), (y) consent to the issuance of the Purchased Shares to the Purchaser, and (ivz) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or a waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as preemptive purchase rights set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date Rights Agreement. The boards of Closing, as directors of each of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, Company shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableTransaction.
Appears in 1 contract
Sources: Binding Letter of Intent (Generex Biotechnology Corp)
Conditions Precedent to Closing. (a) The following shall be conditions precedent to Purchaser's obligation of Seller to consummate the transactions purchase and sale transaction contemplated herein shall be subject to (the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and "Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:'s Conditions Precedent"):
(i) timely receipt Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 16(a) or Section 16(b) of all necessary consents and approvals as set forth this Agreement within the time periods described in Paragraph 14(a)(i) herein;said Sections.
(ii) Title Company shall stand ready to issue, at the representations Closing, an ALTA Form B 1970 Owner's Policy of Title Insurance (the "Title Policy"), dated the date and warranties made by Seller hereunder being true time of Closing and correct with policy coverage in all material respects the amount of the Purchase Price, insuring Purchaser as owner of good, marketable and confirmed 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 writing the policy, an endorsement insuring against loss of title to the Property or the inability of the owner of the Property to maintain the improvements now located on the date Property by reason of Closinga violation of a covenant, as condition or restriction of record affecting the Property, a location endorsement insuring the accuracy of the date Survey, an endorsement insuring legal access to the Property from each of Closing;the streets bordering on the Property, and insuring that all 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 Purchaser.
(iii) Purchaser shall have obtained all licenses received and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesreasonably approved, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than within two (2) Business Days 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 receipt of such proposalLease. If Seller is unable to obtain an estoppel certificate from all Tenants (the Tenants from whom estoppel certificates have not been obtained, the "Missing Tenants"), but has obtained an estoppel certificate from all Major Tenants, then, in lieu thereof, Seller shall notify may satisfy this Condition Precedent by providing to Purchaser whether Seller will agree a certificate pertaining to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
each Missing Tenant (vi) The Properties shall be in substantially each a "Seller's Certificate"), covering the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as matters that would have been set forth in Paragraph 9 herein) orthe Missing Tenant's estoppel certificate (and if, after the Closing, Seller delivers to Purchaser or Manager obtains a tenant estoppel certificate from a Missing Tenant for whom Seller executed a Seller's Certificate at the election of the Purchaser in writingClosing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by then Seller and Purchaser, as applicable.thereafter shall
Appears in 1 contract
Sources: Purchase and Sale Agreement (General Growth Properties Inc)
Conditions Precedent to Closing. (a) The following shall be conditions precedent to Purchaser’s obligation of Seller to consummate the transactions purchase and sale transaction contemplated herein shall be subject to (the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and “Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:’s Conditions Precedent”):
(i) timely receipt Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 5, Section 16(a), Section 16(b), Section 17 or any other applicable section of all necessary consents and approvals as set forth this Agreement within the time periods described in Paragraph 14(a)(i) herein;said sections.
(ii) Title Company shall be irrevocably committed to issue, at the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as the Approved Title Policy, subject to Purchaser’s payment of the date of Closing;title premiums for which Purchaser is responsible hereunder.
(iii) Purchaser shall have obtained all licenses 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 permits necessary to complete not disclosing the legal transfer to Purchaser 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 Properties 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 (other than Cabot Park Village3) as operating assisted living facilitiesbusiness 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 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 Cabot Park Village estoppel certificates from the tenants, which were based on the form of estoppel certificate attached hereto as an operating independent living facilityExhibit D and Seller has remitted, or caused to be remitted, the estoppel certificates, as approved by Purchaser, to all the tenants of the Property for signature. Such estoppel certificates prepared by Seller and approved by Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress as provided above are referred to, collectively, as “Approved Estoppels”. Notwithstanding the foregoing, in connection therewith;
(ivthe event the condition described in this Section 9(a)(iii) The Real Property and the Personal Property shall not have been materially and adversely destroyed satisfied, either Seller or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect elect by notice to the MHFA Facilities other to extend the Closing for a period not to exceed thirty (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met 30) days in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve satisfy such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablecondition.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Conditions Precedent to Closing. The Lenders shall not be required to fund any requested Term Loan, or otherwise extend credit to the Borrower hereunder on the Closing Date, until the following conditions have been satisfied (or waived):
(a) The obligation Loan Documents required on the Closing Date and the Perfection Certificate shall have been duly executed and delivered to the Administrative Agent by each of Seller the Obligor signatories thereto.
(b) The Administrative Agent shall have received UCC, tax, judgment and intellectual property lien searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Obligor as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches as the Administrative Agent may reasonably require, none of which encumber the Collateral covered or intended to consummate be covered by the transactions contemplated herein Security Documents (other than Permitted Liens) and all actions necessary to establish that the Administrative Agent, for the benefit of the Secured Parties, will have a perfected security interest in and Lien on the Collateral with the priority required by the Loan Documents and (subject to Permitted Liens and to the terms of the Intercreditor Agreement) shall have been taken to the extent required by the terms of this Agreement and the Security Documents (other than the Mortgages); (provided, that the only actions that shall be subject required on the Closing Date to establish that the Administrative Agent will have a perfected Lien on the Collateral shall be the delivery of certificated securities, if any, evidencing the Equity Interests of the Obligors (other than Holdings) and their direct, wholly-owned subsidiaries and the perfection of the Administrative Agent’s security interest in any other Collateral of the Obligors pursuant to which a lien may be perfected by the filing of UCC financing statements.
(c) The Administrative Agent shall have received certificates, reasonably satisfactory to it (A) from the Chief Financial Officer of Holdings and the Borrower certifying that, after giving effect to the occurrenceTransactions, satisfaction or waiver of: Holdings, the Borrower and their Restricted Subsidiaries, taken as a whole, are Solvent; and (B) from a Senior Officer of the Borrower certifying that (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being in Section 4 and in the Security Documents are true and correct in all material respects (except in the case of any representation or warranty which expressly relates to a given date or period, such representation and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein warranty shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the respective date or for the respective period, as the case may be); provided that to the extent any representation and warranty is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, the definition thereof shall be a Material Adverse Effect for purposes of Closing;the making (or deemed making) of such representations and warranties on, or as of, the Closing Date (or any date prior thereto) and (ii) after giving effect to the Transactions, the Borrower and its Subsidiaries shall have no outstanding third party indebtedness for borrowed money or “disqualified” preferred stock other than the Loans and other extensions of credit under this Agreement, the ABL Facility, the Senior Unsecured Debt and Debt permitted by Section 6.1.
(d) The Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment, redemption, defeasance, discharge, refinancing or termination in full of all Existing Term Loans and all accrued interest and other amounts then due and owing under the Existing Term Loan Agreement and the release (or the making of arrangements for the release) of Liens in favor of the Existing Secured Notes Agent for the benefit of the lenders thereunder.
(e) The Administrative Agent shall have received evidence reasonably satisfactory to it of the delivery of irrevocable notice for the repayment or redemption of the Existing Secured Notes Debt to the extent accompanied by any prepayments or deposits required to defease, terminate and satisfy in full the obligations under the Existing Secured Notes Indenture or Existing Secured Notes Debt (including the delivery of an Officer’s Certificate pursuant to Section 3.01 of the Existing Secured Notes Indenture and the release (or the making of arrangements for the release) of Liens in favor of the Existing Secured Notes Agent for the benefit of the noteholders thereunder.
(f) The Administrative Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that an attached copy of such Obligor’s Organic Documents is true and complete and continue in full force and effect; (ii) that an attached copy of resolutions or written consent authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are or written consent is in full force and effect as of the Closing Date and were duly adopted; and (iii) Purchaser to the title, name and signature of each Person authorized to sign the Loan Documents.
(g) The Administrative Agent shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser received a written opinion of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesWeil, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇Gotshal & ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;LLP, in form reasonably satisfactory to the Administrative Agent.
(▇h) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, Administrative Agent shall have approved in writing received good standing certificates for each Obligor, issued by the sale Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization.
(i) The Administrative Agent shall have received certificates of insurance of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear Obligors evidencing liability and casualty and taking as permitted herein excepted, and also excepting conditions first arising after insurance meeting the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as requirements set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableLoan Documents.
Appears in 1 contract
Conditions Precedent to Closing. (a) The 6.1 In addition to any other conditions to Purchaser’s obligation of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as close set forth in Paragraph 13(a)(i) herein; (ii) 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 made by Purchaser hereunder being contained in this Agreement shall be true and correct in all material respects when made and confirmed 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, Escrowee will be committed to deliver to Purchaser one or more ALTA owner’s title insurance policies (each, a “Title Policy” and collectively, the “Title Policies”) insuring title to each Property subject only to the Permitted Exceptions, in writing an amount not less than the portion of the Purchase Price allocated to such Property on the date Schedule I, provided that (i) in advance of Closing, as Purchaser shall have taken all necessary and customary actions to arrange for or allow issuance of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debtsuch Title Policies by Escrowee, and (ivii) all necessary premiums or other documents hereunder charges required for Closing the issuance of such Title Policies are paid pursuant to Paragraph 12.1. In the event this Agreement is terminated pursuant to Paragraph 7.3, Purchaser and Seller shall have been executed each bear one half (1/2) the cost of any cancellation fees charged by Seller and Purchaser, as applicableEscrowee in connection with the issuance of commitments for the Title Policies. The immediately preceding sentence shall survive the termination of this Agreement.
(b) The 6.2 In addition to any other conditions to Sellers’ obligation of Purchaser to consummate the transactions contemplated herein shall be close set forth in this Agreement, Sellers’ obligation to close hereunder is subject to the occurrence, satisfaction or waiver each and all of the following conditionsconditions precedent:
(i) timely receipt A. All of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the Purchaser’s representations and warranties made by Seller hereunder being contained in this Agreement shall be true and correct in all material respects when made and confirmed in writing on the date of Closing, also as of the date of Closing;Closing Date when remade.
(iii) Purchaser shall have obtained all licenses B. All documents, instruments and permits necessary assurances required hereunder to complete the legal transfer be delivered to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt Sellers shall have been met in order duly delivered to allow the sale Sellers.
C. All material covenants and agreements of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing under this Agreement shall have been executed duly performed and delivered by Seller and Purchaser, as applicablesatisfied.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Credit Property Trust III, Inc.)
Conditions Precedent to Closing. (a) The obligation Buyer's obligations under this Agreement are expressly conditioned upon completion or satisfaction of the following matters on or prior to the Closing Date:
(i) Seller shall have deposited with the Escrow Agent all documents required of Seller to consummate 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 transactions contemplated herein 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 occurrence, satisfaction or waiver of: provisions of SECTION 4(G) above;
(iiii) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the The representations and warranties made by Purchaser hereunder being of Seller contained in SECTION 8(A) of this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of ClosingClosing Date, (iiisubject to SECTION 8(E) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and above;
(iv) all other documents hereunder 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 Closing 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 executed by Seller and Purchaser, as applicablesatisfied.
(b) The obligation of Purchaser Seller's obligations to consummate perform hereunder are expressly contingent and conditional upon the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditionsfollowing:
(i) timely receipt Buyer shall have deposited or have caused to be deposited with the Escrow Agent all documents and funds required of all necessary consents and approvals as set forth in Paragraph 14(a)(i) hereinBuyer 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 made by Seller hereunder being of Buyer contained in SECTION 8(B) of this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;Closing Date; and
(iv) The Real Property Buyer or its assignee shall have executed a management and the Personal Property shall not have been materially and adversely destroyed or damagedexclusive leasing agreement with Lawler-Wood, as defined LLC in a form substantially identical to ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;hed hereto as SCHEDULE 9(B)(IV).
(▇c) The Massachusetts Housing Finance Agency parties acknowledge that the conditions precedent set forth in SUBSECTION ("MHFA"A) above are for the benefit of Buyer and that the Department conditions precedent set forth in SUBSECTION (B) above are for the benefit of Housing and Urban Development 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 conditions precedent set forth in SUBSECTION ("HUD")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 the right to terminate this Agreement by written notice of termination given to the other party on or before the Closing Date or, if necessaryearlier, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations within ten (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions10) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising days after the date hereof with respect by which the condition must be satisfied. If such notice of termination is given, Escrow Agent shall return all documents and funds previously deposited into escrow to titlethe party so depositing same, surveyexcept if the events described in SUBSECTIONS 9(B)(I) THROUGH (IV) are not satisfied, zoning the Deposit shall be transferred to Seller and environmental mattersneither party shall have any further liability to the other hereunder, costing in except as otherwise provided herein. Notwithstanding the aggregate less than One Hundred Thousand Dollars ($100,000) foregoing, a party for whose benefit the condition precedent exists shall have the right to remedywaive satisfaction thereof, in which event, at Purchaser's election, Seller either event this Agreement shall remedy the same prior proceed to Closing (whichas otherwise provided herein. Unless notice of failure to satisfy conditions precedent is given as above provided, if such remedy cannot be cured prior to the original Closing Date, all conditions precedent shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicabledeemed satisfied.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Conditions Precedent to Closing. The obligation of Purchaser to purchase the Property shall be conditioned upon satisfaction of the following at or prior to Closing, any of which may be waived by Purchaser in its sole and absolute discretion (the “Conditions Precedent to Closing”):
(a) The obligation All conditions of title have been met pursuant to Subparagraph 6(a) and Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by cured any title objection Seller and Purchaser, as applicablehas agreed to cure in accordance with Subparagraph 6(d).
(b) The obligation Seller is not in default of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:this Agreement.
(ic) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the The representations and warranties made by Seller hereunder being true and correct contained in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;this Agreement must be true.
(iiid) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in received approvals from ▇▇▇▇▇▇▇▇▇▇ ▇▇ County, Maryland, a funding commitment letter from a third party lender, and an award letter for Low Income Housing Tax Credits from the Maryland Department of Housing and Community Development to build an affordable, multi-family residential unit building on the Property.
(e) Purchaser and Seller’s affiliate, ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD")▇ Redland Road, if necessaryL.C., shall have approved in writing enter into a Temporary Construction and Easement Agreement for the sale use of adjacent property (no more than 1 building pad on the adjacent property) for staging and storage of materials by Purchaser for construction of the MHFA Facilities building on the Property. In the event that any of the foregoing Conditions Precedent to Closing are not satisfied on or prior to the date of Closing, then Seller or Purchaser may elect to either (i) waive the applicable unsatisfied Conditions Precedent to Closing and proceed to Closing on the scheduled Closing date, in the Purchaser’s sole discretion, or (ii) immediately terminate this Agreement by written notice to the other party, in which case the Deposit shall be returned to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than within five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition days of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole termination and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, thereafter the parties shall close and appropriate financial adjustments shall be made; and
(vii) All relieved of all further liability hereunder with the exception of Purchaser’s obligations to Seller that survive any termination of this Agreement. In the event of a termination of this Agreement by Purchaser, Purchaser shall, at no additional cost or expense to Seller, assign to Purchaser all contracts, permits, applications, or any other documents required hereunder requested by Purchaser that were prepared for Closing shall have been executed and delivered by Seller and the Property or performed for Purchaser, as applicable.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Comstock Holding Companies, Inc.)
Conditions Precedent to Closing. (a) 10.1. The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
10.1.1. All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects as of the Effective Date, and confirmed 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 material, adverse encumbrance or title defect affecting the Property except for the Permitted Exceptions or matters to be satisfied at Closing.
10.1.3. Existing Lender shall have given in writing on the date Lender Approval and shall be prepared to execute and deliver the Lender Approval Documents at Closing.
10.1.4. Within three (3) business days of Closing, as Buyer shall have obtained, on terms acceptable to Buyer in its sole discretion, consent from the Ground Lessor for the assignment of the date 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, (iii) the termination, concurrent an assignment and assumption of lease agreement and any other documents required in connection with the Closingassignment and assumption of the Ground Lease and release of Seller and any affiliates of Seller as aforesaid, of all guaranties related in form substantially similar to Exhibit E hereto (the MHFA Debt“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, and (iv) all other documents hereunder for Closing either Buyer or Seller shall have been executed by Seller 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 Purchaseruse good faith efforts to obtain such consent from the Ground Lessor within three (3) business days prior to Closing; provided, however, so long as applicableBuyer complies with its obligations under this Section 10.1.4 in no event shall Buyer have any liability for its failure to obtain such consent.
(b) 10.2. The obligation obligations of Purchaser to consummate Seller under this Agreement shall, at the transactions contemplated herein shall option of Seller, be subject to the occurrence, satisfaction or waiver following conditions precedent:
10.2.1. All of the following conditions:
(i) timely receipt representations, warranties and agreements of all necessary consents and approvals as Buyer set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesEffective Date, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property Buyer shall not have been materially and adversely destroyed on or damagedprior to Closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer’s part as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;required by the terms of this Agreement.
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, 10.2.2. Existing Lender shall have approved given in writing the sale Lender Approval, with a release of Seller and all 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 given prior to Closing) whereupon this Agreement may be canceled, and upon return of the MHFA Facilities Due Diligence Items, the Deposit shall be paid to Purchaser and ElderTrust's assumption Buyer (except in the case of all (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 the Title Company and/or by Seller's then existing debts and ’s counsel, as applicable, 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 continuing obligations (without material modification hereunder except as may be reasonably customary otherwise expressly set forth herein; provided, however, that if Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectivelySection 10.1.2, the "MHFA Debt")Seller may, and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than within five (5) Business Days prior to the end days of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will Buyer’s notice agree to any or all of such additional conditions precedent satisfy the condition by written notice to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein exceptedBuyer, and also excepting conditions first arising after Buyer shall thereupon be obligated to close the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, transaction contemplated hereby provided Seller either shall remedy the same prior to Closing (which, if so satisfies such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablecondition.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Landmark Apartment Trust of America, Inc.)
Conditions Precedent to Closing. (a) The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
9.1. All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the 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 (30) days prior to Closing, effective as of Closing, (iii) the termination, concurrent with management agreement affecting the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing Property shall have been executed be terminated by Seller and Purchaser, any and all termination fees incurred as applicablea result thereof shall be the sole obligation of Seller.
(b) The obligation 9.4. 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 Seller whereupon this Agreement may be canceled, upon return of Purchaser to consummate the transactions contemplated herein Due Diligence Items, the Deposit shall be subject 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 occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as conditions precedent set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by this paragraph, Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closingmay, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than within five (5) Business Days prior days of receipt of Buyer’s notices agree to satisfy the end 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. Seller agrees to cooperate and execute such documents or instruments as may be necessary or appropriate to allow Buyer to complete a tax-deferred exchange pursuant to Section 1031 of the Study Period, Purchaser may propose the addition of IRS Code and Seller’s cooperation in such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Dateregard, shall be extended for up at no additional cost, expense, or liability whatsoever to ninety (90) days Seller, and that no additional delays in connection therewith as set forth in Paragraph 9 herein) or, at the election scheduled Close of the Purchaser in writing, the Escrow are incurred unless mutually agreed upon by all parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicableto this Agreement.
Appears in 1 contract
Conditions Precedent to Closing. (a) The following shall be conditions precedent to Purchaser’s obligation of Seller to consummate the transactions purchase and sale transaction contemplated herein shall be subject to (the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and “Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:’s Conditions Precedent”):
(i) timely receipt Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 5, Section 16(a), Section 16(b), Section 17 or any other applicable section of all necessary consents and approvals as set forth this Agreement within the time periods described in Paragraph 14(a)(i) herein;said sections.
(ii) Title Company shall be irrevocably committed to issue, at the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as the Approved Title Policy, subject to Purchaser’s payment of the date of Closing;title premiums for which Purchaser is responsible hereunder.
(iii) Purchaser shall have obtained all licenses 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 permits necessary to complete not disclosing the legal transfer to Purchaser 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 Properties 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 (other than Cabot Park Village3) as operating assisted living facilities, and business days of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all Purchaser’s receipt of such licenses and permits and to keep Seller advised regarding estoppel certificate of its disapproval of such efforts and progress in connection therewith;
(iv) The Real Property estoppel certificate and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in basis of such disapproval. A “Major Tenant” means each of the following tenants at the Property: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Fargo Advisors, Sarofim Realty Advisors, Keybank National Association, KDC Holdings, ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, RGN-Metro Dallas, ▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") ▇▇▇ 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 Department forms of Housing estoppel certificates from the tenants, which were based on the form of estoppel certificate attached hereto as Exhibit D and Urban Development ("HUD")Seller has remitted, if necessaryor caused to be remitted, shall have the estoppel certificates, as approved in writing by Purchaser, to all the sale tenants of the MHFA Facilities to Property for signature. Such estoppel certificates prepared by Seller and approved by Purchaser and ElderTrust's assumption of all of as provided above are referred to, collectively, as “Approved Estoppels”. Notwithstanding the Seller's then existing debts and obligations (without material modification except as foregoing, in the event the condition described in this Section 9(a)(iii) shall not have been satisfied, either Seller or Purchaser may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect elect by notice to the MHFA Facilities other to extend the Closing for a period not to exceed thirty (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met 30) days in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve satisfy such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablecondition.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Conditions Precedent to Closing. Borrower agrees that Borrower will perform and satisfy all of the following conditions precedent, and Borrower agrees that Lender’s obligation to close the Loan and to fund the Loan, is conditioned, among other things, upon Borrower’s performance or satisfaction of all these conditions precedent:
(a) The obligation No Default or Event of Seller Default shall have occurred and be continuing under this Agreement (including, without limitation, with respect to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as contained herein) or any of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicableLoan Documents.
(b) The obligation of Purchaser Borrower shall have furnished to consummate Lender the transactions contemplated herein shall be subject following, all in form and substance satisfactory to the occurrence, satisfaction or waiver of the following conditionsLender:
(i) timely receipt a paid Mortgagee’s Title Insurance Policy (ALTA Form B-1992) (the “Title Policy”); issued by the Title Insurer in the face amount of all necessary consents the Mortgage, establishing that the Title Insurer insures the lien of the Mortgage to be a prior and approvals paramount lien against Borrower’s fee simple interest in the Land and the Improvements located thereon subject only to the Permitted Exceptions. The Title Policy shall contain (A) an ALTA 9 endorsement (or equivalent title protection reasonably acceptable to Lender), (B) a survey endorsement specifically insuring Lender that the survey described in Section 6.l(b)(ii) below is accurate and accurately depicts the same Real Estate covered by the Title Policy, (C) an endorsement specifically insuring the priority of the lien of the Mortgage as set forth it applies to the Loan; and (D) any other endorsements Lender may require in Paragraph 14(a)(iits reasonable discretion. Such policy shall provide extended coverage over (1) hereinstandard exceptions, (2) matters which would be shown by an inspection or an accurate survey of the Land, (3) rights of parties in possession, (4) easements not of record, and (5) real estate taxes and assessments, both general and special, other than unpaid but not yet due installments of real estate taxes and assessments;
(ii) plat of survey of the representations and warranties Real Estate, made by Seller hereunder being true and correct a Florida registered or certified land surveyor satisfactory to the Lender, in all material respects and confirmed in writing on triplicate, showing the date of Closing, as outline of the date of Closing;
Land, all other structures and improvements thereon, if any, and all paving, driveways and fences, if any, in place. Said survey shall be currently dated (iiior redated) Purchaser and shall have obtained all licenses and permits necessary to complete contain a proper certificate by the surveyor, which certificate shall include the legal transfer to Purchaser of all description of the Properties (other than Cabot Park Village) as operating assisted living facilitiesLand and shall be made in favor of Borrower, Title Insurer and of Cabot Park Village as an operating independent living facilityLender. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property survey shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect made according to the MHFA Facilities current “2005 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys” and shall also show (collectively, A) the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale square footage of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.the
Appears in 1 contract
Sources: Loan Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Conditions Precedent to Closing. (a) The obligation of Seller to consummate the transactions contemplated herein shall be Purchaser's obligations hereunder are subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iiia) Purchaser shall have obtained all licenses had sufficient opportunity to have completed an examination of the Premises and permits conducted such engineering, environmental, and feasibility studies, including soil tests and borings on the Premises as are necessary to complete determine the legal transfer to Purchaser of all physical and economical suitability of the Properties (other than Cabot Park Village) as operating assisted living facilitiesPremises for Purchaser's proposed use, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval have determined, in its reasonable discretion, that the Premises are suitable for Purchaser's proposed use and meet such requirements, then not later than five (5) Business Days prior that its proposed use is economically feasible. Such studies shall be conducted by Purchaser at its sole cost and expense. Seller agrees to allow Purchaser reasonable access to the end Premises to conduct such studies. Purchaser shall save, defend, indemnify, 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 result of Purchaser's negligence or misconduct with respect to any examination, test, or study on the Premises, excluding the discovery of any preexisting condition on the Premises. The obligations of Purchaser imposed by the preceding sentence shall survive any termination of this Agreement and shall survive Closing;
(b) Purchaser shall have received an executed original of Seller's certification of nonforeign status made pursuant to Section 1445(b)(2) of the Study PeriodInternal Revenue Code and in a form substantially similar to Exhibit B attached hereto and incorporated by this reference;
(c) Purchaser shall have determined to its satisfaction that utilities, including water, sanitary sewer, storm sewer, natural gas, and electricity are available to the Premises in a location and capacity adequate to accommodate Purchaser's intended use of the Premises;
(d) Purchaser shall have determined to its satisfaction that the zoning of the Premises will permit Purchaser's proposed use of the Premises;
(e) 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 13 and 14. Within ten days of full execution of this Agreement, Seller shall deliver to Purchaser a copy of each existing survey, plat map, environmental or soils study, and the like in Seller's possession which further describes the Premises in order to assist Purchaser in its investigation of the Premises. Purchaser shall have 45 days from date hereof in which to determine whether the conditions set forth in this Section 4 are satisfied and, in the case of the condition of title and survey matters, the periods set forth in Sections 13 and 14. If any of such conditions are not satisfied, in the sole judgment of Purchaser, Purchaser may propose the addition of terminate this Agreement upon written notice to Seller within 60 days. Absent such modifications as additional conditions precedent written notice to Seller, Purchaser shall be deemed to have waived all unsatisfied conditions. If Purchaser terminates this Agreement pursuant to the Closing hereunder. In such eventforegoing option, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing neither party shall have been executed and delivered by Seller and Purchaserany further rights or obligations under this Agreement, except as applicableprovided in Section 22.
Appears in 1 contract
Conditions Precedent to Closing. (a) 5.1 The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
5.1.1 All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date hereof and as of ClosingClose of Escrow, and Seller shall not have on or prior to Close of Escrow, 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.
5.1.2 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 satisfied prior to or on Close of Escrow.
5.1.3 Unless Seller receives notice from Buyer at least thirty (iii30) days prior to Close of Escrow, effective as of Close of Escrow, the terminationmanagement agreement affecting the Property shall be terminated by Seller, concurrent with and any and all termination fees incurred as a result thereof shall be the Closingsole obligation of Seller.
5.1.4 Unless Seller receives notice from Buyer at least thirty (30) days prior to Close of Escrow, effective as of the Close of Escrow, all guaranties related of the Contracts (including the Service Contracts) shall be terminated by Seller, and any and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
5.1.5 The Existing Lender shall have consented to the MHFA Debtassumption of the Existing Loan by Buyer, and (iv) all other documents hereunder for Closing on terms acceptable to Buyer, Buyer shall have been executed by Seller and Purchaserfour (4) business days after receiving the approved assumption from the Existing Lender, as applicablestating all of the terms upon which Buyer shall have the right to assume the Existing Loan, in which to terminate this Agreement if the terms of the assumption are not acceptable to Buyer.
(b) The obligation of Purchaser to consummate the transactions contemplated herein 5.1.6 Archon Financial shall be subject to the occurrence, satisfaction or waiver of the following conditions:
have agreed that (i) timely receipt of all necessary consents Buyer shall have the right to obtain the Replacement Financing, on terms acceptable to Buyer, and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties Replacement Financing Loan Fees shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars credited ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.on a dollar-for-dollar basis)
Appears in 1 contract
Sources: Purchase and Sale Agreement (NNN 2002 Value Fund LLC)
Conditions Precedent to Closing. 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 Buyer and may be waived only by Buyer in writing. 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 returned to Buyer and, subject to 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 of no further force or effect; provided, however, that in the event any of the Conditions Precedent have not been satisfied or waived, Buyer shall so inform Seller of same and Seller shall have thirty (30) days from the date of such notification to satisfy such Condition Precedent.
(a) The obligation All of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the Seller's representations and warranties made by Purchaser hereunder being contained in this Agreement shall have been substantially true and correct in all material respects when made and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being substantially true and correct in all material respects and confirmed in writing as of the Closing Date.
(b) The physical condition of the Property shall be substantially the same on the Closing Date as on the date of ClosingBuyer's execution of this Agreement, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and loss by casualty (subject to the provisions of Paragraph 13, below) and taking as permitted herein exceptedrepairs, replacements and improvements made with Buyer's written approval.
(c) As of the Closing Date, there shall be no litigation or administrative agency or other governmental proceeding of any kind whatsoever, pending or threatened, which was not disclosed in writing to Buyer during the Due Diligence Period and which, after Closing would, in Buyer's reasonable opinion, 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 also excepting conditions first arising after no proceedings shall be pending or threatened which could or would cause the date hereof with respect to titleredesignation or other modification of the zoning classification of, surveyor of any building or environmental code requirements applicable to, zoning and environmental matters, costing in any of the aggregate less than One Hundred Thousand Dollars Property.
($100,000d) to remedy, in which event, Seller shall terminate at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured or prior to the original Closing Date, at no cost or expense to Buyer, any and all contracts or other agreements affecting the Property that are not Assumed Contracts.
(e) Seller shall be extended for up have substantially complied with all of Seller's material duties and obligations contained in this Agreement.
(f) Seller shall have delivered to Buyer tenant certificates ("Tenant Certificates") dated within thirty (30) days of the Closing Date in a form substantially similar to Exhibit "L" attached hereto from tenants under Leases of the Property representing ninety percent (90%) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser gross revenue of the Property; provided, that in writingthe event that any state agency, including but not limited to the parties Texas Workforce Commission, requires the use of a different form, Buyer shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder accept such different form for Closing shall have been executed and delivered by Seller and Purchaser, as applicablesuch tenant.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Industrial Properties Reit Inc)
Conditions Precedent to Closing. (a) 10.1. The obligation obligations of Seller Purchaser to consummate the transactions contemplated herein shall be by this Agreement are subject to each of the occurrencefollowing conditions, satisfaction any one or waiver of: more of which may be waived in whole or in part by Purchaser:
(ia) timely receipt of all necessary consents The representations and approvals as warranties set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being Section 4.1 hereof shall be true and correct in all material respects at and confirmed in writing on the date of Closing, as of the date Closing Date with the same effect as though the same had been made on and as of Closingsaid date, (iii) the termination, concurrent with and at the Closing, of all guaranties related Seller shall deliver to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicablePurchaser a certification to such effect.
(b) The obligation relocation and expansion of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver certain Tenants and modification of the following conditions:certain Leases as more fully set forth on Exhibit S attached hereto and made a part hereof have been completed and approved by Purchaser.
(ic) timely receipt of all necessary consents Seller shall have complied with and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in performed all material respects agreements and confirmed in writing on the date of Closing, conditions required by this Agreement to be performed or complied with prior to or as of the date of Closing;Closing Date.
(iiid) Purchaser shall have obtained received the Tenant Estoppels from all licenses Tenants above 2,000 square feet of net rentable area prior to Closing (the "Required Estoppels"). Seller shall have the option, but not the obligation, to provide Purchaser with a certificate of Seller (a "Seller Certificate") addressing, in the same manner as provided in an estoppel certificate acceptable in form and permits necessary substance to complete Purchaser, the legal transfer items set forth in each Tenant Estoppel Certificate comprising the Required Estoppels which Seller is required, but is unable, to Purchaser of all obtain, it being agreed and understood that the Seller Certificate shall not cover a square footage greater than twenty percent (20%) of the Properties (other than Cabot Park Village) as operating assisted living facilitiesnet rentable area at the Property, and of Cabot Park Village as an operating independent living facility. Purchaser agrees excluding the space leased to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damagedChrysler, as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ Homes, USA Mobile and Hitachi, unless otherwise agreed to by Purchaser. Notwithstanding the above, Purchaser shall have the option of terminating this Agreement if Seller is unable to deliver an estoppel certificate in form and substance satisfactory to Purchaser for either Chrysler, ▇▇▇▇▇▇▇▇▇▇▇;▇ Homes, USA Mobile or Hitachi.
(▇e) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to conduct interviews with any or all of such additional conditions precedent to Closing which agreement the Tenants with the Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end or an agent of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicablepresent.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Nylife Realty Income Partners I L P)
Conditions Precedent to Closing. (a) The obligation obligations of Seller Buyer pursuant to consummate the transactions contemplated herein this Agreement shall be subject to the occurrence, satisfaction or waiver of: following conditions precedent to Closing (i) timely receipt any of all necessary consents and approvals as set forth which may be waived in Paragraph 13(a)(i) herein; (ii) writing by Buyer in its sole discretion):
9.1. All of the representations and warranties made by Purchaser hereunder being of Seller set forth in Section 7.1 shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing, (iii) the termination, concurrent with the Closing, of and all guaranties related to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicable.
(b) The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt other representations, warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the 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;.
9.3. The Existing Management Agreement affecting the Property shall be terminated by Seller and any and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.4. Seller shall have 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 receipt of a copy of an executed Tenant Estoppel Certificate of its approval or disapproval and the basis of such disapproval, if disapproved. If Buyer disapproves of a Tenant Estoppel Certificate executed by a Major Tenant because of a material, 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 Agreement shall terminate, Buyer shall be entitled to a refund of the Deposit and all interest earned thereon, 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) Elsevier, (iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesUS Navy, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property Barrister Executive Services, (v) First Allied Security, (vi) California Bank & Trust and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in (vii) M▇▇▇▇▇▇ ▇▇▇▇▇ B▇▇▇▇▇▇ H▇▇▇▇ & L▇▇▇▇▇ LLP (d/b/a Lerach C▇▇▇▇▇▇▇ S▇▇▇▇ G▇▇▇▇▇ R▇▇▇▇▇ & R▇▇▇▇▇▇▇▇▇▇▇;
(▇) ▇ LLP). The Massachusetts Housing Finance Agency ("MHFA") Leases between Landlord and the Department of Housing and Urban Development ("HUD"), if necessary, shall have approved in writing the sale each of the MHFA Facilities Major Tenants are hereinafter referred to Purchaser and ElderTrust's assumption of all of as the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable“Major Leases.”
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hines Real Estate Investment Trust Inc)
Conditions Precedent to Closing. (a) 10.1 The obligation obligations of Seller Buyer pursuant to consummate this Agreement shall, at the transactions contemplated herein shall option of Buyer, be subject to the occurrencefollowing conditions precedent:
10.1.1 All of the representations, satisfaction or waiver of: (i) timely receipt warranties and agreements of all necessary consents and approvals as Seller set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of 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 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.
10.1.3 Seller shall have obtained and delivered to Buyer estoppel certificates, in accordance with their respective Leases, from tenants representing seventy percent of the square feet which are leased and occupied by tenants as of the Effective Date. Estoppel certificates shall be deemed to satisfy this condition precedent unless they disclose material adverse matters. Buyer shall notify Seller within three (iii3) business days of receipt of a copy of the terminationexecuted estoppel certificate of its approval or disapproval and the basis of such disapproval, concurrent with if disapproved. 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, this Agreement shall terminate, Buyer shall be entitled to a refund of all guaranties related the Deposit, and neither party shall have any further obligation to the MHFA Debt, and (iv) all other documents hereunder for Closing shall have been executed by Seller and Purchaser, as applicableexcept Buyer's indemnification obligations under Paragraph 5.
(b) 10.2 The obligation obligations of Purchaser to consummate Seller under this Agreement shall, at the transactions contemplated herein shall option of Seller, be subject to the occurrence, satisfaction or waiver following conditions precedent:
10.2.1 All of the following conditions:
(i) timely receipt representations, warranties and agreements of all necessary consents and approvals as Buyer set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being this Agreement shall be true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilitiesEffective Date, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property Buyer shall not have been materially and adversely destroyed on or damagedprior to closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer's part as defined in ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;required by the terms of this Agreement.
(▇) The Massachusetts Housing Finance Agency ("MHFA") and the Department of Housing and Urban Development ("HUD"), if necessary, 10.2.2 Seller shall have approved in writing received approval of the sale from the board of directors of NNN 2003 Value Fund, LLC, a Delaware limited liability company, the MHFA Facilities to Purchaser and ElderTrust's assumption of all parent company of the Seller's then existing debts , no later than fifteen business days after full execution of this Agreement. If any such condition is not fully satisfied by closing, the party is whose favor the condition runs shall notify the other party and obligations (without material modification except as may terminate this Agreement by written notice whereupon this Agreement may be reasonably customary in connection with sales and assumptions canceled, upon return of similar MHFA transactions) the Due Diligence Items the Deposit shall be paid to MHFA with respect to the MHFA Facilities (collectivelyBuyer and, the "MHFA Debt")thereafter, and any other requirements under the loan documents in connection with the MHFA Debt neither Seller nor Buyer shall have been met any continuing obligations hereunder; provided, however, that if Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrustthis paragraph, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. IfSeller may, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than within five (5) Business Days prior to the end days of the Study Period, Purchaser may propose the addition of such modifications as additional conditions precedent to the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will Buyer's Notices agree to any or all of such additional conditions precedent satisfy the condition by written notice to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein exceptedBuyer, and also excepting conditions first arising after Buyer shall thereupon be obligated to close the date hereof with respect transaction provided Seller so satisfies such condition. If Seller fails to title, survey, zoning and environmental matters, costing in agree to cure or fails to cure such condition by the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, this Agreement shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at canceled and the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments Deposit shall be made; and
(vii) All other documents required hereunder for Closing returned to Buyer and neither party shall have been executed and delivered by Seller and Purchaser, as applicableany further liability hereunder.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Conditions Precedent to Closing. The closing of the First Lien Exit Facilities will be subject to satisfaction of the following: (a) The obligation all of Seller to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of: (i) timely receipt of all necessary consents and approvals as set forth in Paragraph 13(a)(i) herein; (ii) the representations and warranties made by Purchaser hereunder being in the First Lien Exit Facilities Documents shall be true and correct in all material respects and confirmed (or if qualified by materiality or material adverse effect, in writing on the date of Closing, all respects) as of the date of Closingsuch extension of credit, or if such representation speaks as of an earlier date, as of such earlier date; (iiib) no default or event of default under the termination, concurrent with the Closing, First Lien Exit Facilities shall have occurred and be continuing or would result from such extension of credit; (c) delivery of a customary borrowing notice; (d) all guaranties related conditions to the MHFA Debt, and (iv) all other documents hereunder for Closing Plan Effective Date shall have been executed satisfied in accordance with the Plan or shall have been waived with the consent of the Required Consenting BrandCo Lenders; and (e) satisfaction of those conditions listed on Annex I hereto. On the Plan Effective Date, the First Lien Exit Facilities shall be funded (or be deemed to have been funded) in full. Voting/Required First Lien Term Lenders Customary and appropriate for exit facilities of this type consistent with First Lien Documentation Principles. First Lien Term Lenders holding more than 50% of the outstanding principal amount of the First Lien Exit Term Loans are referred to herein as the “Required First Lien Term Lenders.” Fees and Expenses & Indemnification Customary and appropriate for facilities of this type consistent with First Lien Documentation Principles. Assignments and Participations Customary and appropriate for facilities of this type (including prohibition on assignments to disqualified lenders); provided that the consent of the Borrower (not to be unreasonably withheld or delayed; Borrower consent shall be deemed given unless it objects by Seller and Purchaserwritten notice to the First Lien Exit Term Loan Agent within 5 business days after receipt of written notice thereof) shall be required for assignments other than (a) assignments to another First Lien Term Lender, as applicable.
an affiliate of a First Lien Term Lender or an approved fund or (b) during an event of default. Other Provisions The obligation First Lien Exit Facilities Documents shall include customary provisions regarding increased costs, illegality, tax indemnities, waiver of Purchaser to consummate trial by jury and other similar provisions. Governing Law The laws of the transactions contemplated herein shall be subject State of New York. Counsel to the occurrence, satisfaction or waiver of the following conditions:
(i) timely receipt of all necessary consents and approvals as set forth in Paragraph 14(a)(i) herein;
(ii) the representations and warranties made by Seller hereunder being true and correct in all material respects and confirmed in writing on the date of Closing, as of the date of Closing;
(iii) Purchaser shall have obtained all licenses and permits necessary to complete the legal transfer to Purchaser of all of the Properties (other than Cabot Park Village) as operating assisted living facilities, and of Cabot Park Village as an operating independent living facility. Purchaser agrees to use diligent good faith efforts to obtain all such licenses and permits and to keep Seller advised regarding such efforts and progress in connection therewith;
(iv) The Real Property and the Personal Property shall not have been materially and adversely destroyed or damaged, as defined in Initial First Lien Term Lenders ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
LLP The borrowing (▇or deemed borrowing) The Massachusetts Housing Finance Agency ("MHFA") and under the Department of Housing and Urban Development ("HUD"), if necessary, First Lien Exit Facilities shall have approved in writing the sale of the MHFA Facilities to Purchaser and ElderTrust's assumption of all of the Seller's then existing debts and obligations (without material modification except as may be reasonably customary in connection with sales and assumptions of similar MHFA transactions) to MHFA with respect subject to the MHFA Facilities (collectively, the "MHFA Debt"), and any other requirements under the loan documents in connection with the MHFA Debt shall have been met in order to allow the sale of the MHFA Facilities and the assumption of the MHFA Debt by ElderTrust, with Purchaser at all times using diligent good faith efforts to achieve such approval and meet such requirements. If, during the Study Period, Purchaser shall discover that material modifications to the documents in connection with the MHFA Debt will be reasonably necessary in order for Purchaser to achieve such approval and meet such requirements, then not later than five (5) Business Days prior to the end of the Study Period, Purchaser may propose the addition of such modifications as following additional conditions precedent to precedent, unless waived by the Closing hereunder. In such event, no later than two (2) Business Days after its receipt of such proposal, Seller shall notify Purchaser whether Seller will agree to any or all of such additional conditions precedent to Closing which agreement Seller may withhold in its sole and absolute discretion;
(vi) The Properties shall be in substantially the same condition as they were at the end of the Study Period, reasonable wear and tear and casualty and taking as permitted herein excepted, and also excepting conditions first arising after the date hereof with respect to title, survey, zoning and environmental matters, costing in the aggregate less than One Hundred Thousand Dollars ($100,000) to remedy, in which event, at Purchaser's election, Seller either shall remedy the same prior to Closing (which, if such remedy cannot be cured prior to the original Closing Date, shall be extended for up to ninety (90) days in connection therewith as set forth in Paragraph 9 herein) or, at the election of the Purchaser in writing, the parties shall close and appropriate financial adjustments shall be made; and
(vii) All other documents required hereunder for Closing shall have been executed and delivered by Seller and Purchaser, as applicable.Required Consenting BrandCo Lenders:
Appears in 1 contract
Sources: Chapter 11 Restructuring Support Agreement (Revlon Consumer Products Corp)