Operation of the Properties. Between the Effective Date and the Closing Date: (a) Subject to Sections 15.1(b), (c), (d), (e), (f), (g), (h) and (i), Sellers shall continue to operate and maintain the Properties and to purchase supplies for the Properties in the ordinary course of business in accordance with present business practices. In no event shall Sellers be obligated to Buyer, however, to expend any sums to correct any violations, or make any capital improvements or repairs to capital improvements, or to otherwise cause the Properties to be in compliance with any law, regulation or ordinance. (b) Except as otherwise expressly provided in this Agreement, Sellers may not, without the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), (i) cancel or terminate any Lease (other than for a default thereunder by a party other than any Seller), (ii) renew or extend any Lease (other than in accordance with the leasing guidelines for each Property annexed as Exhibit Y, or pursuant to the terms of options or extensions set forth in any existing Lease) or (iii) enter into any new lease other than in accordance with the leasing guidelines for each Property annexed as Exhibit Y. Each such Seller shall have the right to s▇▇ Tenants and to collect such delinquencies, but no action shall be taken to dispossess any such Tenant following Closing. Seller shall be entitled to any monetary awards resulting such suits (less reasonable allocation of costs and expenses for attorneys’ fees) for Rents pertaining to the three month period prior to the Closing Date, and for operating expense delinquencies applicable to any period of time prior to the Closing Date. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1(b), which notice shall include the material terms of the proposed action. (c) Except as otherwise expressly provided in this Agreement, Sellers may not, without the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), cancel, terminate, renew, extend or modify in any material respect any of the Service Contracts, or enter into any new service contract or equipment lease for all or any portion of the Properties unless, in the case of any such cancellation or termination, a new service contract or equipment lease on substantially similar or more favorable terms is entered into and the same is terminable upon thirty (30) days’ notice or, in the case of any extension or renewal of a Service Contract or entering into of any new service contract or equipment lease, the same may be terminated on not more than thirty (30) days notice. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1 (c), which notice shall include the material terms of the proposed action as well as a request for Buyer’s consent thereto if such consent is required by the terms of the foregoing provisions of this Subsection (c). If Buyer does not respond to such notice within five (5) Business Days after receipt thereof, time being of the essence with respect thereto, Buyer shall be deemed to have consented to such actions, as set forth in Section 15.4 below. (d) Sellers shall not make any expenditures with respect to the Properties which are not in the ordinary course of business in accordance with present business practices without Buyer’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), except in the case of emergencies to protect any property or person from damage or injury, Sellers Outstanding Lease Obligations, the Out-for Signature Leasing Costs, the Vacancy Leasing Costs (for which Buyer shall receive a credit at Closing), the capital expense projects identified on Exhibit N hereto and further provided that Buyer’s consent shall not be required for, and Sellers shall be permitted to pay, any actual increase in property taxes, insurance premiums, or increased costs caused by any increase in any utility rates. Each Seller shall complete all work described on Exhibit N hereto pertaining to such Seller’s Property, and if the same is not completed prior to Closing, such Seller shall provide a credit to Buyer at Closing for the cost of completing such work. (e) Sellers will keep in full force and effect with respect to the Properties policies of insurance providing coverage at least as extensive as that described in Exhibit Z. (f) Unless to be discharged in full on or prior to the Closing Date with releases or discharges delivered contemporaneously with, or prior to, the Closing Date, Sellers shall not further encumber the Properties with any mortgage, deed of trust or similar security agreement. Furthermore, unless to be discharged in full on or prior to the Closing Date, Sellers shall not, without Buyer’s prior written approval not to be unreasonably withheld, conditioned or delayed (i) execute any easement agreements except those required in connection with ongoing development at a Property, and, (ii) unless otherwise permitted pursuant to the terms of this Agreement, execute any other documents or agreements affecting title to the Properties. (g) Notwithstanding any limitation set forth herein, Sellers may, without Buyer’s consent and without cost to Buyer (unless otherwise set forth herein or unless otherwise approved by Buyer) (i) take such actions, if any, with respect to the Properties, reasonably necessary to comply with the terms of the Leases and any insurance requirements or to comply with laws, rules or regulations of any governmental authority, (ii) take such actions as they deem reasonably necessary to repair any insured or uninsured casualty or damage, and (iii) take such actions with respect to the Properties reasonably necessary to prevent loss of life, personal injury or property damage. (h) Each of Buyer and the Seller of Parcel 29G (the “29G Seller”) acknowledges and agrees that 29G Seller will enter into separate contracts (collectively, the “29G Construction Contracts”) with the following entities for the construction of improvements on Parcel 29G: (i) Trinity Group Construction, Inc. (the general contractor), (ii) Metroplex Retaining Walls of Virginia, (iii) A▇▇▇▇▇▇▇ Site Contracting, Inc., and (iv) contracts with other entities reasonably required by 29G Seller for the construction of the improvements on Parcel 29G, each of which shall be subject to Buyer’s reasonable consent. The final form of the 29G Construction Contracts will be mutually agreeable to Buyer and 29G Seller. 29G Seller shall perform all of the obligations of the property owner under each of the 29G Construction Contracts from the Effective Date until the Closing Date, and, at Closing 29G Seller shall assign, and Buyer shall assume, all of 29G Seller’s obligations under the 29G Construction Contracts (which shall include, without limitation, all outstanding amounts owed and other liabilities thereunder). 29G Seller covenants to not modify any 29G Construction Contract without the prior consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. At Closing, (I) 29G Seller shall receive reimbursement for (A) the costs incurred as of the Effective Date by 29G Seller in connection with the development of the improvements on Parcel 29G (which costs are set forth on Exhibit DD attached hereto (the “29G Construction Costs”)), and (B) any additional costs incurred by 29G Seller in connection with the construction of the 29G Building between the Effective Date and the Closing Date, including those costs incurred under the 29G Construction Contracts, are otherwise consistent with the 29G budget posted in the War Room as of the Effective Date, or are reasonably approved by Buyer (collectively, the “29G Construction Costs”), and (II) The W▇▇▇▇▇▇ Family Trust (the “Trust”) and Buyer shall enter into a master lease payment agreement for the building being constructed on Parcel 29G in the form of Exhibit EE attached hereto. (i) Each of Buyer and the Seller of Parcel 20 located in TransDulles Centre (the “Parcel 20 Seller”) acknowledge and agree that Parcel 20 Seller has entered into a letter of intent with, and is currently negotiating a build-to-suit lease with Universal Technical Institute or its affiliate (collectively “UTI”) for approximately 150,000 rentable square feet of space (the “Parcel 20 Minimum Space”) within a building to be constructed on a portion of the Parcel 20 Land (the “Parcel 20 Building”). In the event UTI and Parcel 20 Seller terminate negotiations, Parcel 20 Seller shall market the Parcel 20 Building and seek to enter into one or more leases for no less than the Parcel 20 Minimum
Appears in 1 contract
Sources: Commercial Multi Property Agreement of Purchase and Sale (Duke Realty Limited Partnership/)
Operation of the Properties. Between From the Effective Date and hereof until the Closing Dateor earlier termination of this Agreement, each Contributor:
(ai) Subject to Sections 15.1(b)shall (1) use, (c), (d), (e), (f), (g), (h) and (i), Sellers shall continue to operate and maintain the Properties Property owned by such Contributor in a manner consistent with the manner in which such Contributor has operated and maintained the Property prior to purchase supplies for the Properties date hereof, it being agreed that the forgoing shall in the ordinary course of business in accordance with present business practices. In no event shall Sellers be obligated require the making of any Capital Improvements to Buyerthe Improvements, however, to expend (2) not directly or indirectly negotiate with any sums to correct any violationsthird party respecting the sale of such Property, or make any capital improvements portion thereof or repairs any interest therein, and (3) continue to capital improvements, maintain a commercial property insurance policy or policies covering such Property as are in force and effect on the Effective Date or substantially equivalent or better to otherwise cause the Properties to be in compliance with any law, regulation such policy or ordinance.policies;
(b) Except as otherwise expressly provided in this Agreement, Sellers may not, without the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), (i) cancel or terminate any Lease (other than for a default thereunder by a party other than any Seller), (ii) renew shall not (1) enter into any renewal, expansion, termination, amendment or extend modification of any Lease or any License, (other than in accordance with the leasing guidelines for each Property annexed as Exhibit Y, or pursuant to the terms of options or extensions set forth in any existing Lease) or (iii2) enter into any new lease, license or other agreement granting any rights of use or occupancy at any portion of any Property, or (3) waive in writing any rights of such Contributor under any Lease or any License, in each case without the Partnership’s consent which consent may be given or withheld in the Partnership’s sole discretion; provided, however, that the Partnership shall not unreasonably withhold or delay its consent to new leases, licenses, other occupancy agreements and renewals, expansions, terminations, amendments or modifications of Leases or Licenses covering less than 5,000 square feet of floor area provided that (i) any such new lease, license or other occupancy agreement uses the standard form of lease other than in accordance for the applicable Property, (ii) is on market terms and conditions consistent with the leasing guidelines for each Property annexed as Exhibit Y. Each such Seller shall have offering materials concerning the right to s▇▇ Tenants Properties prepared and to collect such delinquencies, but no action shall be taken to dispossess any such Tenant following Closing. Seller shall be entitled to any monetary awards resulting such suits (less reasonable allocation of costs and expenses for attorneys’ fees) for Rents pertaining submitted to the three month period Partnership by NGKF prior to the Closing Date, Effective Date and for operating expense delinquencies applicable to any period of time (iii) the Partnership is given adequate prior to the Closing Date. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1(b)and consultation rights with respect thereto. If, which notice shall include the material terms of the proposed action.
within ten (c) Except as otherwise expressly provided in this Agreement, Sellers may not, without the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), cancel, terminate, renew, extend or modify in any material respect any of the Service Contracts, or enter into any new service contract or equipment lease for all or any portion of the Properties unless, in the case of any such cancellation or termination, a new service contract or equipment lease on substantially similar or more favorable terms is entered into and the same is terminable upon thirty (30) days’ notice or, in the case of any extension or renewal of a Service Contract or entering into of any new service contract or equipment lease, the same may be terminated on not more than thirty (30) days notice. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1 (c), which notice shall include the material terms of the proposed action as well as a request for Buyer’s consent thereto if such consent is required by the terms of the foregoing provisions of this Subsection (c). If Buyer does not respond to such notice within five (510) Business Days after receipt thereofit receives a written request from a Contributor to consent to a new lease, time being license, other occupancy agreement, renewal, expansion, termination, amendment or modification, that Contributor does not receive written notice of the essence with respect Partnership’s denial of its consent thereto, Buyer shall the Partnership’s consent will be deemed to have consented to such actionsgiven. Notwithstanding the foregoing, as set forth in Section 15.4 below.
(d) Sellers shall not make any expenditures with respect to the Properties which are not in the ordinary course of business in accordance with present business practices without BuyerPartnership’s consent (which is not required for any renewal, extension, expansion or termination where the tenant under the applicable Lease or occupancy agreement or the licensee under the applicable License has the right, without landlord consent shall not be unreasonably withheld, conditioned or delayed), except in the case of emergencies to protect any property or person from damage or injury, Sellers Outstanding Lease Obligations, the Out-for Signature Leasing Costs, the Vacancy Leasing Costs (for which Buyer shall receive a credit at Closing), the capital expense projects identified on Exhibit N hereto and further provided that Buyerwith landlord’s consent shall not be required for, and Sellers shall be permitted to pay, any actual increase in property taxes, insurance premiums, or increased costs caused by any increase in any utility rates. Each Seller shall complete all work described on Exhibit N hereto pertaining to such Seller’s Property, and if the same is not completed prior to Closing, such Seller shall provide a credit to Buyer at Closing for the cost of completing such work.
(e) Sellers will keep in full force and effect with respect to the Properties policies of insurance providing coverage at least as extensive as that described in Exhibit Z.
(f) Unless to be discharged in full on or prior to the Closing Date with releases or discharges delivered contemporaneously with, or prior to, the Closing Date, Sellers shall not further encumber the Properties with any mortgage, deed of trust or similar security agreement. Furthermore, unless to be discharged in full on or prior to the Closing Date, Sellers shall not, without Buyer’s prior written approval not to be unreasonably withheld, conditioned under its Lease, License or delayed (ioccupancy agreement to such renewal, extension, expansion or termination. Further notwithstanding the foregoing, the leases described on Schedule 6.4(a)(ii) execute any easement agreements except those required in connection with ongoing development at a Property, and, (ii) unless otherwise permitted pursuant to are hereby preapproved on the terms of this Agreement, execute any other documents or agreements affecting title to the Properties.
(g) Notwithstanding any limitation set forth herein, Sellers may, without Buyer’s consent in such Schedule provided that the Contributors shall be responsible for the payment of all Tenant Inducement Costs and without cost to Buyer (unless otherwise set forth herein or unless otherwise approved by Buyer) (i) take such actions, if any, leasing commissions payable with respect to such leases on Schedule 6.4(a)(ii) but, if at the Propertiestime of Closing, reasonably necessary to comply with payment of a Tenant Inducement Cost that is the terms responsibility of the Leases Contributors is not yet due and any insurance requirements or payable to comply with laws, rules or regulations of any governmental authority, (ii) take such actions as they deem reasonably necessary to repair any insured or uninsured casualty or damage, and (iii) take such actions with respect to the Properties reasonably necessary to prevent loss of life, personal injury or property damage.
(h) Each of Buyer and the Seller of Parcel 29G (the “29G Seller”) acknowledges and agrees that 29G Seller will enter into separate contracts (collectivelyits corresponding tenant, the “29G Construction Contracts”) with responsible Contributor will give the following entities Partnership a credit for the construction of improvements on Parcel 29G: (i) Trinity Group Construction, Inc. (the general contractor), (ii) Metroplex Retaining Walls of Virginia, (iii) A▇▇▇▇▇▇▇ Site Contracting, Inc., and (iv) contracts with other entities reasonably required by 29G Seller for the construction of the improvements on Parcel 29G, each of which shall be subject to Buyer’s reasonable consent. The final form of the 29G Construction Contracts will be mutually agreeable to Buyer and 29G Seller. 29G Seller shall perform all of the obligations of the property owner under each of the 29G Construction Contracts from the Effective Date until the Closing Date, and, at Closing 29G Seller shall assign, and Buyer shall assume, all of 29G Seller’s obligations under the 29G Construction Contracts (which shall include, without limitation, all outstanding amounts owed and other liabilities thereunder). 29G Seller covenants to not modify any 29G Construction Contract without the prior consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. At Closing, (I) 29G Seller shall receive reimbursement for (A) the costs incurred as of the Effective Date by 29G Seller in connection with the development of the improvements on Parcel 29G (which costs are set forth on Exhibit DD attached hereto (the “29G Construction Costs”)), and (B) any additional costs incurred by 29G Seller in connection with the construction of the 29G Building between the Effective Date and the Closing Date, including those costs incurred under the 29G Construction Contracts, are otherwise consistent with the 29G budget posted in the War Room as of the Effective Date, or are reasonably approved by Buyer (collectively, the “29G Construction Costs”), and (II) The W▇▇▇▇▇▇ Family Trust (the “Trust”) and Buyer shall enter into a master lease payment agreement for the building being constructed on Parcel 29G corresponding amount in the form of Exhibit EE attached hereto.a reduction of the Net Consideration otherwise receivable by that Contributor; and
(iiii) Each shall not remove from any Property any material item of Buyer Personal Property and included in the Seller transfer, unless such item, in each case, is replaced with an item of Parcel 20 located in TransDulles Centre (the “Parcel 20 Seller”) acknowledge comparable or better utility and agree that Parcel 20 Seller has entered into a letter of intent with, and is currently negotiating a build-to-suit lease with Universal Technical Institute or its affiliate (collectively “UTI”) for approximately 150,000 rentable square feet of space (the “Parcel 20 Minimum Space”) within a building to be constructed on a portion of the Parcel 20 Land (the “Parcel 20 Building”). In the event UTI and Parcel 20 Seller terminate negotiations, Parcel 20 Seller shall market the Parcel 20 Building and seek to enter into one or more leases for no less than the Parcel 20 Minimumvalue.
Appears in 1 contract
Operation of the Properties. 13.1 Between the Effective Date date hereof and the Closing Date:
(a) Subject , Seller agrees to Sections 15.1(b), (c), (d), (e), (f), (g), (h) and (i), Sellers shall continue to operate and maintain the Properties and to purchase supplies for manage the Properties in substantially the ordinary course same manner as it did prior to the execution and delivery of business in accordance with present business practices. In no event shall Sellers be obligated to Buyer, however, to expend any sums to correct any violations, or make any capital improvements or repairs to capital improvements, or to otherwise cause the Properties to be in compliance with any law, regulation or ordinance.
(b) Except as otherwise expressly provided in this Agreement, Sellers including preserving the good will of all suppliers and tenants. In connection therewith:
(A) Seller may notnot modify, without extend, renew, cancel, terminate, or permit the prior written consent expiration of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), (i) cancel or terminate any Lease (other than for a default thereunder by a party other than any Seller), (ii) renew or extend any Lease (other than in accordance with on the leasing guidelines for each Property annexed as Exhibit Y, or pursuant to the terms of options or extensions set forth in any existing Lease) or (iii) enter into any new lease other than in accordance with the leasing guidelines for each Property annexed as Exhibit Y. Each such Seller shall have the right to s▇▇ Tenants and to collect such delinquencies, but no action shall be taken to dispossess any such Tenant following Closing. Seller shall be entitled to any monetary awards resulting such suits (less reasonable allocation of costs and expenses for attorneys’ fees) for Rents pertaining to the three month period prior to the Closing Date, and for operating expense delinquencies applicable to any period of time prior to the Closing Date. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1(b), which notice shall include the material terms of the proposed action.
(c) Except as otherwise expressly expiration date provided in this Agreement, Sellers may not, without the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayedsame), cancel, terminate, renew, extend or modify in any material respect any of the Service Contracts, or enter into any new service contract or equipment proposed lease for of all or any portion of the Properties unlessProperties, in the case of any such cancellation or terminationwithout Purchaser's consent, a new service contract or equipment lease on substantially similar or more favorable terms is entered into and the same is terminable upon thirty (30) days’ notice orand, in the case of any extension or renewal of a Service Contract or entering into of any new service contract or equipment lease, the same may be terminated on not more than thirty (30) days notice. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1 (c), which notice shall include the material terms of the proposed action as well as a request for Buyer’s consent thereto if such consent is required by the terms of the foregoing provisions of this Subsection (c). If Buyer does not respond to requested, such notice within five (5) Business Days after receipt thereof, time being of the essence with respect thereto, Buyer shall be deemed to have consented to such actions, as set forth in Section 15.4 below.
(d) Sellers shall not make any expenditures with respect to the Properties which are not in the ordinary course of business in accordance with present business practices without Buyer’s consent (which consent shall not be unreasonably withheldwithheld and shall be given or denied, conditioned with the reasons for any such denial, within the applicable period specified in this Section 13.1(a). If Seller enters into any permitted new Leases, or delayedif there is any permitted extension or renewal of any Leases, whether or not such Leases provide for their extension or renewal, or any expansion or modification of any Leases (each, a "NEW LEASE"), except in the case of emergencies to protect any property or person from damage or injury, Sellers Outstanding Lease Obligations, the Out-for Signature Leasing Costs, the Vacancy Leasing Costs (for which Buyer shall receive a credit at Closing), the capital expense projects identified on Exhibit N hereto and further provided that Buyer’s consent shall not be required for, and Sellers shall be permitted to pay, any actual increase in property taxes, insurance premiums, or increased costs caused by any increase in any utility rates. Each Seller shall complete keep accurate records of all work described on Exhibit N hereto pertaining to such Seller’s Propertyexpenses (collectively, and if the same is not completed prior to Closing, such Seller shall provide a credit to Buyer at Closing for the cost of completing such work.
(e"NEW LEASE EXPENSES") Sellers will keep in full force and effect with respect to the Properties policies of insurance providing coverage at least as extensive as that described in Exhibit Z.
(f) Unless to be discharged in full on or prior to the Closing Date with releases or discharges delivered contemporaneously with, or prior to, the Closing Date, Sellers shall not further encumber the Properties with any mortgage, deed of trust or similar security agreement. Furthermore, unless to be discharged in full on or prior to the Closing Date, Sellers shall not, without Buyer’s prior written approval not to be unreasonably withheld, conditioned or delayed (i) execute any easement agreements except those required incurred in connection with ongoing development at a Property, and, (ii) unless otherwise permitted pursuant each New Lease. The New Lease Expenses for each New Lease allocable to the terms of this Agreement, execute any other documents or agreements affecting title to the Properties.
(g) Notwithstanding any limitation set forth herein, Sellers may, without Buyer’s consent and without cost to Buyer (unless otherwise set forth herein or unless otherwise approved payable by Buyer) (i) take such actions, if any, with respect to the Properties, reasonably necessary to comply with the terms of the Leases and any insurance requirements or to comply with laws, rules or regulations of any governmental authority, (ii) take such actions as they deem reasonably necessary to repair any insured or uninsured casualty or damage, and (iii) take such actions with respect to the Properties reasonably necessary to prevent loss of life, personal injury or property damage.
(h) Each of Buyer and the Seller of Parcel 29G (the “29G Seller”) acknowledges and agrees that 29G Seller will enter into separate contracts (collectively, the “29G Construction Contracts”) with the following entities for the construction of improvements on Parcel 29G: (i) Trinity Group Construction, Inc. (the general contractor), (ii) Metroplex Retaining Walls of Virginia, (iii) A▇▇▇▇▇▇▇ Site Contracting, Inc., and (iv) contracts with other entities reasonably required by 29G Seller for the construction of the improvements on Parcel 29G, each of which shall be subject to Buyer’s reasonable consent. The final form determined by multiplying the amount of the 29G Construction Contracts will be mutually agreeable to Buyer and 29G Seller. 29G Seller shall perform all of the obligations of the property owner under each of the 29G Construction Contracts from the Effective Date until the Closing Date, and, at Closing 29G Seller shall assign, and Buyer shall assume, all of 29G Seller’s obligations under the 29G Construction Contracts (which shall include, without limitation, all outstanding amounts owed and other liabilities thereunder). 29G Seller covenants to not modify any 29G Construction Contract without the prior consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. At Closing, (I) 29G Seller shall receive reimbursement for (A) the costs incurred as of the Effective Date such New Lease Expenses by 29G Seller in connection with the development of the improvements on Parcel 29G (which costs are set forth on Exhibit DD attached hereto (the “29G Construction Costs”)), and (B) any additional costs incurred by 29G Seller in connection with the construction of the 29G Building between the Effective Date and the Closing Date, including those costs incurred under the 29G Construction Contracts, are otherwise consistent with the 29G budget posted in the War Room as of the Effective Date, or are reasonably approved by Buyer (collectively, the “29G Construction Costs”), and (II) The W▇▇▇▇▇▇ Family Trust (the “Trust”) and Buyer shall enter into a master lease payment agreement for the building being constructed on Parcel 29G in the form of Exhibit EE attached hereto.
(i) Each of Buyer and the Seller of Parcel 20 located in TransDulles Centre (the “Parcel 20 Seller”) acknowledge and agree that Parcel 20 Seller has entered into a letter of intent with, and is currently negotiating a build-to-suit lease with Universal Technical Institute or its affiliate (collectively “UTI”) for approximately 150,000 rentable square feet of space (the “Parcel 20 Minimum Space”) within a building to be constructed on a portion of the Parcel 20 Land (the “Parcel 20 Building”). In the event UTI and Parcel 20 Seller terminate negotiations, Parcel 20 Seller shall market the Parcel 20 Building and seek to enter into one or more leases for no less than the Parcel 20 Minimumfraction,
Appears in 1 contract
Operation of the Properties. Between the Effective Date and the Closing Date:
(a) Subject to Sections 15.1(b), (c), (d), (e), (f), (g), (h) and (i), Sellers Borrower shall continue to operate and maintain the Properties and to purchase supplies for the Properties in the ordinary course cause each of business in accordance with present business practices. In no event shall Sellers be obligated to Buyer, however, to expend any sums to correct any violations, or make any capital improvements or repairs to capital improvements, or to otherwise cause the Properties to be leased to the Lessee pursuant to the Operating Lease and managed by Lessee or by Manager pursuant to the Management Agreements (or such other third-party managers approved by Lender pursuant to management agreements approved as to form and substance by and in compliance with all respects acceptable to Lender). Notwithstanding the foregoing, in the event that (A) there shall have occurred and be continuing an Event of Default or (B) on the last day of any lawcalendar quarter, regulation or ordinance.
the Debt Service Coverage Ratio (busing Actual Net Operating Income) Except is less than 1.40 to 1.00, then, except as otherwise expressly provided in this Agreementhereinafter provided, Sellers Lender may not, without the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), instruct Borrower to (i) cancel terminate the Operating Lease with respect to any or terminate any Lease (other than for a default thereunder by a party other than any Seller), all of the Properties and/or (ii) renew except as otherwise provided in the Management Agreements, cause Lessee to terminate the Management Agreement with respect to any or extend any Lease (other than in accordance with all of the leasing guidelines for each Property annexed Marriott Managed Properties, and may designate either a replacement lessee or a hotel manager, as Exhibit Ythe case may be, or acceptable to Lender and willing to operate the Properties pursuant to terms and conditions and pursuant to an Operating Lease or management agreement approved by Lender, and except as hereinafter otherwise provided, Borrower shall so terminate the terms Operating Lease and/or cause Lessee to terminate the Management Agreement(s) and appoint or cause the appointment of options such replacement lessee or extensions set forth in any existing Lease) or manager. No Individual Borrower shall (iiiand no Individual Borrower shall permit Lessee to) enter into any new operating lease other than or property management agreement in accordance with respect of any Property without Lender's prior written consent and unless any such agreement contains a provision permitting such agreement to be terminated as contemplated above and unless such replacement operator or manager executes an agreement substantially similar (and otherwise in form and substance satisfactory to Lender) to the leasing guidelines for each Property annexed Lessee Subordination or the Manager Subordination, as Exhibit Y. Each such Seller the case may be. Lender shall not have the right to s▇▇ Tenants and to collect such delinquencies, but no action shall be taken to dispossess any such Tenant following Closing. Seller shall be entitled to any monetary awards resulting such suits (less reasonable allocation of costs and expenses for attorneys’ fees) for Rents pertaining to require the three month period prior to the Closing Date, and for operating expense delinquencies applicable to any period of time prior to the Closing Date. Each Seller shall give Buyer written notice prior to taking any termination of the actions referred to Operating Lease or any Management Agreement under the circumstances described in this Section 15.1(b), which notice the foregoing clause (B) if (x) no Event of Default shall include have occurred or be continuing and (y) within ten Business Days after the material terms end of the proposed action.
(c) Except as otherwise expressly provided in this Agreement, Sellers may not, without the prior written consent of Buyer in each instance (calendar quarter for which consent such circumstances have arisen. Borrower shall not be unreasonably withheld, conditioned or delayed), cancel, terminate, renew, extend or modify in any material respect any of the Service Contracts, or enter into any new service contract or equipment lease for all or any defease a 40 portion of the Properties unless, in the case of any such cancellation or termination, a new service contract or equipment lease on substantially similar or more favorable terms is entered into and the same is terminable upon thirty (30) days’ notice or, in the case of any extension or renewal of a Service Contract or entering into of any new service contract or equipment lease, the same may be terminated on not more than thirty (30) days notice. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1 (c), which notice shall include the material terms of the proposed action as well as a request for Buyer’s consent thereto if such consent is required by the terms of the foregoing provisions of this Subsection (c). If Buyer does not respond to such notice within five (5) Business Days after receipt thereof, time being of the essence with respect thereto, Buyer shall be deemed to have consented to such actions, as set forth in Section 15.4 below.
(d) Sellers shall not make any expenditures with respect to the Properties which are not in the ordinary course of business Loan in accordance with present business practices without Buyer’s consent Section 2.3.3 sufficient to produce a Debt Service Coverage Ratio (which consent shall not be unreasonably withheld, conditioned or delayed), except in using Actual Net Operating Income) on the case of emergencies to protect any property or person from damage or injury, Sellers Outstanding Lease Obligations, the Out-for Signature Leasing Costs, the Vacancy Leasing Costs (for which Buyer shall receive a credit at Closing), the capital expense projects identified on Exhibit N hereto and further provided that Buyer’s consent shall not be required for, and Sellers shall be permitted to pay, any actual increase in property taxes, insurance premiums, or increased costs caused by any increase in any utility rates. Each Seller shall complete all work described on Exhibit N hereto pertaining to such Seller’s Property, and if the same is not completed prior to Closing, such Seller shall provide a credit to Buyer at Closing for the cost of completing such work.
(e) Sellers will keep in full force and effect with respect to the Properties policies of insurance providing coverage at least as extensive as that described in Exhibit Z.
(f) Unless to be discharged in full on or prior to the Closing Date with releases or discharges delivered contemporaneously with, or prior to, the Closing Date, Sellers shall not further encumber the Properties with any mortgage, deed of trust or similar security agreement. Furthermore, unless to be discharged in full on or prior to the Closing Date, Sellers shall not, without Buyer’s prior written approval not to be unreasonably withheld, conditioned or delayed (i) execute any easement agreements except those required in connection with ongoing development at a Property, and, (ii) unless otherwise permitted pursuant to the terms of this Agreement, execute any other documents or agreements affecting title to the Properties.
(g) Notwithstanding any limitation set forth herein, Sellers may, without Buyer’s consent and without cost to Buyer (unless otherwise set forth herein or unless otherwise approved by Buyer) (i) take such actions, if any, with respect to the Properties, reasonably necessary to comply with the terms of the Leases and any insurance requirements or to comply with laws, rules or regulations of any governmental authority, (ii) take such actions as they deem reasonably necessary to repair any insured or uninsured casualty or damage, and (iii) take such actions with respect to the Properties reasonably necessary to prevent loss of life, personal injury or property damage.
(h) Each of Buyer and the Seller of Parcel 29G (the “29G Seller”) acknowledges and agrees that 29G Seller will enter into separate contracts (collectively, the “29G Construction Contracts”) with the following entities for the construction of improvements on Parcel 29G: (i) Trinity Group Construction, Inc. (the general contractor), (ii) Metroplex Retaining Walls of Virginia, (iii) A▇▇▇▇▇▇▇ Site Contracting, Inc., and (iv) contracts with other entities reasonably required by 29G Seller for the construction of the improvements on Parcel 29G, each of which shall be subject to Buyer’s reasonable consent. The final form of the 29G Construction Contracts will be mutually agreeable to Buyer and 29G Seller. 29G Seller shall perform all of the obligations of the property owner under each of the 29G Construction Contracts from the Effective Date until the Closing Date, and, at Closing 29G Seller shall assign, and Buyer shall assume, all of 29G Seller’s obligations under the 29G Construction Contracts (which shall include, without limitation, all outstanding amounts owed and other liabilities thereunder). 29G Seller covenants to not modify any 29G Construction Contract without the prior consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. At Closing, (I) 29G Seller shall receive reimbursement for (A) the costs incurred as of the Effective Date by 29G Seller in connection with the development of the improvements on Parcel 29G (which costs are set forth on Exhibit DD attached hereto (the “29G Construction Costs”)), and (B) any additional costs incurred by 29G Seller in connection with the construction of the 29G Building between the Effective Date and the Closing Date, including those costs incurred under the 29G Construction Contracts, are otherwise consistent with the 29G budget posted in the War Room as of the Effective Date, or are reasonably approved by Buyer (collectively, the “29G Construction Costs”), and (II) The W▇▇▇▇▇▇ Family Trust (the “Trust”) and Buyer shall enter into a master lease payment agreement for the building being constructed on Parcel 29G in the form of Exhibit EE attached hereto.
(i) Each of Buyer and the Seller of Parcel 20 located in TransDulles Centre (the “Parcel 20 Seller”) acknowledge and agree that Parcel 20 Seller has entered into a letter of intent with, and is currently negotiating a build-to-suit lease with Universal Technical Institute or its affiliate (collectively “UTI”) for approximately 150,000 rentable square feet of space (the “Parcel 20 Minimum Space”) within a building to be constructed on a undefeased portion of the Parcel 20 Land (the “Parcel 20 Building”). In the event UTI and Parcel 20 Seller terminate negotiations, Parcel 20 Seller shall market the Parcel 20 Building and seek Loan equal to enter into one or more leases for no less than the Parcel 20 Minimumat least 1.40 to 1.00.
Appears in 1 contract
Operation of the Properties. Between the Effective Date and the Closing Date:
Borrower shall (a) Subject to Sections 15.1(b), (c), (d), (e), (f), (g), (h) and (i), Sellers shall continue to operate and maintain cause each of the Properties and to purchase supplies for the Properties in the ordinary course of business in accordance with present business practices. In no event shall Sellers be obligated to Buyer, however, to expend any sums to correct any violations, or make any capital improvements or repairs to capital improvements, or to otherwise cause the JF Properties to be in compliance with any law, regulation or ordinance.
leased to the JF Lessee pursuant to the JF Operating Leases and (b) Except cause the Summerfield Properties to be leased to Summerfield Lessee pursuant to the Summerfield Operating Leases and managed by Summerfield Lessee or by Manager pursuant to the Management Agreements (or such other third-party managers approved by Lender pursuant to management agreements approved as otherwise expressly provided to form and substance by and in this Agreementall respects acceptable to Lender). Notwithstanding the foregoing, Sellers in the event that (A) there shall have occurred and be continuing an Event of Default or (B) on the last day of any calendar quarter, the Debt Service Coverage Ratio (using Actual Net Operating Income) is less than 1.40 to 1.00, then, except as hereinafter provided, Lender may not, without the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), instruct Borrower to (i) cancel terminate the JF Operating Leases with respect to any or terminate any Lease (other than for a default thereunder by a party other than any Seller), all of the JF Properties and/or (ii) renew except as otherwise provided in the Summerfield Subordinations, terminate the Summerfield Operating Leases and/or cause Summerfield Lessee to terminate the Management Agreements with respect to any or extend any Lease all of the Summerfield Properties, and/or (other than in accordance with iii) may designate either a replacement lessee or a hotel manager, as the leasing guidelines for each Property annexed as Exhibit Ycase may be, or acceptable to Lender and willing to operate the applicable Properties pursuant to terms and conditions and pursuant to operating leases or management agreements approved by Lender, and, except as hereinafter otherwise provided, Borrower shall so terminate the terms applicable Operating Leases and/or cause Summerfield Lessee to terminate the Management Agreements and appoint or cause the appointment of options such replacement lessee or extensions set forth in any existing Lease) or manager. No Individual Borrower shall (iiiand no Individual Borrower shall permit Lessee to) enter into any new operating lease other than or property management agreement in accordance with respect of any Property without Lender's prior written consent and unless any such agreement contains a provision permitting such agreement to be terminated as contemplated above and unless such replacement operator or manager executes an agreement substantially similar (and otherwise in form and substance satisfactory to Lender) to the leasing guidelines for each Property annexed as Exhibit Y. Each such Seller Lessee Subordination. Lender shall not have the right to s▇▇ Tenants and to collect such delinquencies, but no action shall be taken to dispossess require the termination of any such Tenant following Closing. Seller shall be entitled to any monetary awards resulting such suits (less reasonable allocation of costs and expenses for attorneys’ fees) for Rents pertaining to the three month period prior to the Closing Date, and for operating expense delinquencies applicable to any period of time prior to the Closing Date. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1(b), which notice shall include the material terms of the proposed action.
(c) Except as otherwise expressly provided in this Agreement, Sellers may not, without the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), cancel, terminate, renew, extend or modify in any material respect any of the Service Contracts, or enter into any new service contract or equipment lease for all Operating Lease or any portion of Management Agreement under the Properties unless, circumstances described in the case foregoing clause (B) if (x) no Event of any such cancellation Default shall have occurred or termination, a new service contract or equipment lease on substantially similar or more favorable terms is entered into be continuing and the same is terminable upon thirty (30y) days’ notice or, in the case of any extension or renewal of a Service Contract or entering into of any new service contract or equipment lease, the same may be terminated on not more than thirty (30) days notice. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1 (c), which notice shall include the material terms of the proposed action as well as a request for Buyer’s consent thereto if such consent is required by the terms of the foregoing provisions of this Subsection (c). If Buyer does not respond to such notice within five (5) ten Business Days after receipt thereof, time being the end of the essence with respect thereto, Buyer shall be deemed to have consented to such actions, as set forth in Section 15.4 below.
(d) Sellers shall not make any expenditures with respect to the Properties which are not in the ordinary course of business in accordance with present business practices without Buyer’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), except in the case of emergencies to protect any property or person from damage or injury, Sellers Outstanding Lease Obligations, the Out-for Signature Leasing Costs, the Vacancy Leasing Costs (calendar quarter for which Buyer such circumstances have arisen, Borrower shall receive a credit at Closing), the capital expense projects identified on Exhibit N hereto and further provided that Buyer’s consent shall not be required for, and Sellers shall be permitted to pay, any actual increase in property taxes, insurance premiums, or increased costs caused by any increase in any utility rates. Each Seller shall complete all work described on Exhibit N hereto pertaining to such Seller’s Property, and if the same is not completed prior to Closing, such Seller shall provide a credit to Buyer at Closing for the cost of completing such work.
(e) Sellers will keep in full force and effect with respect to the Properties policies of insurance providing coverage at least as extensive as that described in Exhibit Z.
(f) Unless to be discharged in full on or prior to the Closing Date with releases or discharges delivered contemporaneously with, or prior to, the Closing Date, Sellers shall not further encumber the Properties with any mortgage, deed of trust or similar security agreement. Furthermore, unless to be discharged in full on or prior to the Closing Date, Sellers shall not, without Buyer’s prior written approval not to be unreasonably withheld, conditioned or delayed (i) execute any easement agreements except those required in connection with ongoing development at a Property, and, (ii) unless otherwise permitted pursuant to the terms of this Agreement, execute any other documents or agreements affecting title to the Properties.
(g) Notwithstanding any limitation set forth herein, Sellers may, without Buyer’s consent and without cost to Buyer (unless otherwise set forth herein or unless otherwise approved by Buyer) (i) take such actions, if any, with respect to the Properties, reasonably necessary to comply with the terms of the Leases and any insurance requirements or to comply with laws, rules or regulations of any governmental authority, (ii) take such actions as they deem reasonably necessary to repair any insured or uninsured casualty or damage, and (iii) take such actions with respect to the Properties reasonably necessary to prevent loss of life, personal injury or property damage.
(h) Each of Buyer and the Seller of Parcel 29G (the “29G Seller”) acknowledges and agrees that 29G Seller will enter into separate contracts (collectively, the “29G Construction Contracts”) with the following entities for the construction of improvements on Parcel 29G: (i) Trinity Group Construction, Inc. (the general contractor), (ii) Metroplex Retaining Walls of Virginia, (iii) A▇▇▇▇▇▇▇ Site Contracting, Inc., and (iv) contracts with other entities reasonably required by 29G Seller for the construction of the improvements on Parcel 29G, each of which shall be subject to Buyer’s reasonable consent. The final form of the 29G Construction Contracts will be mutually agreeable to Buyer and 29G Seller. 29G Seller shall perform all of the obligations of the property owner under each of the 29G Construction Contracts from the Effective Date until the Closing Date, and, at Closing 29G Seller shall assign, and Buyer shall assume, all of 29G Seller’s obligations under the 29G Construction Contracts (which shall include, without limitation, all outstanding amounts owed and other liabilities thereunder). 29G Seller covenants to not modify any 29G Construction Contract without the prior consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. At Closing, (I) 29G Seller shall receive reimbursement for (A) the costs incurred as of the Effective Date by 29G Seller in connection with the development of the improvements on Parcel 29G (which costs are set forth on Exhibit DD attached hereto (the “29G Construction Costs”)), and (B) any additional costs incurred by 29G Seller in connection with the construction of the 29G Building between the Effective Date and the Closing Date, including those costs incurred under the 29G Construction Contracts, are otherwise consistent with the 29G budget posted in the War Room as of the Effective Date, or are reasonably approved by Buyer (collectively, the “29G Construction Costs”), and (II) The W▇▇▇▇▇▇ Family Trust (the “Trust”) and Buyer shall enter into a master lease payment agreement for the building being constructed on Parcel 29G in the form of Exhibit EE attached hereto.
(i) Each of Buyer and the Seller of Parcel 20 located in TransDulles Centre (the “Parcel 20 Seller”) acknowledge and agree that Parcel 20 Seller has entered into a letter of intent with, and is currently negotiating a build-to-suit lease with Universal Technical Institute or its affiliate (collectively “UTI”) for approximately 150,000 rentable square feet of space (the “Parcel 20 Minimum Space”) within a building to be constructed on defease a portion of the Parcel 20 Land Loan in accordance with Section 2.3.3 sufficient to produce a Debt Service Coverage Ratio (using Actual Net Operating Income) on the “Parcel 20 Building”). In undefeased portion of the event UTI and Parcel 20 Seller terminate negotiations, Parcel 20 Seller shall market the Parcel 20 Building and seek Loan equal to enter into one or more leases for no less than the Parcel 20 Minimumat least 1.40 to 1.00.
Appears in 1 contract
Operation of the Properties. (a) Between the Effective Date date hereof and the Closing Date:
(a) Subject to Sections 15.1(b), (c), (d), (e), (f), (g), (h) and (i), Sellers shall continue to operate and maintain the Properties and to purchase supplies for the Properties in the ordinary course of business in accordance with present business practices. In no event shall Sellers be obligated to Buyer, however, to expend any sums to correct any violations, or make any capital improvements or repairs to capital improvements, or to otherwise cause the Properties to be in compliance with any law, regulation or ordinance.
(b) Except During the period between the Due Diligence Period and the Closing Date, except as otherwise expressly provided in this Agreement, with respect to the Occupied Leases, Sellers may not, without the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), (i) cancel or terminate any Lease (other than for a material default thereunder by a party other than any Seller), (ii) amend or modify any Lease in any respect, (iii) renew or extend any Lease (other than in accordance with the leasing guidelines for each Property annexed as Exhibit Y, or pursuant to the terms existing renewal or extension options in favor of options Tenants), and (iv) apply any Security Deposit of any tenant under a Lease for a delinquency or extensions default by such tenant (all such activity set forth in any existing Leasethis Section 15.1(b) or (iii) enter into any new lease other than in accordance with the leasing guidelines for each Property annexed as Exhibit Y. Each such Seller shall have the right to s▇▇ Tenants and to collect such delinquencies, but no action shall be taken to dispossess any such Tenant following Closingcalled, “Leasing Activity”). Seller shall be entitled to any monetary awards resulting such suits (less reasonable allocation of costs Between the date hereof and expenses for attorneys’ fees) for Rents pertaining to the three month period prior to the Closing Date, and for operating expense delinquencies applicable to any period of time prior to the Closing Date. Each each Seller shall give Buyer written notice (via the email address as set forth in Section 17.1 below) prior to taking doing any of the actions Leasing Activity referred to in this Section 15.1(b), which notice shall include the material terms of the proposed action.
(c) Except Leasing Activity as otherwise expressly provided in this Agreementwell as, Sellers may not, without if after the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), cancel, terminate, renew, extend or modify in any material respect any expiration of the Service ContractsDue Diligence Period, or enter into any new service contract or equipment lease for all or any portion of the Properties unless, in the case of any such cancellation or termination, a new service contract or equipment lease on substantially similar or more favorable terms is entered into and the same is terminable upon thirty (30) days’ notice or, in the case of any extension or renewal of a Service Contract or entering into of any new service contract or equipment lease, the same may be terminated on not more than thirty (30) days notice. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1 (c), which notice shall include the material terms of the proposed action as well as a request for Buyer’s consent thereto if such thereto. If Buyer’s consent is required by the terms of the foregoing provisions of this Subsection (c). If and Buyer does not respond to such notice Seller’s request for consent to its Leasing Activity within five ten (510) Business Days after receipt thereof, time being of the essence with respect thereto, Buyer shall be deemed to have consented to such actionsLeasing Activity. Notwithstanding the foregoing, as each Seller shall have the right, without the prior consent of Buyer, to enter into (1) leases for the Earnout Spaces and the Master Lease Space; provided, however, that after the Due Diligence Period, such leases for Earnout Spaces and the Master Lease Spaces shall be in accordance with the requirements set forth in Section 15.4 below4.3(b) and Section 4.4(a) respectively, and (2) any contract which can be terminated upon thirty (30) days written notice.
(d) Sellers shall not make any expenditures with respect to the Properties which are not in the ordinary course of business in accordance with present business practices without Buyer’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), except in the case of emergencies to protect any property or person from damage or injury, Sellers Outstanding Lease Obligations, the Out-for Signature Leasing Costs, the Vacancy Leasing Costs (for which Buyer shall receive a credit at Closing), the capital expense projects identified on Exhibit N hereto and further provided that Buyer’s consent shall not be required for, and Sellers shall be permitted to pay, any actual increase in property taxes, insurance premiums, or increased costs caused by any increase in any utility rates. Each Seller shall complete all work described on Exhibit N hereto pertaining to such Seller’s Property, and if the same is not completed prior to Closing, such Seller shall provide a credit to Buyer at Closing for the cost of completing such work.
(e) Sellers will keep in full force and effect with respect to the Properties policies of insurance providing coverage at least as extensive as that described in Exhibit Z.
(f) Unless to be discharged in full on or prior to the Closing Date with releases or discharges delivered contemporaneously with, or prior to, the Closing Date, Sellers shall not further encumber the Properties with any mortgage, deed of trust or similar security agreement. Furthermore, unless to be discharged in full on or prior to the Closing Date, Sellers shall not, without Buyer’s prior written approval not to be unreasonably withheld, conditioned or delayed (i) execute any easement agreements except those required in connection with ongoing development at a Property, and, (ii) unless otherwise permitted pursuant to the terms of this Agreement, execute any other documents or agreements affecting title to the Properties.
(gc) Notwithstanding any limitation set forth herein, Sellers may, without Buyer’s consent and without cost to Buyer (unless otherwise set forth herein or unless otherwise approved by Buyer) (i) take such actions, if any, with respect to the Properties, reasonably necessary to comply with the terms of the Leases Leases, and any insurance requirements or to comply with laws, rules or regulations of any governmental authority, (ii) take such actions as they deem it deems reasonably necessary to repair any insured or uninsured casualty or damage, and (iii) take such actions with respect to the Properties reasonably necessary to prevent loss of life, personal injury or property damage.
(h) Each of Buyer and the Seller of Parcel 29G (the “29G Seller”) acknowledges and agrees that 29G Seller will enter into separate contracts (collectively, the “29G Construction Contracts”) with the following entities for the construction of improvements on Parcel 29G: (i) Trinity Group Construction, Inc. (the general contractor), (ii) Metroplex Retaining Walls of Virginia, (iii) A▇▇▇▇▇▇▇ Site Contracting, Inc., and (iv) contracts with other entities reasonably required by 29G Seller for the construction of the improvements on Parcel 29G, each of which shall be subject to Buyer’s reasonable consent. The final form of the 29G Construction Contracts will be mutually agreeable to Buyer and 29G Seller. 29G Seller shall perform all of the obligations of the property owner under each of the 29G Construction Contracts from the Effective Date until the Closing Date, and, at Closing 29G Seller shall assign, and Buyer shall assume, all of 29G Seller’s obligations under the 29G Construction Contracts (which shall include, without limitation, all outstanding amounts owed and other liabilities thereunder). 29G Seller covenants to not modify any 29G Construction Contract without the prior consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. At Closing, (I) 29G Seller shall receive reimbursement for (A) the costs incurred as of the Effective Date by 29G Seller in connection with the development of the improvements on Parcel 29G (which costs are set forth on Exhibit DD attached hereto (the “29G Construction Costs”)), and (B) any additional costs incurred by 29G Seller in connection with the construction of the 29G Building between the Effective Date and the Closing Date, including those costs incurred under the 29G Construction Contracts, are otherwise consistent with the 29G budget posted in the War Room as of the Effective Date, or are reasonably approved by Buyer (collectively, the “29G Construction Costs”), and (II) The W▇▇▇▇▇▇ Family Trust (the “Trust”) and Buyer shall enter into a master lease payment agreement for the building being constructed on Parcel 29G in the form of Exhibit EE attached hereto.
(i) Each of Buyer and the Seller of Parcel 20 located in TransDulles Centre (the “Parcel 20 Seller”) acknowledge and agree that Parcel 20 Seller has entered into a letter of intent with, and is currently negotiating a build-to-suit lease with Universal Technical Institute or its affiliate (collectively “UTI”) for approximately 150,000 rentable square feet of space (the “Parcel 20 Minimum Space”) within a building to be constructed on a portion of the Parcel 20 Land (the “Parcel 20 Building”). In the event UTI and Parcel 20 Seller terminate negotiations, Parcel 20 Seller shall market the Parcel 20 Building and seek to enter into one or more leases for no less than the Parcel 20 Minimum
Appears in 1 contract
Operation of the Properties. Between the Effective Date and the Closing Date:
(a) Subject to Sections 15.1(b), (c), (d), (e), (f), (g), (h) and (i), Sellers shall continue to operate and maintain the Properties and to purchase supplies for the Properties in the ordinary course of business in accordance with present business practices. In no event shall Sellers be obligated to Buyer, however, to expend any sums to correct any violations, or make any capital improvements or repairs to capital improvements, or to otherwise cause the Properties to be in compliance with any law, regulation or ordinance.
(b) Except as otherwise expressly provided in this Agreement, Sellers may not, without the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), (i) cancel or terminate any Lease (other than for a default thereunder by a party other than any Seller), (ii) renew or extend any Lease (other than in accordance with the leasing guidelines for each Property annexed as Exhibit Y, or pursuant to the terms of options or extensions set forth in any existing Lease) or (iii) enter into any new lease other than in accordance with the leasing guidelines for each Property annexed as Exhibit Y. Each such Seller shall have the right to s▇▇▇ Tenants and to collect such delinquencies, but no action shall be taken to dispossess any such Tenant following Closing. Seller shall be entitled to any monetary awards resulting such suits (less reasonable allocation of costs and expenses for attorneys’ fees) for Rents pertaining to the three month period prior to the Closing Date, and for operating expense delinquencies applicable to any period of time prior to the Closing Date. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1(b), which notice shall include the material terms of the proposed action.
(c) Except as otherwise expressly provided in this Agreement, Sellers may not, without the prior written consent of Buyer in each instance (which consent shall not be unreasonably withheld, conditioned or delayed), cancel, terminate, renew, extend or modify in any material respect any of the Service Contracts, or enter into any new service contract or equipment lease for all or any portion of the Properties unless, in the case of any such cancellation or termination, a new service contract or equipment lease on substantially similar or more favorable terms is entered into and the same is terminable upon thirty (30) days’ notice or, in the case of any extension or renewal of a Service Contract or entering into of any new service contract or equipment lease, the same may be terminated on not more than thirty (30) days notice. Each Seller shall give Buyer written notice prior to taking any of the actions referred to in this Section 15.1 (c), which notice shall include the material terms of the proposed action as well as a request for Buyer’s consent thereto if such consent is required by the terms of the foregoing provisions of this Subsection (c). If Buyer does not respond to such notice within five (5) Business Days after receipt thereof, time being of the essence with respect thereto, Buyer shall be deemed to have consented to such actions, as set forth in Section 15.4 below.
(d) Sellers shall not make any expenditures with respect to the Properties which are not in the ordinary course of business in accordance with present business practices without Buyer’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), except in the case of emergencies to protect any property or person from damage or injury, Sellers Outstanding Lease Obligations, the Out-for Signature Leasing Costs, the Vacancy Leasing Costs (for which Buyer shall receive a credit at Closing), the capital expense projects identified on Exhibit N hereto and further provided that Buyer’s consent shall not be required for, and Sellers shall be permitted to pay, any actual increase in property taxes, insurance premiums, or increased costs caused by any increase in any utility rates. Each Seller shall complete all work described on Exhibit N hereto pertaining to such Seller’s Property, and if the same is not completed prior to Closing, such Seller shall provide a credit to Buyer at Closing for the cost of completing such work.
(e) Sellers will keep in full force and effect with respect to the Properties policies of insurance providing coverage at least as extensive as that described in Exhibit Z.
(f) Unless to be discharged in full on or prior to the Closing Date with releases or discharges delivered contemporaneously with, or prior to, the Closing Date, Sellers shall not further encumber the Properties with any mortgage, deed of trust or similar security agreement. Furthermore, unless to be discharged in full on or prior to the Closing Date, Sellers shall not, without Buyer’s prior written approval not to be unreasonably withheld, conditioned or delayed (i) execute any easement agreements except those required in connection with ongoing development at a Property, and, (ii) unless otherwise permitted pursuant to the terms of this Agreement, execute any other documents or agreements affecting title to the Properties.
(g) Notwithstanding any limitation set forth herein, Sellers may, without Buyer’s consent and without cost to Buyer (unless otherwise set forth herein or unless otherwise approved by Buyer) (i) take such actions, if any, with respect to the Properties, reasonably necessary to comply with the terms of the Leases and any insurance requirements or to comply with laws, rules or regulations of any governmental authority, (ii) take such actions as they deem reasonably necessary to repair any insured or uninsured casualty or damage, and (iii) take such actions with respect to the Properties reasonably necessary to prevent loss of life, personal injury or property damage.
(h) Each of Buyer and the Seller of Parcel 29G (the “29G Seller”) acknowledges and agrees that 29G Seller will enter into separate contracts (collectively, the “29G Construction Contracts”) with the following entities for the construction of improvements on Parcel 29G: (i) Trinity Group Construction, Inc. (the general contractor), (ii) Metroplex Retaining Walls of Virginia, (iii) A▇▇▇▇▇▇▇▇ Site Contracting, Inc., and (iv) contracts with other entities reasonably required by 29G Seller for the construction of the improvements on Parcel 29G, each of which shall be subject to Buyer’s reasonable consent. The final form of the 29G Construction Contracts will be mutually agreeable to Buyer and 29G Seller. 29G Seller shall perform all of the obligations of the property owner under each of the 29G Construction Contracts from the Effective Date until the Closing Date, and, at Closing 29G Seller shall assign, and Buyer shall assume, all of 29G Seller’s obligations under the 29G Construction Contracts (which shall include, without limitation, all outstanding amounts owed and other liabilities thereunder). 29G Seller covenants to not modify any 29G Construction Contract without the prior consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. At Closing, (I) 29G Seller shall receive reimbursement for (A) the costs incurred as of the Effective Date by 29G Seller in connection with the development of the improvements on Parcel 29G (which costs are set forth on Exhibit DD attached hereto (the “29G Construction Costs”)), and (B) any additional costs incurred by 29G Seller in connection with the construction of the 29G Building between the Effective Date and the Closing Date, including those costs incurred under the 29G Construction Contracts, are otherwise consistent with the 29G budget posted in the War Room as of the Effective Date, or are reasonably approved by Buyer (collectively, the “29G Construction Costs”), and (II) The W▇▇▇▇▇▇▇ Family Trust (the “Trust”) and Buyer shall enter into a master lease payment agreement for the building being constructed on Parcel 29G in the form of Exhibit EE attached hereto.
(i) Each of Buyer and the Seller of Parcel 20 located in TransDulles Centre (the “Parcel 20 Seller”) acknowledge and agree that Parcel 20 Seller has entered into a letter of intent with, and is currently negotiating a build-to-suit lease with Universal Technical Institute or its affiliate (collectively “UTI”) for approximately 150,000 rentable square feet of space (the “Parcel 20 Minimum Space”) within a building to be constructed on a portion of the Parcel 20 Land (the “Parcel 20 Building”). In the event UTI and Parcel 20 Seller terminate negotiations, Parcel 20 Seller shall market the Parcel 20 Building and seek to enter into one or more leases for no less than the Parcel 20 Minimum
Appears in 1 contract
Sources: Commercial Multi Property Agreement of Purchase and Sale (Duke Realty Corp)