Pre-Closing. Between the date hereof and the Closing Date, except as contemplated by this Agreement or with the consent of Seller, Purchaser agrees that: i. Purchaser will not take any action inconsistent with its obligations under this agreement or which could hinder or delay the consummation of the transaction contemplated by this Agreement; ii. Within ten ( 10) days after its receipt of the UCC-1 Search Report, the Title Report and the Survey, Purchaser shall advise Seller in writing of its objections, if any, to each of the UCC-1 Search Report, the Title Report and the Survey. In the event Purchaser fails to notify Seller in writing of Purchaser's objections within said ten (10) day period, Purchaser shall be deemed to have waived its right to object. Within five (5) days of Seller's receipt of Purchaser's objections, Seller shall advise Purchaser whether it intends to correct the defects to which Purchaser has objected. Seller shall be obligated to act in good faith in responding to Purchaser's title objections. For purposes hereof, Seller shall be deemed to have failed to act in good faith if its refuses to correct any matter which is the subject of such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defects, Purchaser shall have five (5) days to advise Seller of its decision to close, notwithstanding the defects, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search Report, the Title Report or the Survey not objected to in accordance with the terms hereof shall be deemed accepted by Purchaser and to be "Permitted Exceptions" (herein so called). Notwithstanding anything contained herein to the contrary, in the event Seller requires additional time to prepare either the Survey or the Title Report, then Seller shall have such additional time to deliver the same to Purchaser, however, in no event shall such extension be longer than fifteen ( 15) additional days; iii. Purchaser will proceed with all due diligence to obtain all consents and approvals necessary to permit the consummation of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own and to operate the Facility, including, but not limited to, a license from the Florida Department of Health and Rehabilitative Services; iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date of this Agreement with respect to the Stock, the Corporation's Assets and the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of the Corporation's and the Facility's books and records and operations, including a review of the licensure files maintained by the State of Florida with respect to the Facility to the extent the same are publicly available, and structural inspections, provided no investigations will be physically intrusive on the Real Property or the Facility unless Seller consents thereto, which consent shall not be unreasonably withheld (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying in any manner the representations or warranties of Seller set forth in this Agreement, which representations and warranties shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from any and all losses, liabilities, costs, expenses (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwise. The foregoing indemnity shall expressly survive the Closing or the earlier termination of this Agreement; and v. Within fifteen (15) days after the later of the date hereof or the date of their delivery to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate prior to the Closing Date any such Operating Contracts which Purchaser does not elect to assume.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Emeritus Corp\wa\), Stock Purchase Agreement (Emeritus Corp\wa\), Stock Purchase Agreement (Emeritus Corp\wa\)
Pre-Closing. Between the date hereof of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed:
(i) Seller shall use its best efforts to cause the Operator to operate the Facility diligently, in accordance with the Operator’s obligations under its lease or other arrangement with Seller, Purchaser agrees that:and only in the ordinary course of business and consistent with past practice.
i. Purchaser will not take (ii) Seller shall use its best efforts to prevent the Operator from making any action inconsistent with its obligations under this agreement or which could hinder or delay material change in the consummation operation of the transaction contemplated by this AgreementFacility, and shall prevent the Operator from selling or agreeing to sell any items of machinery, equipment or other assets of the Facility, or otherwise entering into any agreement affecting the Facility, except in the ordinary course of business;
ii. Within ten ( 10(iii) days after Seller shall use its receipt best efforts to prevent the Operator from entering into any Lease or Contract or commitment affecting the Facility, except for Leases or Contracts entered into in the ordinary course of business;
(iv) During normal business hours and consistent with Section 6(c) herein, Seller shall provide Buyer or its designated representative with access to the Facility upon prior notification and coordination with Seller and the Operator; provided, Buyer shall not materially interfere with the operation of the UCC-1 Search Report, the Title Report Facility. At such times Seller and the Survey, Purchaser Operator shall advise Seller in writing of its objections, if any, permit Buyer to each inspect the books and records of the UCC-1 Search Report, the Title Report and the Survey. In the event Purchaser fails to notify Seller in writing of Purchaser's objections within said ten Facility;
(10v) day period, Purchaser shall be deemed to have waived its right to object. Within five (5) business days following the execution of Seller's receipt of Purchaser's objectionsthis Agreement by the parties, Seller shall advise Purchaser whether it intends deliver to correct Buyer the defects due diligence items described on the Due Diligence List attached hereto as Schedule 10(a)(v) (the “Due Diligence Items”); provided, in the event certain Due Diligence Items (“Unavailable Items”) are not readily accessible to which Purchaser has objected. Seller shall be obligated to act in good faith in responding to Purchaser's title objections. For purposes hereofSeller, Seller shall be deemed may identify the Unavailable Items by written notice to have failed to act in good faith if its refuses to correct any matter which is the subject of Buyer within such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defects, Purchaser shall have five (5) days to advise Seller of business day period and shall use its decision to close, notwithstanding the defects, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search Report, the Title Report or the Survey not objected to in accordance with the terms hereof shall be deemed accepted by Purchaser and to be "Permitted Exceptions" (herein so called). Notwithstanding anything contained herein to the contrary, in the event Seller requires additional time to prepare either the Survey or the Title Report, then Seller shall have such additional time best efforts to deliver the same all Unavailable Items to PurchaserBuyer as promptly as possible, however, but in no event shall such extension be longer more than fifteen ( 15ten (10) additional days;
iii. Purchaser will proceed with all due diligence to obtain all consents and approvals necessary to permit business days following the consummation of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own and to operate the Facility, including, but not limited to, a license from the Florida Department of Health and Rehabilitative Services;
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date of this Agreement with respect to the Stock, the Corporation's Assets and the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of the Corporation's and the Facility's books and records and operations, including a review of the licensure files maintained by the State of Florida with respect to the Facility to the extent the same are publicly available, and structural inspections, provided no investigations will be physically intrusive on the Real Property or the Facility unless Seller consents thereto, which consent shall not be unreasonably withheld (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying in any manner the representations or warranties of Seller set forth in this Agreement, which representations and warranties shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from any and all losses, liabilities, costs, expenses (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwise. The foregoing indemnity shall expressly survive the Closing or the earlier termination execution of this Agreement. If Buyer requests additional items not included on Schedule 10(a)(v), it will do so by written request delivered by Seller and Seller will use its best efforts to provide such information within five (5) business days within receipt of the request; and
v. Within fifteen (15) days after , provided further, Seller shall continue to cause Operator to deliver to Buyer, following the later expiration of the date hereof or Due Diligence Period, financial reports showing, among other things, the date of their delivery EBITDAR (defined below) for the Facility for the trailing six (6) month annualized operations for any given period. The term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (reserves meaning additions to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate prior to the Closing Date any such Operating Contracts which Purchaser does not elect to assumecapital reserves).”
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Summit Healthcare REIT, Inc), Purchase and Sale Agreement (Summit Healthcare REIT, Inc)
Pre-Closing. Between the date hereof of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed:
(i) Seller shall use its best efforts to cause the Operator to operate the Facilities diligently, in accordance with the Operator’s obligations under its lease or other arrangement with Seller, Purchaser agrees that:and only in the ordinary course of business and consistent with past practice.
i. Purchaser will not take (ii) Seller shall use its best efforts to prevent the Operator from making any action inconsistent with its obligations under this agreement material change in the operation of any Facility, and shall prevent the Operator from selling or which could hinder agreeing to sell any items of machinery, equipment or delay the consummation other assets of the transaction contemplated by this AgreementFacility, or otherwise entering into any agreement affecting any Facility, except in the ordinary course of business;
ii. Within ten ( 10(iii) days after Seller shall use its receipt best efforts to prevent the Operator from entering into any Lease or Contract or commitment affecting any Facility, except for Leases or Contracts entered into in the ordinary course of business;
(iv) During normal business hours and consistent with Section 6(c) herein, Seller shall provide Buyer or its designated representative with access to the UCC-1 Search Report, the Title Report Facility upon prior notification and coordination with Seller and the SurveyOperator; provided, Purchaser Buyer shall advise not materially interfere with the operation of any Facility. At such times Seller in writing of its objections, if any, to each of the UCC-1 Search Report, the Title Report and the Survey. In Operator shall permit Buyer to inspect the event Purchaser fails to notify Seller in writing books and records of Purchaser's objections within said ten each Facility;
(10v) day period, Purchaser shall be deemed to have waived its right to object. Within five (5) business days following the execution of Seller's receipt of Purchaser's objectionsthis Agreement by the parties, Seller shall advise Purchaser whether it intends deliver to correct Buyer the defects due diligence items described on the Due Diligence List attached hereto as Schedule 10(a)(v) (the “Due Diligence Items”); provided, in the event certain Due Diligence Items (“Unavailable Items”) are not readily accessible to which Purchaser has objected. Seller shall be obligated to act in good faith in responding to Purchaser's title objections. For purposes hereofSeller, Seller shall be deemed may identify the Unavailable Items by written notice to have failed to act in good faith if its refuses to correct any matter which is the subject of Buyer within such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defects, Purchaser shall have five (5) days to advise Seller of business day period and shall use its decision to close, notwithstanding the defects, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search Report, the Title Report or the Survey not objected to in accordance with the terms hereof shall be deemed accepted by Purchaser and to be "Permitted Exceptions" (herein so called). Notwithstanding anything contained herein to the contrary, in the event Seller requires additional time to prepare either the Survey or the Title Report, then Seller shall have such additional time best efforts to deliver the same all Unavailable Items to PurchaserBuyer as promptly as possible, however, but in no event shall such extension be longer more than fifteen ( 15ten (10) additional days;
iii. Purchaser will proceed with all due diligence to obtain all consents and approvals necessary to permit business days following the consummation of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own and to operate the Facility, including, but not limited to, a license from the Florida Department of Health and Rehabilitative Services;
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date of this Agreement with respect to the Stock, the Corporation's Assets and the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of the Corporation's and the Facility's books and records and operations, including a review of the licensure files maintained by the State of Florida with respect to the Facility to the extent the same are publicly available, and structural inspections, provided no investigations will be physically intrusive on the Real Property or the Facility unless Seller consents thereto, which consent shall not be unreasonably withheld (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying in any manner the representations or warranties of Seller set forth in this Agreement, which representations and warranties shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from any and all losses, liabilities, costs, expenses (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwise. The foregoing indemnity shall expressly survive the Closing or the earlier termination execution of this Agreement. If Buyer requests additional items not included on Schedule 10(a)(v), it will do so by written request delivered by Seller and Seller will use its best efforts to provide such information within five (5) business days within receipt of the request; and
v. Within fifteen (15) days after , provided further, Seller shall continue to cause Operator to deliver to Buyer, following the later expiration of the date hereof or Due Diligence Period, financial reports showing, among other things, the date of their delivery EBITDAR (defined below) for the Facilities for the trailing six (6) month annualized operations for any given period. The term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (reserves meaning additions to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate prior to the Closing Date any such Operating Contracts which Purchaser does not elect to assumecapital reserves).”
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Summit Healthcare REIT, Inc), Purchase and Sale Agreement (Summit Healthcare REIT, Inc)
Pre-Closing. Between the date hereof and the Closing Date, except as contemplated by this Agreement or with the consent of Seller, Purchaser agrees thatPurchaser:
i. Other than as set forth in Paragraph 4 Seller will satisfy and discharge all claims, liens, security interests, tenancies (other than the Facility Leases and any Operating Contracts which Purchaser assumes at Closing pursuant to the terms hereof, and encumbrances on Seller's Assets;
ii. Seller will file all tax returns, reports and filings of any kind or nature required to be filed by Seller and will timely pay all taxes or other obligations which are due and payable with respect to Seller's Assets;
iii. Seller will not take any action inconsistent with its obligations under this agreement Agreement or which could hinder or delay the consummation of the transaction transactions contemplated by this Agreement, and Seller will continue until the Closing to fulfill any obligations which it may have under the Facility Leases;
iiiv. Within Seller will operate the Facility only in the ordinary course and with due regard to the proper maintenance and repair of the Facility and the Personal Property; provided, however, this covenant shall not be applicable unless Seller has commenced operations at the Facility prior to the Closing Date;
v. Seller will take all reasonable action to preserve the goodwill of the residents of the Facility; provided, however, this covenant shall not be applicable unless Seller has commenced operations at the Facility prior to the Closing Date;
vi. Seller will not make any material change in the operation of the Facility; provided, however, this covenant shall not be applicable unless Seller has commenced operations at the Facility prior to the Closing Date; and Seller will not sell or agree to sell any of the items which comprise the Personal Property nor otherwise enter into an agreement materially- affecting any of the Seller's Assets;
vii. Seller will use its reasonable efforts to retain the services and goodwill of the employees located at or connected with the operation of the Facility; provided, however, this covenant shall not be applicable unless Seller has commenced operations at the Facility or hired employees for the Facility prior to the Closing Date;
viii. Seller will maintain in force the existing hazard and liability insurance policies, or comparable coverage, for the Seller's Assets as now in effect,
ix. Seller will not increase the compensation or other benefits or bonuses payable or to become payable to any of the Seller's employees connected with the operation of the Facility, except for increases substantially in accordance with existing employment practices disclosed to and approved by Purchaser, if any or except for increases which will not affect Purchaser's operations at the Facility after closing; provided, however, this covenant shall not be applicable unless Seller has commenced operations at the Facility prior to the Closing Date;
x. Subject to Seller's obligations under Paragraph 7(o) with respect to the Operating Contracts and such contracts or commitment as Seller may need to enter into in connection with the completion of the construction of the Facility and for which Purchaser shall have no liability after the Closing, Seller will not enter into any contract or commitment affecting the Seller's Assets except in the ordinary course of business and Seller will advise Purchaser of any contracts or commitments which it enters, whether in the ordinary course of business or otherwise;
xi. During normal business hours, Seller will provide Purchaser and its agents with access (in the company of a representative of Seller) on 24 hours notice to the Real Property and the Facility, provided Purchaser does not, if applicable, interfere with the operation of the Facility and provided Purchaser uses its best efforts not to disturb any residents of the Facility during the course of such inspections and at such times Seller shall permit Purchaser to inspect the books and records and the physical and structural condition of the Facility, the Real Property and the Personal Property;
xii. Seller will timely pay all obligations which are due and payable with respect to the Seller's Assets;
xiii. Seller will operate the Facility in substantial compliance with all applicable municipal, county, state and federal laws, regulations, ordinances, standards and orders as now in effect (including without limitation, the building and zoning codes as currently applied with respect thereto) and with the Environmental Laws, where the failure to comply therewith could have a material adverse effect on the business, property, condition (financial or otherwise) or operation of the Facility or on the Seller's Assets; provided, however, this covenant shall not be applicable unless Seller has commenced operations at the Facility prior; to the Closing Date;
xiv. Seller will take all reasonable action to achieve substantial compliance in the construction, equipping and, if applicable, operation of the Facility with any laws, regulations, ordinances, standards and orders applicable to the Seller's Assets which are enacted after execution of this Agreement and prior to Closing;,
xv. Seller will proceed with all due diligence to secure any consents which may be necessary for the assignment of the Facility Leases; provided, however, this covenant shall not be applicable unless Seller has commenced operations at the Facility prior to the Closing Date;
xvi. As soon as practicable after the date hereof but in no event later than twenty (20) days following full execution of this Agreement, Seller will (a) deliver to Purchaser a UCC-I search report (herein so called), (b) shall cause Chicago Title Insurance Company to furnish to Purchaser a current title commitment (the "Title Report") for the issuance to Purchaser of an extended coverage Owner's title insurance policy with a value equal to the purchase price (the "Title Policy"), insuring Purchaser's interest in the Real Property and the Facility, . subject to no exceptions other than those of the usual printed exceptions, which are acceptable to Purchaser and the Permitted Exceptions (hereafter defined) and (c) arrange with a survey firm acceptable to Purchaser for the preparation and delivery of an ALTA Survey of the Real Property and the Facility (the "Survey");
xvii. Seller will provide Purchaser within ten ( (10) days after its receipt execution of this Agreement with copies of any environmental reports, structural report or geological reports which may be in Seller's possession with respect to the UCC-1 Search Report, the Title Report Facility and the Survey, Real Property;
xviii. Seller will cooperate with Purchaser shall advise Seller in writing of its objections, any efforts which it may undertake to audit Seller's financial statements with respect to the Facility for the periods prior to the Closing if any, and to each of the UCC-1 Search Report, the Title Report and the Surveyextent such an audit is required for Purchaser's compliance with applicable securities laws;
xix. In the event Purchaser fails to notify Seller in writing has not terminated this Agreement as of Purchaser's objections within said ten (10) day period, Purchaser shall be deemed to have waived its right to object. Within five (5) days the end of Seller's receipt of Purchaser's objectionsthe Due Diligence Period, Seller shall advise permit Purchaser whether it intends (A) to correct assume responsibility for the defects marketing of the Facility in anticipation of the completion of the construction thereof and (B) to which request changes in the design of the Facility or the proposed furnishings, fixtures and equipment therein if either the same will not increase the cost of the completion thereof or Purchaser has objectedagrees to assume said additional cost;
xx. In the event Seller shall be obligated to act in good faith in responding to Purchaser's title objections. For purposes hereof, Seller shall be deemed to have failed to act in good faith if its refuses to correct any matter which is requests a release of the subject of such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defects, Purchaser shall have five (5) days to advise Seller of its decision to close, notwithstanding the defects, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search Report, the Title Report or the Survey not objected to Money in accordance with the terms hereof shall be deemed accepted Paragraph 2, Seller will execute any and all documents reasonably requested by Purchaser and to be "Permitted Exceptions" (herein so calledevidence the security described in Paragraph 2(a); and
xxi. Notwithstanding anything contained herein to the contrary, in the event Seller requires additional time to prepare either the Survey or the Title Report, then Seller shall have such additional time to deliver the same to Purchaser, however, in no event shall such extension be longer than fifteen ( 15) additional days;
iii. Purchaser will proceed with all due diligence to obtain all consents and approvals necessary to permit complete the consummation construction of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own Facility in a timely and to operate professional manner, in accordance with all applicable requirements of and the FacilityState of Nevada, including, but not limited to, a license from the Florida Department requirements of Health and Rehabilitative Services;
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date of this Agreement with respect Nevada law applicable to the Stock, the Corporation's Assets and the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations licensure of the Corporation's and the Facility's books and records and operations, including Facility as a review of the licensure files maintained by the State of Florida with respect to the Facility to the extent the same are publicly availablegroup care home, and structural inspections, provided no investigations will be physically intrusive on the Real Property or the Facility unless subject to those design modifications requested by Purchaser and agreed to by Seller consents thereto, which consent shall not be unreasonably withheld (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying are more fully described in any manner the representations or warranties of Seller set forth in this Agreement, which representations and warranties shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from any and all losses, liabilities, costs, expenses (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwise. The foregoing indemnity shall expressly survive the Closing or the earlier termination of this Agreement; and
v. Within fifteen (15) days after the later of the date hereof or the date of their delivery to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate prior to the Closing Date any such Operating Contracts which Purchaser does not elect to assumeExhibit G hereto.
Appears in 1 contract
Pre-Closing. Between the date hereof and the Closing DateGap" Title Defects. Buyer may, except as contemplated by this Agreement at or with the consent of Sellerprior to ---------------------------------- Closing, Purchaser agrees that:
i. Purchaser will not take any action inconsistent with its obligations under this agreement or which could hinder or delay the consummation of the transaction contemplated by this Agreement;
ii. Within ten ( 10) days after its receipt of the UCC-1 Search Report, the Title Report and the Survey, Purchaser shall advise Seller in writing of its objections, if any, to each of the UCC-1 Search Report, the Title Report and the Survey. In the event Purchaser fails to notify Seller in writing of Purchaser's objections within said ten (10) day period, Purchaser shall be deemed to have waived its right to object. Within five (5) days of Seller's receipt of Purchaser's objections, Seller shall advise Purchaser whether it intends to correct the defects to which Purchaser has objected. Seller shall be obligated to act any defect in good faith in responding to PurchaserBuyer's title objections. For purposes hereof, Seller shall be deemed to have failed to act the Property (a "Gap Title Defect") either (a) appearing as an exception in good faith if its refuses to correct any matter which is the subject applicable ----------------- Title Commitment as of such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record Agreement Date but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defects, Purchaser shall have five (5) days to advise Seller of its decision to close, notwithstanding the defectsnot included hereunder as a Permitted Exception, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct (b) first raised by the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search ReportUnderwriter, the Title Report Agent or the Survey not objected to in accordance with Surveyor, or first appearing of record, between the terms hereof shall be deemed accepted by Purchaser and to be "Permitted Exceptions" (herein so called). Notwithstanding anything contained herein to the contrary, in the event Seller requires additional time to prepare either the Survey or effective date of the Title Report, then Seller shall have such additional time to deliver the same to Purchaser, however, in no event shall such extension be longer than fifteen ( 15) additional days;
iii. Purchaser will proceed with all due diligence to obtain all consents Commitment and approvals necessary to permit the consummation of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own and to operate the Facility, including, but not limited to, a license from the Florida Department of Health and Rehabilitative Services;
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date of this Agreement with respect to the Stock, the Corporation's Assets and the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of the Corporation's and the Facility's books and records and operations, including a review of the licensure files maintained by the State of Florida with respect to the Facility to the extent the same are publicly available, and structural inspections, provided no investigations will be physically intrusive on the Real Property or the Facility unless Seller consents thereto, which consent shall not be unreasonably withheld (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying in any manner the representations or warranties of Seller set forth in this Agreement, which representations and warranties shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from any and all losses, liabilities, costs, expenses (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwise. The foregoing indemnity shall expressly survive the Closing or the earlier termination of this Agreement; and
v. Within fifteen (15) days after the later of the date hereof or the date of their delivery to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and not permitted by the terms of this Agreement. With respect to any Gap Title Defect set forth in such notice which is in a liquidated dollar amount, Seller shall thereafter cause will cure such Gap Title Defect, and with respect to any material adverse Gap Title Defect which is not in a liquidated dollar amount, Seller will use reasonable efforts to cure such Gap Title Defect within a period of thirty (30) days after receipt of such notice (but not later than December 14, 2001, or the Corporation Closing Date, if earlier, as to which time is of the essence) and Seller will not be required to expend more than $250,000.00 in connection therewith) and Buyer will have the following options: (i) to accept a conveyance of the Property subject to the Permitted Exceptions, specifically including the Gap Title Defects which Seller is unable to cure and without a reduction of the Closing Purchase Price (and Buyer will have no claim pursuant to Section 5.3 hereof with respect to such Gap Title Defect) or (ii) after Seller's thirty (30) day cure period (but not later than December 14, 2001, or the Closing Date, if earlier, as to which time is of the essence), to terminate prior this Agreement by sending written notice thereof to Seller, and promptly upon delivery of such notice of termination this Agreement will terminate, subject to Section 13.20 hereof. To the extent necessary for Seller to attempt to cure any such matters, the Closing Date any will be extended by a reasonable additional time to effect such Operating Contracts which Purchaser does not elect a cure, but in no event will the extension be later than December 14, 2001 (time being of essence with respect to assumesuch date).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Apollo Real Estate Investment Fund Ii L P)
Pre-Closing. Between If the date hereof and Closing Date occurs on a Saturday, then, on the Business Day before the Closing Date, except as contemplated by this Agreement or with the consent of Seller, Purchaser agrees that:
i. Purchaser Parties will not take any action inconsistent with its obligations under this agreement or which could hinder or delay the consummation hold a pre-closing of the transaction contemplated by this Agreement;
ii. Within ten ( 10) days after its receipt Contemplated Transactions at the offices of the UCC-1 Search Report, the Title Report and the Survey, Purchaser shall advise Seller in writing of its objections, if any, to each of the UCC-1 Search Report, the Title Report and the Survey. In the event Purchaser fails to notify Seller in writing of Purchaser's objections within said ten (10) day period, Purchaser shall be deemed to have waived its right to object. Within five (5) days of Seller's receipt of Purchaser's objections, Seller shall advise Purchaser whether it intends to correct the defects to which Purchaser has objected. Seller shall be obligated to act in good faith in responding to Purchaser's title objections. For purposes hereof, Seller shall be deemed to have failed to act in good faith if its refuses to correct any matter which is the subject of such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defects, Purchaser shall have five (5) days to advise Seller of its decision to close, notwithstanding the defects, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct the return of Purchaser's ▇▇▇▇▇▇▇▇▇▇ Money. Any matter reflected ▇▇▇▇▇▇▇▇ LLP in Atlanta, Georgia and will perform such acts, and deliver such documents (including the UCC1 Search Report, the Title Report or the Survey not objected to in accordance with the terms hereof shall be deemed accepted by Purchaser and to be "Permitted Exceptions" (herein so called). Notwithstanding anything contained herein to the contrary, in the event Seller requires additional time to prepare either the Survey or the Title Report, then Seller shall have such additional time to deliver the same to Purchaser, however, in no event shall such extension be longer than fifteen ( 15) additional days;
iii. Purchaser will proceed with all due diligence to obtain all consents and approvals necessary to permit the consummation of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own and to operate the Facility, including, but not limited to, a license from the Florida Department of Health and Rehabilitative Services;
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date of this Agreement with respect to the Stock, the Corporation's Assets Closing Documents and the Corporation's Liabilities Buyer Closing Documents) as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of they would at the Corporation's and the Facility's books and records and operations, including a review of the licensure files maintained by the State of Florida with respect to the Facility to the extent the same are publicly available, and structural inspections, provided no investigations will be physically intrusive on the Real Property or the Facility unless Seller consents thereto, which consent shall not be unreasonably withheld (the "Due Diligence Review")Closing; provided, however, nothing herein that (i) all such documents shall be construed delivered to ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (the "Holding Agent") pursuant to this Section 4(e),(ii) the Buyer shall deliver the cash payment described in Section 4(b)(ii) above to the Escrow Agent, (iii) the Buyer shall deliver any deposit described in Section 8(c)(i) below to the Escrow Agent, (iv) the Parties shall be deemed to have irrevocably and unconditionally agreed to consummate the Contemplated Transactions effective the Closing Time as amending if all conditions to Closing had been satisfied or modifying waived as of the Closing Date (and all conditions to Closing shall be deemed to have been satisfied or waived as of the Closing Time), and (v) the Closing shall in any manner all respects be deemed to occur (and the representations or warranties Seller Closing Documents and the Buyer Closing Documents shall be deemed to have been legally delivered and to have become legally effective) at the Closing Time. On the first Business Day after the Closing Date, (x) the Holding Agent will deliver (A) the Seller Closing Documents to the Buyer and (B) the Buyer Closing Documents to Vista (on behalf of Seller all the Sellers), and (y) the Escrow Agent will deliver each of the portion of the Deposit described in Section 3(b)(i) above and the cash payment described in Section 4(e)(ii) above, plus accrued interest thereon, to Vista (on behalf of all the Sellers). The Holding Agent will have no duties hereunder other than as expressly set forth in this Agreement, which representations the preceding sentence. The Buyer and warranties shall be separate the Sellers hereby jointly and severally agree to indemnify and hold harmless the Holding Agent to the fullest extent permitted by law from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from against any and all losses, liabilitiesclaims, costsdamages, expenses (including without limitation, reasonable attorney's fees and costs disbursements of court at trial and on appealcounsel), damagesactions, liensproceedings, claims or investigations (including, without limitation mechanics' whether formal or materialmans' liens or claims of liensinformal), actions and causes of action arising from or threats thereof, based upon, relating to Purchaser's (or Purchaser's Agents, employeesto, or representatives) entering on arising out of, the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwise. The foregoing indemnity shall expressly survive the Closing or the earlier termination of this Agreement; and
v. Within fifteen (15) days after the later duties of the date hereof or the date of their delivery to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate prior to the Closing Date any such Operating Contracts which Purchaser does not elect to assumeHolding Agent under this Section 4(e).
Appears in 1 contract
Pre-Closing. Between the date hereof and the Closing Date, except as contemplated by this Agreement or with the consent of Seller, Purchaser agrees thatPurchaser:
i. (i) Seller will conduct the Pharmacy Business only in the ordinary course and with due regard to the proper maintenance and repair of the Pharmacy Premises and tangible components of the Personal Property;
(ii) Seller will take all reasonable action to preserve the goodwill of the institutional clients currently serviced by Seller under the terms of the Rx Contracts;
(iii) Seller will make no material change in the operation of the Pharmacy Business nor sell or agree to sell any of the items which comprise the Personal Property nor otherwise enter into an agreement materially affecting the Pharmacy Business or the Pharmacy Premises;
(iv) Seller will use its reasonable efforts to retain the services and goodwill of the employees of Seller located at or connected with the operation of the Pharmacy Business;
(v) Seller will maintain in force the existing hazard and liability insurance policies, or comparable coverage, for the Personal Property, the Inventory and the Pharmacy Premises as now in effect;
(vi) Seller will maintain the Inventory in substantially the same condition and quantities as presently being maintained;
(vii) Seller will not increase the compensation or other benefits or bonuses payable or to become payable to any of Seller's employees connected with the operation of the Pharmacy Business, including but not limited to, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, except for increases substantially in accordance with existing employment practices disclosed to and approved by Purchaser, if any;
(viii) Seller will not enter into any contract or commitment affecting the Seller's Assets, the Pharmacy Business or the Pharmacy Premises except in the ordinary course of business and Seller will advise Purchaser of any contracts or commitments into which it enters, whether in the ordinary course of business or otherwise;
(ix) Seller will satisfy and discharge all claims, liens, security interests, tenancies, and encumbrances on Seller's Assets and the Pharmacy Premises; provided, however, that Seller shall have the right to discharge the same at the time of, and from the proceeds due from Purchaser to Seller at, Closing;
(x) During normal business hours, Seller will provide Purchaser with access on 24 hours notice to the Pharmacy Premises and Seller's corporate offices, provided Purchaser does not interfere with the operation of the Pharmacy Business and Seller's corporate offices and at such times Seller shall permit Purchaser to inspect the books and records of the Pharmacy Business in order to ascertain that the same are true and accurate and have been kept in accordance with generally accepted accounting principles; provided, however, that any agreements between Seller and Purchaser with respect to confidential information or trade secrets provided to Purchaser shall survive termination of this Agreement in the event the transaction provided for herein fails to close for any reason whatsoever.
(xi) Except as otherwise provided for herein with respect to the Trade Payables, Seller will timely pay all obligations which are due and payable with respect to the Pharmacy Premises and the Seller's Assets;
(xii) Seller will cause the Pharmacy Business to be operated in substantial compliance with all applicable municipal, county, state and federal laws, regulations, ordinances, standards and orders as now in effect (including without limitation, the building and zoning codes as currently applied and waived with respect to the Pharmacy Premises) and with the Environmental Laws, where the failure to comply therewith could have a material adverse effect on the business, property, condition (financial or otherwise) or operation of the Pharmacy Business, the Seller's Assets or the Pharmacy Premises;
(xiii) Seller will take all reasonable action to achieve substantial compliance with any laws, regulations, ordinances, standards and orders applicable to the Seller's Assets, the Pharmacy Business or the Pharmacy Premises which are enacted after execution of this Agreement and prior to Closing;
(xiv) Seller will not take any action inconsistent with its obligations under this agreement Agreement or which could hinder or delay the consummation of the transaction transactions contemplated by this Agreement;
ii. Within ten ( 10(xv) days after its receipt Seller will take such action as is reasonably necessary to maintain the continued goodwill of the UCC-1 Search Report, the Title Report and the Survey, Purchaser shall advise Seller in writing of its objections, if any, to each owner of the UCC-1 Search Report, Pharmacy Premises and that the Title Report and the Survey. In the event Purchaser fails to notify Seller in writing of Purchaser's objections within said ten (10) day period, Purchaser shall be deemed to have waived its right to object. Within five (5) days of Seller's receipt of Purchaser's objections, Seller shall advise Purchaser whether it intends to correct the defects to which Purchaser has objected. Seller shall be obligated to act Pharmacy Premises are in good faith in responding to Purchaser's title objections. For purposes hereofcondition and repair, on the Closing Date, ordinary wear and tear excepted; and
(xvi) Seller shall be deemed to have failed to act in good faith if its refuses to correct any matter which is the subject of such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defects, Purchaser shall have five (5) days to advise Seller of its decision to close, notwithstanding the defects, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search Report, the Title Report or the Survey not objected to in accordance with the terms hereof shall be deemed accepted by Purchaser and to be "Permitted Exceptions" (herein so called). Notwithstanding anything contained herein to the contrary, in the event Seller requires additional time to prepare either the Survey or the Title Report, then Seller shall have such additional time to deliver the same to Purchaser, however, in no event shall such extension be longer than fifteen ( 15) additional days;
iii. Purchaser will proceed with all due diligence to obtain all secure any consents which may be necessary for the assignment and approvals necessary to permit the consummation assumption of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own Rx Contracts or the execution of the New Rx Contracts and to operate secure the Facility, including, but not limited to, a license from the Florida Department approval of Health Seller's Board of Directors and Rehabilitative Services;
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date of this Agreement with respect to the Stock, the Corporation's Assets and the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of the Corporation's and the Facility's books and records and operations, including a review of the licensure files maintained by the State of Florida with respect to the Facility to the extent the same are publicly available, and structural inspections, provided no investigations will be physically intrusive on the Real Property or the Facility unless Seller consents thereto, which consent shall not be unreasonably withheld (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying in any manner the representations or warranties of Seller set forth in this Agreement, which representations and warranties shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from any and all losses, liabilities, costs, expenses (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwise. The foregoing indemnity shall expressly survive the Closing or the earlier termination of this Agreement; and
v. Within fifteen (15) days after the later of the date hereof or the date of their delivery to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate prior to the Closing Date any such Operating Contracts which Purchaser does not elect to assumeshareholders.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Sun Healthcare Group Inc)
Pre-Closing. Between the date hereof and the Closing Date“Gap” Title Defects. Purchaser may, except as contemplated by this Agreement at or with the consent of Sellerprior to Closing, Purchaser agrees that:
i. Purchaser will not take any action inconsistent with its obligations under this agreement or which could hinder or delay the consummation of the transaction contemplated by this Agreement;
ii. Within ten ( 10) days after its receipt of the UCC-1 Search Report, the Title Report and the Survey, Purchaser shall advise Seller in writing of its objections, if any, to each of the UCC-1 Search Report, the Title Report and the Survey. In the event Purchaser fails to notify Seller in writing of any objections to title or objections to survey matters first arising between the effective date of Purchaser's ’s Title Commitment referred to above and the date on which the transaction contemplated herein is scheduled to close. With respect to any objections within said to title set forth in such notice, Seller and the Trust shall have the right, but not the obligation, to cure such objections, provided that Seller or the Trust shall be obligated to satisfy or discharge any Seller Encumbrance, except to the extent Purchaser has obtained the Consent regarding the Existing Indebtedness. Within ten (10) day perioddays after receipt of Purchaser’s notice of objections, Seller shall notify Purchaser in writing whether Seller or the Trust elects to attempt to cure such objections. If Seller or the Trust elects to attempt to cure an item contained in a notice of objection from Purchaser or is obligated to cure a Seller Encumbrance, Seller or the Trust shall have until the date of Closing to attempt to remove, satisfy or cure the same, and for this purpose Seller shall be deemed entitled to have waived its right to object. Within a reasonable adjournment of the Closing if additional time is required, but in no event shall the adjournment exceed fifteen (15) Business Days after the date for Closing set forth in Section 4.1 hereof; provided, however, that Seller shall give not less than five (5) days Business Days prior written notice to Purchaser that Seller elects to extend date of Seller's receipt of Purchaser's objections, Seller shall advise Purchaser whether it intends to correct the defects to which Purchaser has objected. Seller shall be obligated to act in good faith in responding to Purchaser's title objections. For purposes hereof, Seller shall be deemed to have failed to act in good faith if its refuses to correct any matter which is the subject of such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defects, Purchaser shall have five (5) days to advise Seller of its decision to close, notwithstanding the defects, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search Report, the Title Report or the Survey not objected to Closing in accordance with the terms hereof shall be deemed accepted by Purchaser and to be "Permitted Exceptions" (herein so called)of this sentence. Notwithstanding anything contained herein to the contrary, in the event If Seller requires additional time to prepare either the Survey or the Title ReportTrust elects to attempt to cure an item contained in a notice of objection from Purchaser, then Seller or the Trust, as the case may be, shall use reasonable efforts to cure such item. If Seller and the Trust elect not to cure any objections specified in Purchaser’s notice (other than with respect to a Seller Encumbrance), or if Seller and the Trust are unable to effect a cure prior to the Closing (or any date to which the Closing has been adjourned) (other than with respect to a Seller Encumbrance), Purchaser shall have the following options: (i) to acquire the Shares, in which case Purchaser agrees that the Property shall be subject to any matter objected to by Purchaser which Seller is unwilling or unable to cure, without reduction of the Purchase Price; or (ii) to terminate this Agreement by sending written notice thereof to Seller, and upon delivery of such additional time to deliver notice of termination, this Agreement shall terminate and the same Deposit shall be returned to Purchaser, howeverand thereafter neither party hereto shall have any further rights, in no event shall such extension be longer than fifteen ( 15) additional days;
iii. Purchaser will proceed with all due diligence to obtain all consents and approvals necessary to permit the consummation of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own and to operate the Facility, including, but not limited to, a license from the Florida Department of Health and Rehabilitative Services;
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date of this Agreement with respect to the Stock, the Corporation's Assets and the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of the Corporation's and the Facility's books and records and operations, including a review of the licensure files maintained by the State of Florida with respect to the Facility obligations or liabilities hereunder except to the extent the same are publicly availablethat any right, and structural inspections, provided no investigations will be physically intrusive on the Real Property obligation or the Facility unless Seller consents thereto, which consent shall not be unreasonably withheld (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying in any manner the representations or warranties of Seller liability set forth in this Agreement, which representations and warranties shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from any and all losses, liabilities, costs, expenses (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwise. The foregoing indemnity shall expressly survive the Closing or the earlier survives termination of this Agreement; and
v. Within fifteen (15) days after the later of the date hereof or the date of their delivery to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate prior to the Closing Date any such Operating Contracts which Purchaser does not elect to assume.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Pre-Closing. Between the date hereof and the Closing Date“Gap” Title Defects. Purchaser may, except as contemplated by this Agreement at or with the consent of Sellerprior to Closing, Purchaser agrees that:
i. Purchaser will not take any action inconsistent with its obligations under this agreement or which could hinder or delay the consummation of the transaction contemplated by this Agreement;
ii. Within ten ( 10) days after its receipt of the UCC-1 Search Report, the Title Report and the Survey, Purchaser shall advise Seller in writing of its objections, if any, to each of the UCC-1 Search Report, the Title Report and the Survey. In the event Purchaser fails to notify Seller in writing of Purchaser's any objections to title first raised by the Title Company or the surveyor between the effective date of the Title Commitment and the Closing Date that have or could have a material and adverse effect on title to the Property. Purchaser must notify Seller of any such objections within said ten two (102) day periodbusiness days of Purchaser’s learning of the matters and, Purchaser in any event, not later than Closing, and Seller shall be deemed have the right, but not the obligation (except as to have waived its right Monetary Objections), to objectcure such objections. Within five (5) business days of Seller's after receipt of Purchaser's ’s notice of objections, Seller shall advise notify Purchaser in writing whether it intends Seller elects to correct the defects to which Purchaser has objected. Seller shall be obligated to act in good faith in responding to Purchaser's title cure such objections. For purposes hereof, Seller shall be deemed to have failed to act in good faith if its refuses to correct any matter which is the subject of such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses elects to correct some or all of cure any such defects, Purchaser shall have five (5) days to advise Seller of its decision to close, notwithstanding the defects, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search Reportmatters, the Title Report or the Survey not objected to in accordance with the terms hereof shall original scheduled date for Closing may, at Seller’s sole option, be deemed accepted extended by Purchaser and to be "Permitted Exceptions" (herein so called). Notwithstanding anything contained herein to the contrary, in the event Seller requires a reasonable additional time to prepare either the Survey or the Title Reporteffect such cure, then Seller shall have such additional time to deliver the same to Purchaser, however, but in no event shall such the extension be longer than fifteen ( 15) additional days;
iii. Purchaser will proceed with all due diligence to obtain all consents and approvals necessary to permit the consummation of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own and to operate the Facility, including, but not limited to, a license from the Florida Department of Health and Rehabilitative Services;
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date of this Agreement with respect to the Stock, the Corporation's Assets and the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of the Corporation's and the Facility's books and records and operations, including a review of the licensure files maintained by the State of Florida with respect to the Facility to the extent the same are publicly available, and structural inspections, provided no investigations will be physically intrusive on the Real Property or the Facility unless Seller consents thereto, which consent shall not be unreasonably withheld (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying in any manner the representations or warranties of Seller set forth in this Agreement, which representations and warranties shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from any and all losses, liabilities, costs, expenses (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwise. The foregoing indemnity shall expressly survive the Closing or the earlier termination of this Agreement; and
v. Within exceed fifteen (15) days after the later of original scheduled date for Closing. If Seller elects not to cure any objections specified in Purchaser’s notice (other than the date hereof Monetary Objections), or the date of their delivery if Seller is unable to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate effect a cure prior to the Closing Date (or any date to which the Closing has been adjourned), Purchaser shall have the following options: (a) to accept a conveyance of the Property subject to the Permitted Exceptions, specifically including any matter objected to by Purchaser which Seller is unwilling or unable to cure (or insure, bond or endorse over, as appropriate) other than the Monetary Objections, and without reduction of the Purchase Price; or (b) to terminate this Agreement by sending written notice thereof to Seller, and upon delivery of such notice of termination, this Agreement shall terminate and the Deposit shall be returned to Purchaser, and thereafter neither party hereto shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement. If Seller notifies Purchaser that Seller does not intend to attempt to cure any such Operating Contracts which title objection (other than the Monetary Objections), or if, having commenced attempts to cure any objection, Seller later notifies Purchaser does not that Seller shall be unable to effect a cure thereof (other than the Monetary Objections), Purchaser shall, within two (2) business days after such notice has been given, notify Seller in writing whether Purchaser shall elect to assumeaccept the conveyance under clause (a) or to terminate this Agreement under clause (b).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hines Global REIT, Inc.)
Pre-Closing. Between Prior to the date hereof Closing,
6.1.1 if all of the conditions to Purchaser’s obligation to proceed to Closing are satisfied and the Closing Date, except as contemplated by under this Agreement or with the consent does not occur as a result of Seller, Purchaser agrees that:
i. Purchaser will not take any action inconsistent with its obligations Purchaser’s default under this agreement or which could hinder or delay the consummation of the transaction contemplated by this Agreement;
ii. Within ten ( 10) days after its receipt of the UCC-1 Search Report, the Title Report and the Survey, Purchaser shall advise Seller in writing of its objections, if any, to each of the UCC-1 Search Report, the Title Report and the Survey. In the event Purchaser fails to notify Seller in writing of Purchaser's objections within said ten (10) day period, Purchaser shall be deemed to have waived its right to object. Within five (5) days of Seller's receipt of Purchaser's objections, Seller shall advise Purchaser whether it intends to correct the defects to which Purchaser has objected. Seller shall be obligated to act in good faith in responding to Purchaser's title objections. For purposes hereof, Seller shall be deemed to have failed to act in good faith if entitled, as its refuses to correct any matter which is the subject sole remedy on account of such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defectsdefault, Purchaser shall have five (5) days to advise Seller of its decision to close, notwithstanding the defects, or to terminate this AgreementAgreement and retain the Deposit as liquidated damages (it being expressly understood and agreed that in the event of Purchaser’s default, Seller’s damages would be impossible to ascertain and that the Deposit constitutes a fair and reasonable amount of compensation in which case such event) and upon such retention of the Deposit neither party shall have any further rights or obligations hereunderhereunder except for those which expressly survive the termination of this Agreement.
6.1.2 if all conditions to Seller’s obligations to proceed to Closing are satisfied and the Closing under this Agreement does not occur as a result of Seller’s default under this Agreement, other than Seller's obligation Purchaser shall be entitled, as its sole remedy, either (a) to return or to direct receive the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search ReportDeposit, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunder; or (b) to enforce specific performance of Seller’s obligation to execute the Title Report or the Survey not objected to in accordance with the terms hereof shall be deemed accepted by Purchaser Assignment Instrument and to take all other actions required to be "Permitted Exceptions" taken by it hereunder on the Closing Date, provided any such specific performance action is actually commenced in a court of competent jurisdiction within sixty (herein so called). Notwithstanding anything contained herein to the contrary, in the event Seller requires additional time to prepare either the Survey or the Title Report, then Seller shall have such additional time to deliver the same to Purchaser, however, in no event shall such extension be longer than fifteen ( 15) additional days;
iii. Purchaser will proceed with all due diligence to obtain all consents and approvals necessary to permit the consummation of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own and to operate the Facility, including, but not limited to, a license from the Florida Department of Health and Rehabilitative Services;
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (9060) days after the date most recently scheduled Closing Date; it being understood and agreed that the remedy of this Agreement with respect to the Stock, the Corporation's Assets and the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of the Corporation's and the Facility's books and records and operations, including a review of the licensure files maintained by the State of Florida with respect to the Facility to the extent the same are publicly available, and structural inspections, provided no investigations will be physically intrusive on the Real Property or the Facility unless Seller consents thereto, which consent specific performance shall not be unreasonably withheld (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying in available to enforce any manner the representations or warranties other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of any default by Seller hereunder covered by the preceding sentence, except as expressly set forth in this Agreement, which representations and warranties the preceding sentence. Purchaser shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that deemed to have elected the option in clause (a) above if Purchaser shall maintain the confidentiality of any documents fails to file suit for specific performance against Seller on or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from any and all losses, liabilities, costs, expenses before sixty (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwise. The foregoing indemnity shall expressly survive the Closing or the earlier termination of this Agreement; and
v. Within fifteen (1560) days after the later of following the date hereof or the date of their delivery upon which Closing was to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate prior to the Closing Date any such Operating Contracts which Purchaser does not elect to assumehave occurred.
Appears in 1 contract
Sources: Equity Interest Purchase and Sale Agreement (Creative Media & Community Trust Corp)
Pre-Closing. Between the date hereof of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed:
(i) Seller shall use its commercially reasonable best efforts to cause the Operator to operate the Facilities diligently, in accordance with the Operator’s obligations under its lease or other arrangement with Seller, Purchaser agrees that:and only in the ordinary course of business and consistent with past practice.
i. Purchaser will not take (ii) Seller shall use its best efforts to prevent the Operator from making any action inconsistent with its obligations under this agreement material change in the operation of any Facility, and shall prevent the Operator from selling or which could hinder agreeing to sell any items of machinery, equipment or delay the consummation other assets of the transaction contemplated by this AgreementFacility, or otherwise entering into any agreement affecting any Facility, except in the ordinary course of business;
ii. Within ten ( 10(iii) days after Seller shall use its receipt best efforts to prevent the Operator from entering into any Lease or Contract or commitment affecting any Facility, except for Leases or Contracts entered into in the ordinary course of business;
(iv) During normal business hours and consistent with Section 6(c) herein, Seller shall provide Buyer or its designated representative with access to the UCC-1 Search Report, the Title Report Facility upon prior notification and coordination with Seller and the SurveyOperator; provided, Purchaser Buyer shall advise not materially interfere with the operation of any Facility. At such times Seller in writing of its objections, if any, to each of the UCC-1 Search Report, the Title Report and the Survey. In Operator shall permit Buyer to inspect the event Purchaser fails to notify Seller in writing books and records of Purchaser's objections within said ten each Facility;
(10v) day period, Purchaser shall be deemed to have waived its right to object. Within five (5) business days following the execution of Seller's receipt of Purchaser's objectionsthis Agreement by the parties, Seller shall advise Purchaser whether it intends deliver to correct Buyer the defects due diligence items described on the Due Diligence List attached hereto as Schedule 6(a)(vii) (the “Due Diligence Items”); provided, in the event certain Due Diligence Items (“Unavailable Items”) are not readily accessible to which Purchaser has objected. Seller shall be obligated to act in good faith in responding to Purchaser's title objections. For purposes hereofSeller, Seller shall be deemed may identify the Unavailable Items by written notice to have failed to act in good faith if its refuses to correct any matter which is the subject of Buyer within such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defects, Purchaser shall have five (5) days to advise Seller of business day period and shall use its decision to close, notwithstanding the defects, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search Report, the Title Report or the Survey not objected to in accordance with the terms hereof shall be deemed accepted by Purchaser and to be "Permitted Exceptions" (herein so called). Notwithstanding anything contained herein to the contrary, in the event Seller requires additional time to prepare either the Survey or the Title Report, then Seller shall have such additional time commercially reasonable efforts to deliver the same all Unavailable Items to PurchaserBuyer as promptly as possible, however, but in no event shall such extension be longer more than fifteen ( 15ten (10) additional days;
iii. Purchaser will proceed with all due diligence to obtain all consents and approvals necessary to permit business days following the consummation of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own and to operate the Facility, including, but not limited to, a license from the Florida Department of Health and Rehabilitative Services;
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date execution of this Agreement with respect unless Seller delivers written notice to Buyer stating such Unavailable Items are not in Seller’s possession. If Buyer requests additional items not included on Schedule 6(a)(vii), it will do so by written request delivered by Seller and Seller will use its commercially reasonable efforts to provide such information within five (5) business days within receipt of the Stockrequest unless Seller delivers written notice to Buyer stating such additional items are not in Seller’s possession; and, provided further, Seller shall continue to cause Operator to deliver to Buyer, following the expiration of the Due Diligence Period, financial reports showing, among other things, the Corporation's Assets and EBITDAR (defined below) for the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of Facilities for the Corporation's and the Facility's books and records and operations, including a review of the licensure files maintained by the State of Florida with respect to the Facility to the extent the same are publicly available, and structural inspections, provided no investigations will be physically intrusive on the Real Property or the Facility unless Seller consents thereto, which consent shall not be unreasonably withheld trailing twelve (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying in any manner the representations or warranties of Seller set forth in this Agreement, which representations and warranties shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close 12) month annualized operations for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from any and all losses, liabilities, costs, expenses (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwisegiven period. The foregoing indemnity shall expressly survive the Closing or the earlier termination of this Agreement; and
v. Within fifteen term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (15) days after the later of the date hereof or the date of their delivery reserves meaning additions to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate prior to the Closing Date any such Operating Contracts which Purchaser does not elect to assumecapital reserves).”
Appears in 1 contract
Sources: Purchase and Sale Agreement (Summit Healthcare REIT, Inc)
Pre-Closing. Between the date hereof and the Closing Date, except as contemplated by this Agreement or with the consent of Seller, Purchaser agrees that:
i. Purchaser will not take any action inconsistent with its obligations under this agreement or which could hinder or delay the consummation of the transaction contemplated by this Agreement;
ii. Within ten ( 10) days after its receipt of the UCC-1 UCC- I Search Report, the Title Report and the Survey, Purchaser shall advise Seller in writing of its objections, if any, to each of the UCC-1 Search Report, the Title Report and the Survey. In the event Purchaser fails to notify Seller in writing of Purchaser's objections within said ten (10) day period, Purchaser shall be deemed to have waived its right to object. Within five (5) days of Seller's receipt of Purchaser's objections, Seller shall advise Purchaser whether it intends to correct the defects to which Purchaser has objected. Seller shall be obligated to act in good faith in responding to Purchaser's title objections. For purposes hereof, Seller shall be deemed to have failed to act in good faith if its refuses to correct any matter which is the subject of such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defects, Purchaser shall have five (5) days to advise Seller of its decision to close, notwithstanding the defects, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search Report, the Title Report or the Survey not objected to in accordance with the terms hereof shall be deemed accepted by Purchaser and to be "Permitted Exceptions" (herein so called). Notwithstanding anything contained herein to the contrary, in the event Seller requires additional time to prepare either the Survey or the Title Report, then Seller shall have such additional time to deliver the same to Purchaser, however, in no event shall such extension be longer than fifteen ( 15(I5) additional days;
iii. Purchaser will proceed with all due diligence to obtain all consents and approvals necessary to permit the consummation of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own and to operate the Facility, including, but not limited to, a license from the Florida Department Nevada State Division of Health and Rehabilitative Services;Health; and
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date of this Agreement on or before August 1,1996, with respect to the Stock, the CorporationSeller's Assets and the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of the CorporationSeller's and the Facility's books and records and operations, including a review of the licensure or permitting files maintained by the City of Las Vegas or the State of Florida Nevada with respect to the Facility to the extent the same are publicly available, and structural inspections, provided no investigations will be physically intrusive on the Real Property or the Facility unless Seller consents thereto, which consent shall not be unreasonably withheld (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying in any manner the representations or warranties of Seller set forth in this Agreement, which representations and warranties shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation Seller's Assets harmless of and from any and all losses, liabilities, costs, expenses (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwiseotherwise or breach of its confidentiality obligations hereunder. The foregoing indemnity shall expressly survive the Closing or the earlier termination of this Agreement; and
v. Within fifteen (15) days after the later of the date hereof or the date of their delivery to Purchaser, Purchaser will advise Seller in writing which, if any of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate prior to the Closing Date any such Operating Contracts which Purchaser does not elect to assume.
Appears in 1 contract
Pre-Closing. Between the date hereof and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Seller, Purchaser agrees thatPurchaser:
i. (i) Sellers will not enter into any operating contracts or service agreements in connection with the operation of the Facilities;
(ii) Sellers will not enter into any Resident Agreements for the Facilities;
(iii) Sellers will not enter into any employment agreements in connection with the operation of the Facilities;
(iv) Other than as set forth in Paragraph 4, Sellers will satisfy and discharge all claims, liens, security interests, tenancies (other than any Operating Contracts which Purchaser elects to assume at Closing pursuant to the terms hereof, the Lease and the Resident Agreements), and encumbrances on Sellers’ Assets;
(v) Each Seller will file all tax returns, reports and filings of any kind or nature required to be filed by each Seller and will timely pay all taxes or other obligations which are due and payable with respect to Sellers’ Assets;
(vi) Sellers will not take any action inconsistent with its obligations under this agreement Agreement or which could hinder or delay the consummation of the transaction transactions contemplated by this Agreement;
ii. (vii) Sellers will not sell or agree to sell any of the items which comprise the Personal Property nor otherwise enter into any agreement materially affecting any of the Sellers’ Assets;
(viii) Sellers will maintain in force the existing hazard and liability insurance policies, or comparable coverage, for the Sellers’ Assets as now may be in effect;
(ix) Sellers will not enter into any contract or commitment affecting the Sellers’ Assets except in the ordinary course of business and any such contract or commitment shall be terminable prior to closing and Sellers will advise Purchaser by written notice of any contracts or commitments which it enters, whether in the ordinary course of business or otherwise and Seller shall terminate such contracts or commitments prior to closing if Purchaser so requests;
(x) Sellers will timely pay all obligations which are due and payable with respect to the Sellers’ Assets;
(xi) Sellers will take all necessary action to achieve compliance with any laws, regulations, ordinances, standards and orders applicable to the Sellers’ Assets which are enacted after execution of this Agreement and prior to Closing;
(xii) Within ten ( 10twenty (20) days after its receipt following the mutual execution of this Agreement, Sellers will (a) deliver to Purchaser a UCC-1 search report covering the name of Sellers and the name of the UCC-1 Search ReportFacilities, the Title Report and the Survey, Purchaser shall advise Seller in writing of its objections, if any, to each a copy of the UCC-1 Search Reportexisting surveys with respect to the Real Property prepared (the “Survey”), and (c) if requested, arrange with the Escrow Agent for the issuance and delivery to Purchaser and to Purchaser’s attorney of a title report or commitment covering the Real property, together with copies of all exception documents referenced therein (the “Title Report and the Survey. In the event Purchaser fails to notify Seller in writing of Purchaser's objections within said ten Commitment”);
(10xiii) day period, Purchaser shall be deemed to have waived its right to object. Within At least five (5) days of Seller's receipt of Purchaser's objectionsprior to the Closing Date, Seller Sellers shall advise deliver to Purchaser whether it intends to correct the defects to which an updated UCC-1 search report;
(xiv) Sellers will provide Purchaser has objected. Seller shall be obligated to act in good faith in responding to Purchaser's title objections. For purposes hereof, Seller shall be deemed to have failed to act in good faith if its refuses to correct any matter which is the subject of such title objections where the only costs to it in doing are normal filing or recording fees or delivery charges and where the objections relate to liens which appear of record but relate to previously discharged debt or other minor defects in record title. If Seller refuses to correct some or all of such defects, Purchaser shall have five within twenty (520) days to advise Seller of its decision to close, notwithstanding following the defects, or to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder, other than Seller's obligation to return or to direct the return of Purchaser's ▇▇▇▇▇▇▇ Money. Any matter reflected in the UCC1 Search Report, the Title Report or the Survey not objected to in accordance with the terms hereof shall be deemed accepted by Purchaser and to be "Permitted Exceptions" (herein so called). Notwithstanding anything contained herein to the contrary, in the event Seller requires additional time to prepare either the Survey or the Title Report, then Seller shall have such additional time to deliver the same to Purchaser, however, in no event shall such extension be longer than fifteen ( 15) additional days;
iii. Purchaser will proceed with all due diligence to obtain all consents and approvals necessary to permit the consummation of the transaction contemplated by this Agreement and/or necessary to permit Purchaser to own and to operate the Facility, including, but not limited to, a license from the Florida Department of Health and Rehabilitative Services;
iv. Purchaser will proceed with all due diligence and at its sole cost and expense to conduct such investigations and to complete the same within ninety (90) days after the date mutual execution of this Agreement with respect copies of the following documents relating to the Stock, the Corporation's Assets Real Property and the Corporation's Liabilities as it deems to be reasonably necessary in connection with its purchase thereof, including, but not limited to, zoning investigations, soil studies, environmental assessments, seismic assessments, wetlands reports and investigations of the Corporation's and the Facility's books and records and operations, including a review of the licensure files maintained by the State of Florida with respect to the Facility Facilities to the extent the same are publicly availablein Sellers’ possession or reasonable control (collectively, the “Property Documents”): all environmental reports, structural reports and structural inspectionsgeological reports, provided no investigations will be physically intrusive on governmental licenses, permits and approvals, service and maintenance contracts not previously delivered, existing surveys of the Real Property, wetland reports, soils reports, architectural drawings, engineering tests and reports, all appraisals prepared for the Real Property or the Facility unless Seller consents thereto, which consent shall not be unreasonably withheld (the "Due Diligence Review"); provided, however, nothing herein shall be construed as amending or modifying in any manner the representations or warranties of Seller set forth in this Agreement, which representations and warranties shall be separate from and unaffected by Purchaser's Due Diligence Review; and provided, further, that Purchaser shall maintain the confidentiality of any documents or information obtained by it during the course of its Due Diligence Review and shall return the same to Seller in the event the transaction provided for herein fails close for any reason whatsoever Purchaser shall indemnify, defend and hold Seller and the Corporation harmless of and from any Facilities, and all losses, liabilities, costs, expenses (including without limitation, reasonable attorney's fees and costs of court at trial and on appeal), damages, liens, claims (including, without limitation mechanics' or materialmans' liens or claims of liens), actions and causes of action arising from or relating to Purchaser's (or Purchaser's Agents, employees, or representatives) entering on loan documents evidencing the Real Property and/or the Facility to test, study, investigate or inspect the same or any part thereof, whether pursuant to this paragraph or otherwise. The foregoing indemnity shall expressly survive the Closing or the earlier termination of this AgreementExisting Loans; and
v. Within fifteen (15xv) days after If Purchaser assumes the later Existing Loans, Sellers shall cooperate in good faith with Purchaser in obtaining the consent of the date hereof or the date of their delivery Existing Lender to Purchaser, Purchaser will advise Seller in writing which, if any ’s assumption of the Operating Contracts it elects to assume by virtue of its acquisition of the Stock as of the Closing Date and Seller shall thereafter cause the Corporation to terminate prior to the Closing Date any such Operating Contracts which Purchaser does not elect to assumesaid loans.
Appears in 1 contract