Provisions With Respect to Closing. (a) At Closing, Seller shall deliver possession of the Property to Buyer subject to possession by the Tenants under the Leases, and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”): (i) A Special Warranty Deed (“Deed”), in recordable form, executed and acknowledged by Seller in favor of Buyer with respect to the Real Property owned by Seller, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (subject only to the Permitted Exceptions) and the Deed Restrictions, in the form attached hereto as Exhibit “O”. (ii) An updated schedule of the Leases then in effect and an updated schedule of security deposits held by Seller under the Leases, provided, however, that a default by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder. (iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals. (iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and Buyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee. (v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof. (vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and Trademarks, Permits and Licenses (“License Assignment”), in the form of Exhibit “R” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and Trademarks, Permits and Licenses. (vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “T” attached hereto and made a part hereof. (viii) A duly executed and acknowledged Overlook Area Parking License Agreement. (ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski License Agreement. (x) A duly executed and acknowledged Tubing Area Parking License Agreement (xi) A duly executed and acknowledged Equipment Area One License Agreement. (xii) A duly executed and acknowledged Equipment Area Two License Agreement. (xiii) A duly executed and acknowledged Office Lease. (xiv) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “X” attached hereto and made a part hereof.; (xv) An affidavit executed by Seller and confirming that Seller is a “U.S. person” and not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”). (xvi) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code. (xvii) A ▇▇▇▇ of sale, in the form of Exhibit “Z” attached hereto and made a part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that title to the Personal Property so transferred by Seller is good and marketable and free and clear of all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions. (xviii) A title affidavit in customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and customary affidavits and other instruments, organizational documents of Seller, and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to convey title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement. (xix) A certificate or restatement indicating that the representations and warranties of Seller made in Paragraph 5 of this Agreement are true and correct in all material respects as of the Closing Date, or if there have been any changes, a description thereof. (xx) A settlement statement setting forth the Purchase Price and all credits and adjustments. (xxi) In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto. (xxii) Release of Property from any Seller mortgage(s). (b) At Closing, Buyer shall (i) deliver to Seller the balance of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”): (i) To the Title Company: (A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement. (ii) To Seller: (A) Intentionally Omitted; (B) Intentionally Omitted; (C) Intentionally Omitted; (D) Intentionally Omitted; (E) Intentionally Omitted; (F) Intentionally Omitted; (G) Release of Leasehold Mortgage; (H) The Office Lease; (I) The Lease Termination Agreement; (J) The License Assignment; (K) The Easement Agreement; (L) The Overlook Area Parking License Agreement; (M) The Overlook Area/ Lodge Area Ski License Agreement; (N) Tubing Area Parking License Agreement (O) Equipment Area One License Agreement (P) Equipment Area Two License Agreement (Q) The Memorandum of Right of First Refusal; (R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this Agreement. (S) A settlement statement setting forth the Purchase Price and all credits and adjustments. (c) The following items shall be prorated and adjusted as of midnight of the date preceding the date of the Closing. To the extent that the amounts of the items to be adjusted are not reasonably ascertainable as of the date of Closing, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained: (i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years). (ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility ▇▇▇▇▇▇▇▇ to Tenants under Leases shall be adjusted as of the date of Closing. (d) All real estate transfer taxes that result from the payment of the Purchase Price under this Agreement shall be borne by the parties equally, provided, however, that Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment Tax”), and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all recording fees for the recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be obtained by the Seller in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer and Seller shall share equally the cost of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searches, the Title Commitment and the Title Policy and any title endorsement. Each party shall bear the expense of its own counsel. (e) Buyer shall pay all sales and use taxes imposed in connection with the transfer of the Personal Property. (f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided and except that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the expansion of any leased premises under any Lease listed on Exhibit __ hereto, following the date of Closing, and (ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and other commissions and fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required under any Lease, except (A) any Lease made with Buyer’s approval after the Execution Date, and (B) any work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Paragraph 13 shall survive Closing hereunder.
Appears in 1 contract
Provisions With Respect to Closing. (a) At the Closing, Seller shall deliver possession of the Property to Buyer subject to possession by the Tenants under the Leases, and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer Purchaser the following, all in addition form and substance reasonably satisfactory to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”):Purchaser:
(i) A Special Warranty Deed (“Deed”)a general warranty deed, in recordable form, duly executed and acknowledged by Seller in favor of Buyer with respect Seller, conveying to Purchaser, or Purchaser’s assignee, good, marketable and indefeasible fee simple title to the Real Property owned by SellerEstate and any fixtures located thereon, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (proper form for recording and subject only to the Permitted Title Exceptions) and the Deed Restrictions, in the form attached hereto as Exhibit “O”.;
(ii) An updated schedule of the Leases then in effect and an updated schedule of security deposits held by Seller under the Leases, provided, however, that a default by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and Buyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and Trademarks, Permits and Licenses (“License Assignment”), in the form of Exhibit “R” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and Trademarks, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “T” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Parking License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking License Agreement
(xi) A duly executed and acknowledged Equipment Area One License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two License Agreement.
(xiii) A duly executed and acknowledged Office Lease.
(xiv) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “X” attached hereto and made a part hereof.;
(xv) An affidavit executed by Seller Seller, stating Seller’s U.S. taxpayer identification number and confirming that Seller is a “U.S. person” and not a “foreign person” within (as defined under the meaning of Section 1445 Foreign Investment in Real Property Tax Act and the regulations promulgated thereunder) and that Purchaser is not required to withhold any portion of the Internal Revenue Code Purchase Price under the provisions of 1986, as amended (“Code”).such Act;
(xviiii) Such information, if any, all such further instruments and documents as are normally made or delivered in connection with the sale of Property similar to the Real Estate in the county and state where the Real Estate is located or as may be required by necessary, expedient, proper, or appropriate in the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 reasonable opinion of the Code.
(xvii) A ▇▇▇▇ of salePurchaser or Purchaser’s counsel, in order to complete the form of Exhibit “Z” attached hereto and made a part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that title to the Personal Property so transferred by Seller is good and marketable and free and clear of all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions.
(xviii) A title affidavit in customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and customary affidavits and other instruments, organizational documents of Seller, and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to convey title to the Property as required under this Agreement, and to enable the Title Company to insure such title as transactions contemplated in Paragraph 4 of this Agreement.
(xix) A certificate or restatement indicating that the representations and warranties of Seller made in Paragraph 5 of this Agreement are true and correct in all material respects as of the Closing Date, or if there have been any changes, a description thereof.
(xx) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(xxi) In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxii) Release of Property from any Seller mortgage(s).hereby; and
(b) At Closing, Buyer shall (i) deliver to Seller the balance of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;
(B) Intentionally Omitted;
(C) Intentionally Omitted;
(D) Intentionally Omitted;
(E) Intentionally Omitted;
(F) Intentionally Omitted;
(G) Release of Leasehold Mortgage;
(H) The Office Lease;
(I) The Lease Termination Agreement;
(J) The License Assignment;
(K) The Easement Agreement;
(L) The Overlook Area Parking License Agreement;
(M) The Overlook Area/ Lodge Area Ski License Agreement;
(N) Tubing Area Parking License Agreement (O) Equipment Area One License Agreement (P) Equipment Area Two License Agreement
(Q) The Memorandum of Right of First Refusal;
(R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this Agreement.
(S) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding On the date of the Closing. To the extent , and provided that the amounts of the items all conditions precedent to be adjusted Purchaser’s obligations under this Agreement are not reasonably ascertainable as of the date of Closingsatisfied, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained:
(i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller Purchaser shall pay all real estate taxes for all prior fiscal tax years).
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility ▇▇▇▇▇▇▇▇ to Tenants under Leases shall be adjusted as of the date of Closing.
(d) All real estate transfer taxes that result from the payment balance amount of the Purchase Price under this Agreement shall be borne (subject to prorations and adjustments) by the parties equally, provided, however, that wire transfer or other immediately available funds; and
(c) Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment Tax”), and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all recording fees for the recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be obtained by the Seller in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer and Seller shall share equally the cost of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searches, the Title Commitment and the Title Policy and any title endorsement. Each party shall bear the expense of its own counsel.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided and except that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expensespay: (i) becoming due and payable on account the costs of preparing the deed conveying the Real Property to Purchaser, (ii) the cost of any renewal releases of Removable Liens or extension of any Lease, or the expansion of any leased premises under any Lease listed on Exhibit __ hereto, following the date of Closingother unpermitted exceptions, and (iiiii) becoming due any transfer taxes and/or intangible taxes applicable to the sale and payable after recording of the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the Execution Datewarranty deed. At or prior to Closing, Seller Purchaser shall provide to Buyer written statements from all parties to be paid brokerage, leasing and other commissions and fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required under any Lease, except pay: (A) any Lease made with Buyer’s approval after the Execution Datecost of recording the warranty deed, (B) the cost of title insurance, and (BC) any work requested the costs of the survey. Any other closing costs shall be paid equally by any Tenant (in connection with any renewal, extension or expansion, or otherwise) Seller and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Paragraph 13 shall survive Closing hereunderPurchaser.
Appears in 1 contract
Provisions With Respect to Closing. (a) A. At the Closing, Seller shall deliver possession of the Property to Buyer subject to possession by the Tenants under the Leases, and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer Purchaser the following, all in addition form and substance reasonably satisfactory to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”):Purchaser:
(i1) A Special Warranty Deed (“Deed”)a general warranty deed, in recordable form, duly executed and acknowledged by Seller in favor of Buyer with respect Seller, conveying to Purchaser, or Purchaser's Nominee, good, marketable and indefeasible fee simple title to the Real Property owned by SellerEstate, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (proper form for recording and subject only to the Permitted Title Exceptions) and the Deed Restrictions, in the form attached hereto as Exhibit “O”.;
(ii2) An updated schedule an affidavit executed by Seller, stating Seller's U.S. Taxpayer identification number and that Seller is not a "Foreign person" or a "Foreign corporation" (as defined under Internal Revenue Code Section 1445 and Section 7701), and that Purchaser is not required to withhold any portion of the Leases then in effect and an updated schedule of security deposits held by Seller Purchase Price under the Leases, provided, however, that a default by any Tenant under any provisions of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.such Act;
(iii3) Originals of the Leases and guarantees thereof (or copies thereof certified a certificate executed by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and Buyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and Trademarks, Permits and Licenses (“License Assignment”), in the form of Exhibit “R” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and Trademarks, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “T” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Parking License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking License Agreement
(xi) A duly executed and acknowledged Equipment Area One License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two License Agreement.
(xiii) A duly executed and acknowledged Office Lease.
(xiv) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “X” attached hereto and made a part hereof.;
(xv) An affidavit executed by Seller and confirming that Seller is a “U.S. person” and not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”).
(xvi) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xvii) A ▇▇▇▇ of sale, in the form of Exhibit “Z” attached hereto and made a part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that title to the Personal Property so transferred by Seller is good and marketable and free and clear of all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions.
(xviii) A title affidavit in customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and customary affidavits and other instruments, organizational documents of Seller, and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to convey title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(xix) A certificate or restatement indicating effect that the representations and warranties of made by Seller made in Paragraph 5 of this Agreement to Purchaser are true and correct in all material respects on and as of the date of the Closing Datewith such exclusions exceptions or qualifications permitted pursuant to Paragraph 12C; and
(4) all such further instruments and documents as are normally made or delivered in connection with the sale of Property similar to the Real Estate in the county and state where the Real Estate is located or as may be necessary, expedient, proper, or if there have been any changesappropriate in the reasonable opinion of Purchaser or Purchaser's counsel, a description thereofin order to complete the transactions contemplated hereby.
(xx) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(xxi) In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxii) Release of Property from any Seller mortgage(s).
(b) At Closing, Buyer shall (i) deliver to Seller the balance of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;
(B) Intentionally Omitted;
(C) Intentionally Omitted;
(D) Intentionally Omitted;
(E) Intentionally Omitted;
(F) Intentionally Omitted;
(G) Release of Leasehold Mortgage;
(H) The Office Lease;
(I) The Lease Termination Agreement;
(J) The License Assignment;
(K) The Easement Agreement;
(L) The Overlook Area Parking License Agreement;
(M) The Overlook Area/ Lodge Area Ski License Agreement;
(N) Tubing Area Parking License Agreement (O) Equipment Area One License Agreement (P) Equipment Area Two License Agreement
(Q) The Memorandum of Right of First Refusal;
(R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this Agreement.
(S) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding B. On the date of the Closing. To , and provided that all conditions precedent to Purchaser's obligations under this Agreement are satisfied, Purchaser shall deliver to the extent that Title Company, as escrowee, the amounts amount of the items to be adjusted are not reasonably ascertainable as of the date of ClosingPurchase Price (less credits, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained:
(iadjustments and prorations in accordance with this Agreement) Real estate taxes for the fiscal tax year(s) by wire transfer or other immediately available funds, payable in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years)United States dollars.
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made on C. On the date of Closing the Title Company shall be upon disburse the basis of Purchase Price (as adjusted by prorations and credits and Seller's closing costs) to Seller and refund the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility ▇▇▇▇▇▇▇▇ Money to Tenants under Leases Purchaser, and Seller shall be adjusted as deliver possession of the Real Estate to Purchaser in the same condition as the Real Estate exists on the date of Closinghereof, ordinary wear and tear and damages caused by Purchaser, its agents or contractors excepted.
(d) All real estate transfer taxes that result from the payment of the Purchase Price under this Agreement shall be borne by the parties equally, provided, however, that D. Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as pay or give Purchaser a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment Tax”), and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all recording fees for the recording of the Deeds, and any of the Seller’s credit at Closing Documents (other than for: (i) any mortgage release required to be obtained by the Seller in accordance with Section 4State, county or local transfer or stamp taxes or similar charges; and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer and Seller shall share equally the cost of the Survey to subdivide the Propertyrecording any releases of Removable Liens or other unpermitted exceptions. Buyer Purchaser shall pay the cost of the cost recording any instruments of the all title searches, the Title Commitment conveyance and the Title Policy and any title endorsement. Each party shall bear the expense securing financing of its own counselPurchaser's acquisition.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided and except that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the expansion of any leased premises under any Lease listed on Exhibit __ hereto, following the date of Closing, and (ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and other commissions and fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required under any Lease, except (A) any Lease made with Buyer’s approval after the Execution Date, and (B) any work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Paragraph 13 shall survive Closing hereunder.
Appears in 1 contract
Sources: Real Estate Purchase Agreement (Brookdale Living Communities Inc)
Provisions With Respect to Closing. (a) A. At the Closing, Seller shall deliver possession of the Property to Buyer subject to possession by the Tenants under the Leases, and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”)::
(i) A Special Warranty Deed (“Deed”)a special warranty deed for the Property duly executed by Seller substantially in the form of Exhibit C attached hereto, in recordable form, proper form --------- for recording (the "Deed"); ----
(ii) a general assignment and ▇▇▇▇ of sale for the Property duly executed and acknowledged by Seller in favor the form of Exhibit D attached hereto; ---------
(iii) an assignment and assumption of Lease duly executed by Seller in the form of Exhibit E attached hereto, in proper form for recording --------- (the "Assignment and Assumption of Lease"); -----------------------------------
(iv) a certificate of non-foreign status duly executed by Seller;
(vi) a written confirmation executed by Seller that the representations of Seller contained in Paragraph 7.A remain true and correct as of the Closing Date (it being understood that, notwithstanding any contrary provision hereof, Buyer's sole remedy for the inability or failure of Seller to deliver such certificate shall be for Buyer to terminate this Agreement and obtain return of the Deposit, other than Paragraph 7A(vii), for which Paragraph 14 shall control);
(vii) the estoppel certificate described in Paragraph 10.C above;
(viii) evidence of the authority of the person or persons executing documents on behalf of Seller;
(ix) a certificate issued by the Illinois Department of Revenue stating that no assessed, but unpaid, tax, penalties or interest are due in connection with respect the sale of the Premises to Buyer under Section 9.02(d) of the Illinois Income Tax Act;
(x) affidavit to the Real Property owned Title Company, in the forms attached as Exhibit G; and ---------
(xi) such other documents as are contemplated under the terms of this Agreement or as required by law.
B. At the Closing, Buyer shall deliver to Seller the following, in form reasonably acceptable to Seller, conveying that portion of Seller’s fee title interest :
(i) the Purchase Price in such Real Property as the manner set forth in this Agreement to Buyer (subject only to the Permitted Exceptions) and the Deed Restrictions, in the form attached hereto as Exhibit “O”Paragraph 2.
(ii) An updated schedule the Assignment and Assumption of the Leases then in effect and an updated schedule of security deposits held Lease duly executed by Seller under the Leases, provided, however, that a default by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.;
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller Letter to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.Tenant;
(iv) A letter to evidence of the Tenants in authority of the Real Property (in form reasonably acceptable to person or persons executing documents on behalf of Buyer) signed by Seller and Buyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.; and
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and Trademarks, Permits and Licenses (“License Assignment”), in the form of Exhibit “R” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and such other documents as are contemplated under the licenses, permits, approvals and Licenses, Permits, Approvals and Trademarks, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “T” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Parking License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking License Agreement
(xi) A duly executed and acknowledged Equipment Area One License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two License Agreement.
(xiii) A duly executed and acknowledged Office Lease.
(xiv) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “X” attached hereto and made a part hereof.;
(xv) An affidavit executed by Seller and confirming that Seller is a “U.S. person” and not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”).
(xvi) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xvii) A ▇▇▇▇ of sale, in the form of Exhibit “Z” attached hereto and made a part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that title to the Personal Property so transferred by Seller is good and marketable and free and clear of all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions.
(xviii) A title affidavit in customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and customary affidavits and other instruments, organizational documents of Seller, and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to convey title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(xix) A certificate or restatement indicating that the representations and warranties of Seller made in Paragraph 5 terms of this Agreement are true and correct in all material respects or as required by law.
C. To Seller's knowledge (based on the reports or letters received by Seller upon its purchase of the Closing DateProperty), or if there have been any changesthe Illinois Responsible Property Transfer Act, a description thereof.
765 ILCS 90/1 et seq. (xx"RPTA") A settlement statement setting forth does not require that Seller ---- deliver to Buyer Environmental Disclosure Documents for Transfer of Real Property with respect to the Purchase Price and all credits and adjustments.
Premises (xxi) the "Disclosure Documents"). In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for -------------------- that Buyer's due diligence uncovers information that triggers such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxii) Release of Property from any Seller mortgage(s).
(b) At Closingrequirement, Buyer shall so notify Seller and Seller shall complete and deliver the required Disclosure Document to Buyer at the Closing. Buyer hereby waives (i) deliver its right under RPTA to Seller receive the balance of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;
(B) Intentionally Omitted;
(C) Intentionally Omitted;
(D) Intentionally Omitted;
(E) Intentionally Omitted;
(F) Intentionally Omitted;
(G) Release of Leasehold Mortgage;
(H) The Office Lease;
(I) The Lease Termination Agreement;
(J) The License Assignment;
(K) The Easement Agreement;
(L) The Overlook Area Parking License Agreement;
(M) The Overlook Area/ Lodge Area Ski License Agreement;
(N) Tubing Area Parking License Agreement (O) Equipment Area One License Agreement (P) Equipment Area Two License Agreement
(Q) The Memorandum of Right of First Refusal;
(R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this Agreement.
(S) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding the date of Disclosure Documents 30 days before the Closing. To the extent that the amounts of the items to be adjusted are not reasonably ascertainable as of the date of Closing, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained:
(i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years).
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility ▇▇▇▇▇▇▇▇ to Tenants under Leases shall be adjusted as of the date of Closing.
(d) All real estate transfer taxes that result from the payment of the Purchase Price under this Agreement shall be borne by the parties equally, provided, however, that Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment Tax”), and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all recording fees for the recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be obtained by the Seller in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required right under RPTA to void the transaction contemplated by this Agreement based upon matters that may be obtained by Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreementdisclosed in the Disclosure Documents. Buyer understands and Seller shall share equally acknowledges that the cost purpose and intent of such disclosure statements is to ensure that the parties involved in certain real estate transactions are made aware of any existing environmental liabilities associated with the ownership of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searchessubject property, the Title Commitment as well as its past use and the Title Policy and any title endorsement. Each party shall bear the expense of its own counselenvironmental status.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided and except that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the expansion of any leased premises under any Lease listed on Exhibit __ hereto, following the date of Closing, and (ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and other commissions and fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required under any Lease, except (A) any Lease made with Buyer’s approval after the Execution Date, and (B) any work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Paragraph 13 shall survive Closing hereunder.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Provisions With Respect to Closing. (a) At Closing, Seller shall deliver possession of the Property to Buyer subject to possession by the Tenants under the Leases, and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”):
(i) A Special Warranty Deed (“Deed”), in recordable form, executed and acknowledged by Seller in favor of Buyer with respect to the Real Property owned by Seller, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (subject only to the Permitted Exceptions) and the Deed Restrictions), in the form attached hereto as Exhibit “O”.
(ii) An updated schedule of the Leases then in effect and an updated schedule of security deposits held by Seller under the Leases, provided, however, that a default by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and Buyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and TrademarksTradenames, Permits and Licenses (“License Assignment”), in the form of Exhibit “RQ” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and TrademarksTradenames, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “TR” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Overlook/ Main. Parking Lot License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski Mountain Pass License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking Road “C” License Agreement.
(xi) A duly executed and acknowledged Equipment Area One Road “G” License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two Lakeside Parking License Agreement.
(xiii) Intentionally Omitted.
(xiv) A duly executed and acknowledged Equipment Area License Agreement.
(xv) A duly executed and acknowledged Office Lease.
(xivxvi) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “XS” attached hereto and made a part hereof.;
(xvxvii) An affidavit executed by Seller and confirming that Seller is a “U.S. person” and not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”).
(xvixviii) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xviixix) A ▇▇▇▇ of sale, in the form of Exhibit “ZT” attached hereto and made a part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that title to the Personal Property so transferred by Seller is good and marketable and free and clear of all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions.
(xviiixx) A title affidavit in customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and customary affidavits and other instruments, organizational documents of Seller, and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to convey title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(xixxxi) A certificate or restatement indicating that the representations and warranties of Seller made in Paragraph 5 of this Agreement are true and correct in all material respects as of the Closing Date, or if there have been any changes, a description thereof.
(xxxxii) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(xxixxiii) In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxiixxiv) Release of Property from any Seller mortgage(s).
(b) At Closing, Buyer shall (i) deliver to Seller the balance of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;omitted.
(B) Intentionally Omitted;omitted.
(C) Intentionally Omitted;omitted.
(D) Intentionally Omitted;omitted.
(E) Intentionally Omitted;omitted.
(F) Intentionally Omitted;omitted.
(G) [Release of Leasehold Mortgage;].
(H) The Office Lease;.
(I) The Lease Termination Agreement;.
(J) The License Assignment;.
(K) The Easement Agreement;.
(L) The Overlook Area Overlook/ Main Parking Lot License Agreement;.
(M) The Overlook Area/ Lodge Area Ski Mountain Pass License Agreement;.
(N) Tubing Area Parking The Road “C” License Agreement Agreement. (O) Equipment Area One The Road “G” License Agreement Agreement. (P) The Lakeside Parking License Agreement. (Q) Intentionally Omitted.
(R) The Equipment Area Two License Agreement.
(QS) The Memorandum of Right of First Refusal;.
(RT) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this Agreement.
(SU) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding the date of the Closing. To the extent that the amounts of the items to be adjusted are not reasonably ascertainable as of the date of Closing, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained:
(i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years).
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned reapportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility ▇▇▇▇▇▇▇▇ to Tenants under Leases shall be adjusted as of the date of Closing.
(d) All real estate transfer taxes that result from the payment of the Purchase Price under this Agreement shall be borne by the parties equally, provided, however, that Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment Tax”), and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all recording fees for the recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be obtained by the Seller in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer and Seller shall share equally the cost of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searches, the Title Commitment and the Title Policy and any title endorsement. Each party shall bear the expense of its own counsel.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided and except that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the expansion of any leased premises under any Lease listed on Exhibit __ G hereto, following the date of Closing, and (ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and other commissions and fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required under any Lease, except (A) any Lease made with Buyer’s approval after the Execution Date, and (B) any work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Paragraph 13 shall survive Closing hereunder.
Appears in 1 contract
Sources: Agreement of Sale (Peak Resorts Inc)
Provisions With Respect to Closing. (a) At Closing, Seller shall deliver possession of the Property to Buyer subject to possession by the Tenants under the Leases, and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”):
(i) A Special Warranty Deed (“Deed”), in recordable form, executed and acknowledged by Seller in favor of Buyer with respect to the Real Property owned by Seller, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (subject only to the Permitted Exceptions) and the Deed Restrictions, in the form attached hereto as Exhibit “O”.
(ii) An updated schedule of the Leases then in effect and an updated schedule of security deposits held by Seller under the Leases, provided, however, that a default by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and Buyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and Trademarks, Permits and Licenses (“License Assignment”), in the form of Exhibit “R” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and Trademarks, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “T” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Parking License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking License Agreement.
(xi) A duly executed and acknowledged Equipment Area One License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two License Agreement.
(xiii) A duly executed and acknowledged Office Lease.
(xiv) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “X” attached hereto and made a part hereof.;
(xv) An affidavit executed by Seller and confirming that Seller is a “U.S. person” and not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”).
(xvi) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xvii) A ▇▇▇▇ of sale, in the form of Exhibit “Z” attached hereto and made a part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that title to the Personal Property so transferred by Seller is good and marketable and free and clear of all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions.
(xviii) A title affidavit in customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and customary affidavits and other instruments, organizational documents of Seller, and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to convey title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(xix) A certificate or restatement indicating that the representations and warranties of Seller made in Paragraph 5 of this Agreement are true and correct in all material respects as of the Closing Date, or if there have been any changes, a description thereof.
(xx) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(xxi) In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxii) Release of Property from any Seller mortgage(s).
(b) At Closing, Buyer shall (i) deliver to Seller the balance of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;
(B) Intentionally Omitted;
(C) Intentionally Omitted;
(D) Intentionally Omitted;
(E) Intentionally Omitted;
(F) Intentionally Omitted;
(G) Release of Leasehold Mortgage;
(H) The Office Lease;
(I) The Lease Termination Agreement;
(J) The License Assignment;
(K) The Easement Agreement;
(L) The Overlook Area Parking License Agreement;
(M) The Overlook Area/ Lodge Area Ski License Agreement;
(N) Tubing Area Parking License Agreement (O) Equipment Area One License Agreement (P) Equipment Area Two License Agreement
(Q) The Memorandum of Right of First Refusal;
(R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this Agreement.
(S) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding the date of the Closing. To the extent that the amounts of the items to be adjusted are not reasonably ascertainable as of the date of Closing, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained:
(i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years).
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility ▇▇▇▇▇▇▇▇ to Tenants under Leases shall be adjusted as of the date of Closing.
(d) All real estate transfer taxes that result from the payment of the Purchase Price under this Agreement shall be borne by the parties equally, provided, however, that Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment Tax”), and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all recording fees for the recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be obtained by the Seller in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer and Seller shall share equally the cost of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searches, the Title Commitment and the Title Policy and any title endorsement. Each party shall bear the expense of its own counsel.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided and except that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the expansion of any leased premises under any Lease listed on Exhibit __ hereto, following the date of Closing, and (ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and other commissions and fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required under any Lease, except (A) any Lease made with Buyer’s approval after the Execution Date, and (B) any work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Paragraph 13 shall survive Closing hereunder.
Appears in 1 contract
Sources: Agreement of Sale (Peak Resorts Inc)
Provisions With Respect to Closing. (a) A. At the Closing, Seller Sellers shall deliver possession of the Property to Buyer subject to possession by the Tenants under the Leases, and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer Purchaser the following, all in addition form and substance reasonably satisfactory to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”):Purchaser:
(i1) A Special Warranty Deed (“Deed”)a trustee's deeds, in recordable form, duly executed and acknowledged by Seller in favor of Buyer with respect the Trusts, conveying to Purchaser, or Purchaser's Nominee, good, marketable and indefeasible fee simple title to the Real Property owned by SellerEstate, conveying that portion of Seller’s fee title interest Improvements and any fixtures located thereon, in such Real Property as set forth in this Agreement to Buyer (proper form for recording and subject only to the Permitted Title Exceptions) and the Deed Restrictions, in the form attached hereto as Exhibit “O”.;
(ii2) An updated schedule general warranty assignments or bills of the Leases then in effect and an updated schedule of security deposits held by Seller under the Leasessale, providedas appropriate, however, that a default by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and Buyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licensesby Sellers, Permits, Approvals and Trademarks, Permits and Licenses (“License Assignment”), in the form of Exhibit “R” attached hereto and made a part hereof, sufficient conveying to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and Trademarks, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “T” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Parking License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking License Agreement
(xi) A duly executed and acknowledged Equipment Area One License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two License Agreement.
(xiii) A duly executed and acknowledged Office Lease.
(xiv) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “X” attached hereto and made a part hereof.;
(xv) An affidavit executed by Seller and confirming that Seller is a “U.S. person” and not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”).
(xvi) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xvii) A ▇▇▇▇ of sale, in the form of Exhibit “Z” attached hereto and made a part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that Purchaser title to the Personal Property so transferred by Seller is good and marketable and Property, free and clear of all liens, encumbrances, claims and security interests and other encumbrances excepting the Leases and Permitted Exceptions.interests, with express warranties of good title;
(xviii3) A title an original executed copy of each contract or agreement that is assigned to Purchaser;
(4) an affidavit in customary formexecuted by Sellers, in favor stating Sellers' U.S. Taxpayer identification numbers and that Sellers are not "foreign persons" or "foreign corporations" (as defined under Internal Revenue Code Section 1445 and Section 7701), and that Purchaser is not required to withhold any portion of the Title Company, together with delivery by Seller Purchase Price under the provisions of such reasonable and customary affidavits and other instruments, organizational documents of Seller, and good standing certificates, reasonably requested by Act;
(5) the Title Company evidencing Policy in the power and authority of Seller to convey title form required under Paragraph 8;
(6) a certificate executed by Sellers to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(xix) A certificate or restatement indicating effect that the representations and warranties of Seller made in Paragraph 5 of this Agreement by Sellers to Purchaser are true and correct in all material respects on and as of the Closing Date, or if there have been any changes, a description thereof.
(xx) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(xxi) In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxii) Release of Property from any Seller mortgage(s).
(b) At Closing, Buyer shall (i) deliver to Seller the balance of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;
(B) Intentionally Omitted;
(C) Intentionally Omitted;
(D) Intentionally Omitted;
(E) Intentionally Omitted;
(F) Intentionally Omitted;
(G) Release of Leasehold Mortgage;
(H) The Office Lease;
(I) The Lease Termination Agreement;
(J) The License Assignment;
(K) The Easement Agreement;
(L) The Overlook Area Parking License Agreement;
(M) The Overlook Area/ Lodge Area Ski License Agreement;
(N) Tubing Area Parking License Agreement (O) Equipment Area One License Agreement (P) Equipment Area Two License Agreement
(Q) The Memorandum of Right of First Refusal;
(R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this Agreement.
(S) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding the date of the Closing. To ;
(7) a reciprocal easement and maintenance agreement pertaining to the extent that storm water management system discussed in Paragraph 30 below; (8) a temporary restrictive covenant to be placed on the amounts Real Estate designating the use of the items Real Estate for a congregate-care and assisted-living senior housing facility to be adjusted built by Purchaser pursuant to the plans previously reviewed and approved by Sellers (or such other use as may be approved in writing by Sellers at Sellers' sole discretion), which restrictive covenant shall be removed and terminated within five (5) business days after Purchaser builds such facility and receives a certificate of occupancy from the government authorities having jurisdiction over the matter; (9) a letter addressed to Purchaser whereby Sellers agree to indemnify and hold harmless Purchaser with respect to any taxes or any penalties or interest thereon pursuant to any governmental law, statute or regulation for which Purchaser is or will be liable for a withholding of funds from the Purchase Price pursuant to any so-called "bulk sales" law or other applicable law, statute or regulation; and (10) all such further instruments and documents as are not reasonably ascertainable normally made or delivered in connection with the sale of Property similar to the Premises in the county and state where the Premises is located or as may be necessary, expedient, proper, or appropriate in the reasonable opinion of Purchaser or Purchaser's counsel, in order to complete the transactions contemplated hereby. B. On the date of the Closing, they and provided that all conditions precedent to Purchaser's obligations under this Agreement are satisfied, Purchaser shall be adjusted deliver to the Title Company, as promptly after Closing as the amounts thereof can be ascertained:
(i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years).
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixedescrowee, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility ▇▇▇▇▇▇▇▇ to Tenants under Leases shall be adjusted as of the date of Closing.
(d) All real estate transfer taxes that result from the payment amount of the Purchase Price under this Agreement shall be borne by the parties equally(less credits, provided, however, that Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment Tax”), adjustments and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all recording fees for the recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be obtained by the Seller prorations in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer and Seller shall share equally the cost of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searches, the Title Commitment and the Title Policy and any title endorsement. Each party shall bear the expense of its own counselby wire transfer or other immediately available funds.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided and except that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the expansion of any leased premises under any Lease listed on Exhibit __ hereto, following the date of Closing, and (ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and other commissions and fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required under any Lease, except (A) any Lease made with Buyer’s approval after the Execution Date, and (B) any work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Paragraph 13 shall survive Closing hereunder.
Appears in 1 contract
Sources: Real Estate Purchase Agreement (Brookdale Living Communities Inc)
Provisions With Respect to Closing. (a) At Closing, Seller shall deliver possession of the Property to Buyer subject to possession by the Tenants under the Leases, and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”):
(i) A Special Warranty Deed (“Deed”), in recordable form, executed and acknowledged by Seller in favor of Buyer with respect to the Real Property owned by Seller, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (subject only to the Permitted Exceptions) and the Deed Restrictions), in the form attached hereto as Exhibit “O”.
(ii) An updated schedule of the Leases then in effect and an updated schedule of security deposits held by Seller under the Leases, provided, however, that a default by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and Buyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and TrademarksTradenames, Permits and Licenses (“License Assignment”), in the form of Exhibit “RQ” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and TrademarksTradenames, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “TR” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Overlook/ Main. Parking Lot License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski Mountain Pass License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking Road “C” License Agreement.
(xi) A duly executed and acknowledged Equipment Area One Road “G” License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two Lakeside Parking License Agreement.
(xiii) Intentionally Omitted.
(xiv) A duly executed and acknowledged Equipment Area License Agreement.
(xv) A duly executed and acknowledged Office Lease.
(xivxvi) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “XS” attached hereto and made a part hereof.;
(xvxvii) An affidavit executed by Seller and confirming that Seller is a “U.S. person” and not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”).
(xvixviii) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xviixix) A ▇▇▇▇ of sale, in the form of Exhibit “ZT” attached hereto and made a part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that title to the Personal Property so transferred by Seller is good and marketable and free and clear of all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions.
(xviiixx) A title affidavit in customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and customary affidavits and other instruments, organizational documents of Seller, and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to convey title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(xixxxi) A certificate or restatement indicating that the representations and warranties of Seller made in Paragraph 5 of this Agreement are true and correct in all material respects as of the Closing Date, or if there have been any changes, a description thereof.
(xxxxii) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(xxixxiii) In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxiixxiv) Release of Property from any Seller mortgage(s).
(b) At Closing, Buyer shall (i) deliver to Seller the balance of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;
(B) Intentionally Omitted;
(C) Intentionally Omitted;
(D) Intentionally Omitted;
(E) Intentionally Omitted;
(F) Intentionally Omitted;
(G) Release of Leasehold Mortgage;
(H) The Office Lease;
(I) The Lease Termination Agreement;
(J) The License Assignment;
(K) The Easement Agreement;
(L) The Overlook Area Parking License Agreement;
(M) The Overlook Area/ Lodge Area Ski License Agreement;
(N) Tubing Area Parking License Agreement (O) Equipment Area One License Agreement (P) Equipment Area Two License Agreement
(Q) The Memorandum of Right of First Refusal;
(R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this Agreement.
(S) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding the date of the Closing. To the extent that the amounts of the items to be adjusted are not reasonably ascertainable as of the date of Closing, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained:
(i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years).
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility ▇▇▇▇▇▇▇▇ to Tenants under Leases shall be adjusted as of the date of Closing.
(d) All real estate transfer taxes that result from the payment of the Purchase Price under this Agreement shall be borne by the parties equally, provided, however, that Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment Tax”), and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all recording fees for the recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be obtained by the Seller in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer and Seller shall share equally the cost of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searches, the Title Commitment and the Title Policy and any title endorsement. Each party shall bear the expense of its own counsel.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided and except that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the expansion of any leased premises under any Lease listed on Exhibit __ hereto, following the date of Closing, and (ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and other commissions and fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required under any Lease, except (A) any Lease made with Buyer’s approval after the Execution Date, and (B) any work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Paragraph 13 shall survive Closing hereunder.
Appears in 1 contract
Sources: Agreement of Sale (Peak Resorts Inc)
Provisions With Respect to Closing. (a) At Closing, Seller shall deliver possession of the Property to Buyer in the same condition as exists on the Execution Date, subject to possession by the Tenants under the Leasesreasonable wear and tear, and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”)::
(i) A Special Warranty Deed or Deeds (“collectively, "the Deed”"), in recordable form, executed and acknowledged by Seller in favor of Buyer with respect to the Real Property owned by Seller, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (subject only to the Permitted Exceptions) and the Deed Restrictions, in the form attached hereto as Exhibit “O”EXHIBIT "J", duly executed and acknowledged by Seller.
(ii) An updated schedule Rent rolls in the form attached hereto as EXHIBITS "D-1" and "D-2" (which shall be delivered by Seller to Buyer for review within three (3) business days prior to the Closing Date, and shall be certified by Seller to Buyer on and as of the Leases Closing Date), subject to updating to reflect then-current conditions, together with a list setting forth the names of any Tenant then in effect arrears in the payment of rent under such Tenant's Lease and an updated schedule the amount of security deposits held such arrearage, such rent roll and list to certified by Seller under the Leases, provided, however, that a default by any Tenant under any to be true and correct as of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunderDate.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) ), together with all correspondence with Tenants, and copies of all other records which materials in the Tenant lease files that are in the Seller's possession or control of Seller and which are reasonably necessary for the operation of the Propertywithin its reasonable control. All security deposits Security Deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer the keys to all locks on the Real Property and original counterparts of the Contracts, Licenses and PermitsPermits and Books and Records, or certified copies of same if Seller, using its good faith reasonable efforts, are is unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and Buyer and stating that the Property Property, the Leases and the Leases (and the Tenants’ security deposits held under the Leases) Security Deposits have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s 's designee.
(v) A letter to the vendors under the Contracts (in form reasonably acceptable to Buyer) executed by Seller and Buyer stating that future invoices are to be sent to Buyer.
(vi) An Assignment and Assumption of Leases (the "Lease Assignment") duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) by Seller, in the form of Exhibit “P” EXHIBIT "K", attached hereto and made a part hereof.
(vivii) A duly executed and acknowledged An Assignment and Assumption of Licenses, Permits, Approvals and Trademarks, Permits and Licenses (“License the "Contract Assignment”)") duly executed by Seller, in the form of Exhibit “R” EXHIBIT "L-1", attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s 's interest in, to and under the licensesContracts to Buyer, permits, approvals and Licenses, Permits, Approvals and Trademarks, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement in certain other property to be conveyed pursuant to this Agreement”), in the form of Exhibit “T” attached hereto and made a part hereof.
(viii) A An affidavit duly executed by Seller and acknowledged Overlook Area Parking License Agreementconfirming that Seller is a "U.S. person" and not a "foreign person" within the meaning of Section 1445 of the Code, in such form as is required under the Code.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski License Agreement.
Assignment and Assumption of the REA (x) A duly executed the "REA Assignment"), including the Merchandising Fund and acknowledged Tubing Area Parking License Agreement
(xi) A duly executed and acknowledged Equipment Area One License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two License Agreement.
(xiii) A duly executed and acknowledged Office Lease.
(xiv) The Memorandum of Right of First Refusal as defined in Section 24 hereofMarketing Fund, in the form of Exhibit “X” EXHIBIT "L-2", attached hereto and made a part hereof.;
(xv) An affidavit executed by Seller , sufficient to transfer and confirming that Seller is a “U.S. person” convey Seller's interest in, to and not a “foreign person” within under the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”)REA and such funds.
(xvix) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xviixi) A ▇▇▇▇ of saleSeller shall promptly request a tenant estoppel certificate (each, a "Tenant Estoppel" and collectively, the "Tenant Estoppels") in substantially the form of Exhibit “Z” EXHIBIT "M-1", attached hereto and made a part hereof, transferring hereof (or in the Personal Property (if any) and containing Seller’s warranty that title form the Tenant is required to provide pursuant to the Personal Property terms of its Lease, so transferred by Seller is good and marketable and free and clear of all lienslong as the Tenant actually provides such form), security interests and other encumbrances excepting from each Tenant under the Leases and Permitted Exceptions.
(xviii) A title affidavit Leases, with the blanks filled in customary form, in favor consistent with the terms of the Title CompanyLeases. In addition, together with delivery Seller shall promptly request estoppel certificates (each, an "REA Estoppel" and collectively, the "REA Estoppels", which may be in combined form for both the REA and the Springpenn Agreement, or may be by Seller separate estoppel forms for each thereof) in substantially the forms of such reasonable EXHIBITS "M-2" and customary affidavits EXHIBIT "M-3", attached hereto and other instruments, organizational documents of Seller, and good standing certificates, reasonably requested by made a part hereof (or in the Title Company evidencing form the power and authority of Seller to convey title party to the Property REA is required to provide pursuant to the terms of the REA or Springpenn Agreement), from each party under the REA and under the Springpenn Agreement, with the blanks filled in consistent with the terms of the REA and the Springpenn Agreement. The Tenant Estoppels and the REA Estoppels are sometimes collectively referred to as required under the "Estoppels". Notwithstanding anything to the contrary contained in this Agreement, and Buyer's obligation to enable complete Closing is contingent upon (A) receipt by Buyer, at or before Closing, of Estoppels meeting the Title Company to insure such title as contemplated in Paragraph 4 requirements of this Agreement.
subparagraph 13(a)(xi) executed by each of the Required Estoppel Parties (xixas hereinafter defined), (B) A certificate all Estoppels obtained from the Required Estoppel Parties being dated no earlier than forty-five (45) days prior to the Closing Date, and (C) no Estoppel containing any material adverse deviation from any of the statements contained in EXHIBIT "M-1" or restatement indicating that EXHIBIT "M-2" or EXHIBIT "M-3", as applicable, the representations and warranties of Seller made contained in Paragraph 5 of this Agreement are true and correct in all material respects and/or the Leases or the REA or the Springpenn Agreement, as applicable, failing any of the Closing Date, or if there have been any changes, a description thereof.
(xx) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(xxi) In the event which Buyer shall have the right to terminate this Agreement by written notice to Seller, in which event the Deposit shall be entitled returned to receive Buyer by the Escrow Agent, and neither Seller nor Buyer shall have any proceeds of insurancefurther rights, claims or the proceeds of any award obligations against one another arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for excepting the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxii) Release of Property from any Seller mortgage(s).
(b) At Closing, Buyer shall Continuing Obligations. "Required Estoppel Parties" means (i) deliver to Seller the balance Tenants occupying an aggregate of at least seventy percent (70%) of the Purchase Price rentable space in accordance with Paragraph 3(b), abovethe Improvements located on The Shopping Center Land; and (ii) each of the parties to the REA and the Springpenn Agreement other than Seller. Seller's obligation under this Paragraph 13(a)(xi) to request Estoppels shall be limited to the making of two (2) requests of a Tenant Estoppel from each Tenant and the making of two (2) requests of an REA Estoppel from each REA party and each party under the Springpenn Agreement. If a party requested to execute an Estoppel fails to execute and deliver, or cause to be executed and delivered, to Seller deliver the Estoppel within a reasonable period after one (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A1) such title affidavit request by Seller, Seller shall promptly inform Buyer and Buyer shall have the right to contact the corporate office of the Tenant or REA party or party under the Springpenn Agreement that has not delivered such other reasonable and customary affidavits and other instruments, organizational documents estoppel. Seller shall deliver to Buyer original signed Estoppels promptly after its receipt thereof. If Seller has been unable to obtain all of Buyer, partner, member or shareholder consents (if the Estoppels necessary to comply with the requirements of subparagraph 13(a)(xi) as of the date on which Closing is otherwise required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;
(B) Intentionally Omitted;
(C) Intentionally Omitted;
(D) Intentionally Omitted;
(E) Intentionally Omitted;
(F) Intentionally Omitted;
(G) Release of Leasehold Mortgage;
(H) The Office Lease;
(I) The Lease Termination Agreement;
(J) The License Assignment;
(K) The Easement Agreement;
(L) The Overlook Area Parking License Agreement;
(M) The Overlook Area/ Lodge Area Ski License Agreement;
(N) Tubing Area Parking License Agreement (O) Equipment Area One License Agreement (P) Equipment Area Two License Agreement
(Q) The Memorandum of Right of First Refusal;
(R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted occur under this Agreement, Buyer shall have the right, by written notice to Seller, at Buyer's sole option, to (i) proceed to Closing and such assignee shall deliver waive the condition set forth in subparagraph 13(a)(xi) (to Seller an original counterpart the extent unsatisfied), or (ii) postpone Closing until the date that is the tenth (10th) business day following Seller's delivery to Buyer of a written assignment and assumption of this Agreement.
(S) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding Estoppels necessary to comply with the date requirements of the Closing. To the extent subparagraph 13(a)(xi), but not later than November 16, 2005; provided, that the amounts of the items to be adjusted are not reasonably ascertainable as of by extending the date of Closing, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained:
(i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years).
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility ▇▇▇▇▇▇▇▇ to Tenants under Leases shall be adjusted as of the date of Closing.
(d) All real estate transfer taxes that result from the payment of the Purchase Price under this Agreement shall be borne by the parties equally, provided, however, that Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment Tax”), and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all recording fees for the recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be obtained by the Seller in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer and Seller shall share equally the cost of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searches, the Title Commitment and the Title Policy and any title endorsement. Each party shall bear the expense of its own counsel.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided and except that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the expansion of any leased premises under any Lease listed on Exhibit __ hereto, following the date of Closing, and (ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and other commissions and fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required under any Lease, except (A) any Lease made with Buyer’s approval after the Execution Date, and (B) any work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed waived irrevocably all conditions to Closing other than the conditions set forth in writing to assume responsibility. The provisions subparagraphs 11(a) and obligations under this Paragraph 13 shall survive Closing hereunder.13(a)
Appears in 1 contract
Sources: Agreement of Sale (Pennsylvania Real Estate Investment Trust)
Provisions With Respect to Closing. (a) At A. Prior to Closing, and provided that all conditions precedent to Seller's obligations under this Agreement are satisfied or waived in writing, Seller shall deliver to the Title Company the following:
(1) the Anderson Deed duly executed ▇▇▇ ▇▇knowledged by the Anderson Seller, conv▇▇▇▇▇ ▇▇ Purchaser fee simple title to the Property, in proper form for recording and subject only to the Permitted Title Exceptions;
(2) the Calhoun Deed duly executed ▇▇▇ acknowledged by the Calhoun Seller, conve▇▇▇▇ ▇▇ Purchaser fee simple title to the Property, in proper form for recording and subject only to the Permitted Title Exceptions;
(3) the Gaffney Ground Lease Ass▇▇▇▇▇▇▇ (counterpart to be executed by Purchaser) duly executed and acknowledged by the Gaffney Seller, conveying ▇▇ Purchaser fee simple title to the Property, in proper form for recording and subject only to the Permitted Title Exceptions;
(4) the Latham Deed duly executed ▇▇▇ acknowledged by the Latham Seller, convey▇▇▇ ▇▇ Purchaser fee simple title to the Property, in proper form for recording and subject only to the Permitted Title Exceptions;
(5) the Lee Deed duly executed and ▇▇▇nowledged by the Lee Seller, conveying to Purchaser fee simple title to the Property, in proper form for recording and subject only to the Permitted Title Exceptions;
(6) the Lodi Deed duly executed and acknowledged by the Lodi Seller, conveying to Purchaser fee simple title to the Property, in proper form for recording and subject only to the Permitted Title Exceptions;
(7) the Bill of Sale duly executed ▇▇▇ acknowledged by each applicable Seller, conveying to Purchaser title to the Personal Property;
(8) the Assignment and Assumption of Tenant Leases (counterpart to be executed by Purchaser) substantially in the form attached hereto as Exhibit F;
(9) the Assignment and Assumption of Contracts (counterpart to be executed by Purchaser) substantially in the form attached hereto as Exhibit G;
(10) An affidavit, in the form attached hereto as Exhibit Q executed each Seller, stating each Seller's U.S. Taxpayer identification number and that no Seller is not a "foreign person" (as defined under the Foreign Investment in Real Property Tax Act and the regulations promulgated thereunder) and that Purchaser is not required to withhold any portion of the Purchase Price under the provisions of such Act;
(11) The Tenant Estoppels received from Tenants as required hereunder (to the extent not already delivered to Purchaser);
(12) Such proof of each Seller's authority and authorization to enter into this Agreement and consummate the transaction contemplated hereby, and such proof of the authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Seller to act for and bind Seller, as may be reasonably required by Title Company;
(13) An estoppel generally in the form of the Tenant Estoppel attached hereto as Exhibit S; executed by the lessor pursuant to the Gaffney Ground Lease, ▇▇▇▇▇ing no defaults thereunder, or other assurance, reasonably satisfactory to Purchaser, that the Gaffney Ground Lease is in ▇▇▇▇ ▇▇rce and effect; and
(14) Letters addressed to all Tenants stating that, after the Closing, all Tenants shall pay rent pursuant to the Tenant Leases to Purchaser or its designee.
B. On the date of the Closing, and provided that all conditions precedent to Purchaser's obligations under this Agreement are satisfied or waived in writing, Purchaser shall deposit with the Title Company the amount of the Purchase Price (less credits, adjustments, and prorations in accordance with this Agreement) by wire transfer or other immediately available funds. In addition, on the date of Closing, Purchaser shall deliver to the Title Company counterparts of the documents listed in Section (A)(3), (8) and (9) above, such proof of Purchaser's authority and authorization to enter into this Agreement and consummate the transaction hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Purchaser to act for and bind Purchaser as may be reasonably required by the Title Company.
C. On the date of Closing, the Title Company shall disburse the Purchase Price (inclusive of the Earnest Money to be delive▇▇▇ ▇▇ the Title Company by the Escrow Holder), as adjusted by prorations and credits and Seller's closing costs, to Seller, and Seller shall deliver possession of the Property to Buyer subject to possession by Purchaser in the Tenants under the Leasessame condition as provided for in this Agreement, ordinary wear and tear excepted.
D. Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”):
pay: (i) A Special Warranty Deed one half of the title premiums (“Deed”)including title search fees, in recordable form, executed and acknowledged by Seller in favor but not including costs of Buyer with respect endorsements) related to the Real Property owned by SellerAnderson Site, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (subject only to the Permitted Exceptions) and the Deed Restrictions, in the form attached hereto as Exhibit “O”.
(ii) An updated schedule of the Leases then in effect and an updated schedule of security deposits held by Seller under the Leases, provided, however, that a default by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and Buyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and Trademarks, Permits and Licenses (“License Assignment”), in the form of Exhibit “R” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and Trademarks, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “T” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Parking License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking License Agreement
(xi) A duly executed and acknowledged Equipment Area One License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two License Agreement.
(xiii) A duly executed and acknowledged Office Lease.
(xiv) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “X” attached hereto and made a part hereof.;
(xv) An affidavit executed by Seller and confirming that Seller is a “U.S. person” and not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”).
(xvi) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xvii) A Calhoun ▇▇▇▇ ▇▇▇ Lodi Site; (▇▇) one half of salethe Survey costs related to Anderson Site, in the form Calhou▇ ▇▇▇▇ ▇nd Lodi Site; (▇▇▇) the cost of Exhibit “Z” attached hereto and made a part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that recording matters of title clearance by Seller to the Personal extent required pursuant to Section 5 above, (iv) the costs of having the Property so transferred by Seller is good and marketable and free and clear released from any existing financing of the Property, (v) one half of all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions.
transfer taxes or sales taxes; (xviiivi) A title affidavit in customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and customary affidavits and other instruments, organizational documents of Seller, and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to convey title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(xix) A certificate or restatement indicating that the representations and warranties of Seller made in Paragraph 5 of this Agreement are true and correct in all material respects as of the Closing Date, or if there have been any changes, a description thereof.
(xx) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(xxi) In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds one half of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(sescrow fees charged by Escrow Holder and (vii) Seller's legal fees. Purchaser shall pay for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxii) Release of Property from any Seller mortgage(s).
(b) At Closing, Buyer shall (i) deliver to Seller the balance one half of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title premiums related to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;
(B) Intentionally Omitted;
(C) Intentionally Omitted;
(D) Intentionally Omitted;
(E) Intentionally Omitted;
(F) Intentionally Omitted;
(G) Release of Leasehold Mortgage;
(H) The Office Lease;
(I) The Lease Termination Agreement;
(J) The License Assignment;
(K) The Easement Agreement;
(L) The Overlook Area Parking License Agreement;
(M) The Overlook Area/ Lodge Area Ski License Agreement;
(N) Tubing Area Parking License Agreement (O) Equipment Area One License Agreement (P) Equipment Area Two License Agreement
(Q) The Memorandum of Right of First Refusal;
(R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this Agreement.
(S) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding the date of the Closing. To the extent that the amounts of the items to be adjusted are not reasonably ascertainable as of the date of Closing, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained:
(i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years).
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixedAnderson Site, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s name and a resumption thereof, without interruption, in Buyer’s name Calhou▇ ▇▇▇▇ ▇nd Lodi Site (excluding services separately metered and billed directly to Tenants under Leases). All utility ▇▇▇▇▇ding title search fees), (ii) all title premiums related to the Gaffney Site, the Latham Si▇▇ ▇▇▇ the Lee Sit▇, (▇ii) all fees r▇▇▇ted to Tenants under Leases shall be adjusted as endorsements to any title policy, (iv) one half of the date Survey costs related to the Anderson Site, the Calhoun ▇▇▇▇ ▇▇d Lodi Site, (▇) ▇▇l Survey costs related to the Gaffney Site, the Latham Si▇▇ ▇▇▇ the Lee Si▇▇, (vi) the cost o▇ recording the Deeds, (vii) one half of Closing.
(d) All real estate all transfer taxes that result from or sales taxes, (viii) the payment of the Purchase Price under this Agreement shall be borne costs and expenses associated with any financing needed by the parties equallyPurchaser, provided, however, that Seller shall not be responsible for the payment (ix) one half of any real estate transfer taxes which are imposed escrow fees charged by Escrow Holder and (x) Purchaser's legal fees. If, as a result of the assignment no fault of this Agreement by Buyer Purchaser or Seller, Closing shall fail to any permitted assignee (“Assignment Tax”)occur, and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all recording fees for the recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be obtained by the Seller in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer Purchaser and Seller shall share equally the cost each bear one-half of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searches, the Title Commitment and the Title Policy and any title endorsement. Each party shall bear the expense of its own counsel.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided and except that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys Escrow Holder's fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the expansion of any leased premises under any Lease listed on Exhibit __ hereto, following the date of Closing, and (ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and other commissions and fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required under any Lease, except (A) any Lease made with Buyer’s approval after the Execution Date, and (B) any work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Paragraph 13 shall survive Closing hereundercharges.
Appears in 1 contract
Provisions With Respect to Closing. (a) At Closing, Seller shall deliver possession of the Property to Buyer subject to possession by the Tenants under the Leases, and Seller shall execute (where applicable) and deliver, or cause to be delivered, to Buyer the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Seller’s Closing Documents”):
(i) A Special Warranty Deed (“Deed”), in recordable form, executed and acknowledged by Seller in favor of Buyer with respect to the Real Property owned by Seller, conveying that portion of Seller’s fee title interest in such Real Property as set forth in this Agreement to Buyer (subject only to the Permitted Exceptions) and the Deed Restrictions), in the form attached hereto as Exhibit “O”.
(ii) An updated schedule of the Leases then in effect and an updated schedule of security deposits held by Seller under the Leases, provided, however, that a default 18 by any Tenant under any of the Leases, or the expiration of any of the Leases by the natural lapse of the term thereof, shall not affect Buyer’s obligation to complete Closing hereunder.
(iii) Originals of the Leases and guarantees thereof (or copies thereof certified by Seller to be true and complete if Seller is unable to locate originals thereof) and copies of all other records which are in the possession or control of Seller and which are reasonably necessary for the operation of the Property. All security deposits (including all letters of credit and other non-cash security devices), and all interest earned thereon required to be paid to the applicable Tenant(s), shall be delivered by Seller to Buyer at Closing by actual delivery of documents or sums, transfer of accounts (with delivery of all transfer documents required by the depository institution) or, in the case of cash, credit to the Purchase Price. Seller also shall deliver to Buyer original counterparts of the Licenses and Permits, or certified copies of same if Seller, using its good faith reasonable efforts, are unable in any instance to deliver originals.
(iv) A letter to the Tenants in the Real Property (in form reasonably acceptable to Buyer) signed by Seller and Buyer and stating that the Property and the Leases (and the Tenants’ security deposits held under the Leases) have been conveyed (and turned over) to Buyer and that the rent and other charges payable under the Leases thereafter should be paid to Buyer or Buyer’s designee.
(v) A duly executed and acknowledged Lease Termination Agreement (“Lease Termination Agreement”) in the form of Exhibit “P” attached hereto and made a part hereof.
(vi) A duly executed and acknowledged Assignment and Assumption of Licenses, Permits, Approvals and TrademarksTradenames, Permits and Licenses (“License Assignment”), in the form of Exhibit “RQ” attached hereto and made a part hereof, sufficient to transfer and convey the landlord’s interest in, to and under the licenses, permits, approvals and Licenses, Permits, Approvals and TrademarksTradenames, Permits and Licenses.
(vii) A duly executed and acknowledged Declaration of Covenants, Easements and Restrictions (“Easement Agreement”), in the form of Exhibit “TR” attached hereto and made a part hereof.
(viii) A duly executed and acknowledged Overlook Area Overlook/ Main Parking Lot License Agreement.
(ix) A duly executed and acknowledged Overlook Area/ Lodge Area Ski Mountain Pass License Agreement.
(x) A duly executed and acknowledged Tubing Area Parking Road “C” License Agreement.
(xi) A duly executed and acknowledged Equipment Area One Road “G” License Agreement.
(xii) A duly executed and acknowledged Equipment Area Two Lakeside Parking License Agreement.
(xiii) Intentionally Omitted.
(xiv) A duly executed and acknowledged Equipment Area License Agreement.
(xv) A duly executed and acknowledged Office Lease.
(xivxvi) The Memorandum of Right of First Refusal as defined in Section 24 hereof, in the form of Exhibit “XS” attached hereto and made a part hereof.;
(xvxvii) An affidavit executed by Seller and confirming that Seller is a “U.S. person” and not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”).
(xvixviii) Such information, if any, as may be required by the closing agent for Real Estate 1099-B Report Filing pursuant to Section 6045 of the Code.
(xviixix) A ▇▇▇▇ of sale, in the form of Exhibit “ZT” attached hereto and made a part hereof, transferring the Personal Property (if any) and containing Seller’s warranty that title to the Personal Property so transferred by Seller is good and marketable and free and clear of all liens, security interests and other encumbrances excepting the Leases and Permitted Exceptions.
(xviiixx) A title affidavit in customary form, in favor of the Title Company, together with delivery by Seller of such reasonable and customary affidavits and other instruments, organizational documents of Seller, and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Seller to convey title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(xixxxi) A certificate or restatement indicating that the representations and warranties of Seller made in Paragraph 5 of this Agreement are true and correct in all material respects as of the Closing Date, or if there have been any changes, a description thereof.
(xxxxii) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(xxixxiii) In the event Buyer shall be entitled to receive any proceeds of insurance, or the proceeds of any award arising out of any condemnation or eminent domain proceeding, or any unpaid claim(s) for such award or proceeds, under Paragraphs 7 or 8 of this Agreement, Seller shall execute and deliver to such proper instruments as shall be reasonably required for the transfer to Buyer of all right, title and interest, if any, of Seller in and to any such award, proceeds or claim to the full extent of Buyer’s entitlement thereto.
(xxiixxiv) Release of Property from any Seller mortgage(s).
(b) At Closing, Buyer shall (i) deliver to Seller the balance of the Purchase Price in accordance with Paragraph 3(b), above; and (ii) execute and deliver, or cause to be executed and delivered, to Seller (and Title Company, as appropriate) the following, in addition to all other documents mentioned elsewhere in this Agreement (collectively, Buyer’s Closing Documents”):
(i) To the Title Company:
(A) such title affidavit and such other reasonable and customary affidavits and other instruments, organizational documents of Buyer, partner, member or shareholder consents (if required in any instance by the organizational documents of Buyer or by any governing statute) and good standing certificates, reasonably requested by the Title Company evidencing the power and authority of Buyer to accept conveyance of title to the Property as required under this Agreement, and to enable the Title Company to insure such title as contemplated in Paragraph 4 of this Agreement.
(ii) To Seller:
(A) Intentionally Omitted;omitted.
(B) Intentionally Omitted;omitted.
(C) Intentionally Omitted;omitted.
(D) Intentionally Omitted;omitted.
(E) Intentionally Omitted;omitted.
(F) Intentionally Omitted;omitted.
(G) [Release of Leasehold Mortgage;].
(H) The Office Lease;.
(I) The Lease Termination Agreement;.
(J) The License Assignment;.
(K) The Easement Agreement;.
(L) The Overlook Area Overlook/ Main Parking Lot License Agreement;.
(M) The Overlook Area/ Lodge Area Ski Mountain Pass License Agreement;.
(N) Tubing Area Parking The Road “C” License Agreement Agreement. (O) Equipment Area One The Road “G” License Agreement Agreement. (P) Equipment Area Two The Lakeside Parking License Agreement
. (Q) The Memorandum of Right of First Refusal;
Intentionally Omitted. (R) In the event the interest of Buyer under this Agreement shall be assigned in any manner permitted under this Agreement, Buyer and such assignee shall deliver to Seller an original counterpart of a written assignment and assumption of this The Equipment Area License Agreement.
(S) A settlement statement setting forth the Purchase Price and all credits and adjustments.
(c) The following items shall be prorated and adjusted as of midnight of the date preceding the date of the Closing. To the extent that the amounts of the items to be adjusted are not reasonably ascertainable as of the date of Closing, they shall be adjusted as promptly after Closing as the amounts thereof can be ascertained:
(i) Real estate taxes for the fiscal tax year(s) in which the Closing shall occur (and Seller shall pay all real estate taxes for all prior fiscal tax years).
(ii) Utility (including, without limitation, electricity, gas, steam, telephone and, water and sewer charges), if any, not otherwise separately metered and billed directly to Tenants under Leases by utility providers. If the Closing Date shall occur before the current water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made on the date of Closing shall be upon the basis of the water or sewer rates for the preceding year applied to the latest assessed valuation and in each case, the same shall be re-apportioned upon issuance of the actual bills for the periods in question. Seller shall furnish readings of the water, electric and other utility meters at the Property on or as near as reasonably possible to the date of Closing. Seller shall cooperate with Buyer to provide, as of such date, for a cancellation of electricity and other utility services in Seller’s name and a resumption thereof, without interruption, in Buyer’s name (excluding services separately metered and billed directly to Tenants under Leases). All utility ▇▇▇▇▇▇▇▇ to Tenants under Leases shall be adjusted as of the date of Closing.
(d) All real estate transfer taxes that result from the payment of the Purchase Price under this Agreement shall be borne by the parties equally, provided, however, that Seller shall not be responsible for the payment of any real estate transfer taxes which are imposed as a result of the assignment of this Agreement by Buyer to any permitted assignee (“Assignment Tax”), and provided further that Buyer shall be solely responsible for the payment of any Assignment Tax. Buyer shall pay for all recording fees for the recording of the Deeds, and any of the Seller’s Closing Documents (other than (i) any mortgage release required to be obtained by the Seller in accordance with Section 4, and (ii) any subordination, non-disturbance and attornment agreement required to be obtained by Seller pursuant to this Agreement) and Buyer’s Closing Documents to be recorded pursuant to this Agreement. Buyer and Seller shall share equally the cost of the Survey to subdivide the Property. Buyer shall pay the cost of the cost of the all title searches, the Title Commitment and the Title Policy and any title endorsement. Each party shall bear the expense of its own counsel.
(e) Buyer shall pay all sales and use taxes imposed in connection with the transfer of the Personal Property.
(f) At or before Closing, Seller shall pay all brokerage, leasing and other commissions and fees due and payable for the current term (and any preceding terms) of each Lease existing as of the Execution Date and any Leases hereafter made by Seller without first obtaining the approval of Buyer; provided and except that Buyer shall assume in writing, and shall reimburse to Seller and shall pay when due and payable (and shall indemnify and hold Seller harmless from and against (including all reasonable attorneys fees and costs)) all brokerage, leasing and other commissions and fees and associated expenses: (i) becoming due and payable on account of any renewal or extension of any Lease, or the expansion of any leased premises under any Lease listed on Exhibit __ hereto, following the date of Closing, and (ii) becoming due and payable after the Execution Date on account of any Leases made with Buyer’s approval following the Execution Date, or any extensions, renewals or expansions of existing Leases through the exercise, after the Execution Date, of rights of extension, renewal or expansion now contained in any Lease or pursuant to any other renewals, extensions or expansions made with Buyer’s approval following the Execution Date. At or prior to Closing, Seller shall provide to Buyer written statements from all parties to be paid brokerage, leasing and other commissions and fees for which Seller is responsible under this subparagraph (f), confirming that all such brokerage, leasing and other commissions and fees have been paid by Seller in full. At Closing Seller shall have performed all work required under any Lease, except (A) any Lease made with Buyer’s approval after the Execution Date, and (B) any work requested by any Tenant (in connection with any renewal, extension or expansion, or otherwise) and approved by Buyer for which Buyer shall have agreed in writing to assume responsibility. The provisions and obligations under this Paragraph 13 shall survive Closing hereunder.
Appears in 1 contract