Due Diligence Materials. From and after the execution of this Agreement, throughout the entire Study Period and thereafter until the Closing, in order to facilitate the Purchaser's due diligence review and the consummation of the transaction contemplated hereunder, the Purchaser shall have access to, upon reasonable prior notice and during normal business hours, the copies of the following materials (collectively, the "Due Diligence Materials"): (i) the Lease Documents and the Bradenton, FL Documents, (ii) the Loan Documents, (iii) the Brookline Ground Lease and the Ground Leases, (iv) the Organizational Documents, (v) any other document or instrument specifically identified herein other than the Intercompany Notes, the Permits and the Permitted Exceptions (including, without limitation, the HUD Financing Documents, Alabaster, AL Purchase Option, the Cash Conversion Letters, the Existing Title Policies, the Intercreditor Agreements, the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S), (vi) any other document or instrument that the Sellers are required to deliver to the Purchaser hereunder (other than as set forth in Section 8.2), (vii) the closing binders relating to the transactions evidenced by the Loan Documents, Lease Documents and the Bradenton, FL Documents, (viii) the materials in the possession of MMI and the Subsidiaries or the possession of their bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, relating to any of the Bankruptcy Proceedings and (ix) all other current file materials (including, without limitation, any material correspondence from and after January 1, 2000 between any Meditrust Entity and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating to the Facilities and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating to any Tenant, any Borrower, any Guarantor and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect to any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, the Purchaser may make copies of all such Due Diligence Materials and the Meditrust Entities shall reasonably cooperate to facilitate any requests made by the Purchaser. The Purchaser recognizes, however, that the Meditrust Entities also need access to such Due Diligence Materials in order to operate their business and to comply with their obligations hereunder. In addition to the Due Diligence Materials and without limiting the obligations of the Meditrust Entities under Sections 3.3(b), 3.3(k) and 3.3(j), the Meditrust Entities shall use reasonable efforts to provide to the Purchaser (at the Purchaser's sole cost and expense) copies of any other materials pertaining to the Assets, the Securities, the Properties, the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such as title insurance examinations, surveys, etc.), the Purchaser may request such materials from the Meditrust Entities to the extent necessary to facilitate the Purchaser's review (however, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials relating to the Properties),
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Due Diligence Materials. From and after the execution of this Agreement, throughout the entire Study Period and thereafter until the Closing, in order to facilitate the 67 <PAGE> Purchaser's due diligence review and the consummation of the transaction contemplated hereunder, the Purchaser shall have access to, upon reasonable prior notice and during normal business hours, the copies of the following materials (collectively, the "Due Diligence Materials"): (i) the Lease Documents and the Bradenton, FL Documents, (ii) the Loan Documents, (iii) the Brookline Ground Lease and the Ground Leases, (iv) the Organizational Documents, (v) any other document or instrument specifically identified herein other than the Intercompany Notes, the Permits and the Permitted Exceptions (including, without limitation, the HUD Financing Documents, Alabaster, AL Purchase Option, the Cash Conversion Letters, the Existing Title Policies, the Intercreditor Agreements, the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S), (vi) any other document or instrument that the Sellers are required to deliver to the Purchaser hereunder (other than as set forth in Section 8.2), (vii) the closing binders relating to the transactions evidenced by the Loan Documents, Lease Documents and the Bradenton, FL Documents, (viii) the materials in the possession of MMI and the Subsidiaries or the possession of their bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, relating to any of the Bankruptcy Proceedings and (ix) all other current file materials (including, without limitation, any material correspondence from and after January 1, 2000 between any Meditrust Entity and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating to the Facilities and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating to any Tenant, any Borrower, any Guarantor and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect to any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, the Purchaser may make copies of all such Due Diligence Materials and the Meditrust Entities shall reasonably cooperate to facilitate any requests made by the Purchaser. The Purchaser recognizes, however, that the Meditrust Entities also need access to such Due Diligence Materials in order to operate their business and to comply with their obligations hereunder. In addition to the Due Diligence Materials and without limiting the obligations of the Meditrust Entities under Sections 3.3(b), 3.3(k) and 3.3(j), the Meditrust Entities shall use reasonable efforts to provide to the Purchaser (at the Purchaser's sole cost and expense) copies of any other materials pertaining to the Assets, the Securities, the Properties, the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such as title insurance examinations, surveys, etc.), the Purchaser may request such materials from the Meditrust Entities to the extent necessary to facilitate the Purchaser's review (however, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials relating to the Properties),, 68 <PAGE> (2) if any of such materials are generally available to the public (without the necessity of filing a request under the Freedom of Information Act), the Purchaser will not request such materials from the Meditrust Entities, PROVIDED, HOWEVER, that the Purchaser may request copies of any public filings made by any of the Meditrust Entities, (3) in light of the fact that many of the Loans and the Leased Properties have been owned by the applicable Meditrust Entities for several years, it may not be reasonably possible for the Meditrust Entities to be able to locate copies of such materials to provide the Purchaser and (4) except for the Express Representations and Warranties, the Meditrust Entities make no representation or warranty concerning such materials.
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Sources: Purchase and Sale Agreement
Due Diligence Materials. From and Within five (5) days after the execution of this AgreementContract Date, throughout the entire Study Period and thereafter until the Closing, in order Seller shall deliver to facilitate the Purchaser's due diligence review and the consummation of the transaction contemplated hereunder, the Purchaser shall have access to, upon reasonable prior notice and during normal business hours, the copies of various materials relating to the following materials Project to the extent in Seller’s possession (collectively, the "“Due Diligence Materials"): (i) the Lease Documents and the Bradenton, FL Documents, (ii) the Loan Documents, (iii) the Brookline Ground Lease and the Ground Leases, (iv) the Organizational Documents, (v) any other document or instrument specifically identified herein other than the Intercompany Notes, the Permits and the Permitted Exceptions (including, without limitation, the HUD Financing Documents, Alabaster, AL Purchase Option, the Cash Conversion Letters, the Existing Title Policies, the Intercreditor Agreements, the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S), (vi) any other document or instrument that the Sellers are required to deliver to the Purchaser hereunder (other than as set forth in Section 8.2), (vii) the closing binders relating to the transactions evidenced by the Loan Documents, Lease Documents and the Bradenton, FL Documents, (viii) the materials in the possession of MMI and the Subsidiaries or the possession of their bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, relating to any of the Bankruptcy Proceedings and (ix) all other current file materials (including, without limitation, any material correspondence from and after January 1, 2000 between any Meditrust Entity and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating to the Facilities and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating to any Tenant, any Borrower, any Guarantor and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect to any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇”). At its sole cost and expense, the Purchaser may make copies of all such The Due Diligence Materials and the Meditrust Entities shall reasonably cooperate to facilitate any requests made by the Purchaserbe delivered to Purchaser are listed on Exhibit 2.3 attached hereto. The Purchaser recognizes, however, that the Meditrust Entities also need access agrees not to such Due Diligence Materials in order to operate their business and to comply with their obligations hereunder. In addition to disclose the Due Diligence Materials to anyone other than its directors, officers, lenders, agents, advisors and without limiting attorneys who are directly involved in conducting due diligence with respect to the obligations Project or reviewing and approving the transactions contemplated in this Contract and then only if Purchaser has directed such directors, officers, lenders, agents, advisors and attorneys to keep the Due Diligence Materials strictly confidential. Upon termination of the Meditrust Entities under Sections 3.3(b), 3.3(k) and 3.3(j)this Contract for any reason, the Meditrust Entities Due Diligence Materials (together with all copies thereof) shall use reasonable efforts to provide to the Purchaser (be, at the Purchaser's sole cost and expense) copies written request of any other materials pertaining to the AssetsSeller, the Securities, the Properties, the Borrowers, the Tenants and/or the Guarantors that the promptly destroyed by Purchaser may reasonably request, it being acknowledged and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such as title insurance examinations, surveys, etc.), the Purchaser may request such materials from the Meditrust Entities to the extent necessary to facilitate Purchaser has made or received copies thereof. This obligation survives the Purchaser's review termination of this Contract. IT IS ACKNOWLEDGED THAT THE DUE DILIGENCE MATERIALS INCLUDE REPORTS, INVESTIGATIONS, FINDINGS, ANALYSES, CONCLUSIONS, DATA AND OTHER INFORMATION WHICH MAY BE OR HAVE BEEN PREPARED BY THIRD PARTIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PURCHASER AGREES THAT: (howeverA) SELLER HAS NOT MADE, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials relating to the Properties),AND SHALL NOT BE DEEMED TO HAVE MADE, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OF THE INFORMATION CONSTITUTING THE DUE DILIGENCE MATERIALS OR THE CONCLUSIONS CONTAINED THEREIN OR THE QUALIFICATIONS OF THE PERSONS WHO HAVE PREPARED THE DUE DILIGENCE MATERIALS, OR ANY PART THEREOF, AND (B) PURCHASER’S RELIANCE ON THE DUE DILIGENCE MATERIALS IN DETERMINING WHETHER TO PURCHASE THE PROJECT SHALL BE AT PURCHASER’S OWN RISK AND SELLER SHALL HAVE NO LIABILITY THEREFOR. THE DUE DILIGENCE MATERIALS ARE DELIVERED OR MADE AVAILABLE WITHOUT REPRESENTATION OR WARRANTY BY SELLER (EXPRESS OR IMPLIED) EXCEPT AS CONTEMPLATED BY THE FOLLOWING SENTENCE. TO THE BEST OF SELLER’S KNOWLEDGE, THE DUE DILEGENCE MATERIALS ARE TRUE AND CORRECT COPIES.
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Due Diligence Materials. From Prior to the Execution Date, Seller has or made available to Purchaser at Seller’s office in Phoenix, Arizona and after at Seller’s property management office at the execution of this Agreement, throughout the entire Study Period and thereafter until the Closing, in order to facilitate the Purchaser's due diligence review and the consummation of the transaction contemplated hereunder, the Purchaser shall have access to, upon reasonable prior notice and during normal business hours, the Real Property copies of the following materials documents relating to the Property (collectively, to the "Due Diligence Materials"): extent in Seller’s possession):
(i) copies of all the Lease Documents and the Bradenton, FL Documents, Contracts;
(ii) the Loan Documentsengineering and architectural studies, earthquake and structural reports, soil and environmental assessment reports and related documents, geotechnical and physical inspection reports including hazardous materials and asbestos reports, if any;
(iii) a copy of the Brookline Ground Lease and the Ground Leases, (iv) the Organizational Documents, (v) any other document or instrument specifically identified herein other than the Intercompany Notes, the Permits and the Permitted Exceptions (including, without limitation, the HUD Financing Documents, Alabaster, AL Purchase Option, the Cash Conversion Letters, the Existing Title Policies, the Intercreditor Agreements, the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S), (vi) any other document or instrument that the Sellers are required to deliver to the Purchaser hereunder (other than as set forth in Section 8.2), (vii) the closing binders relating to the transactions evidenced by the Loan Documents, Lease Documents and the Bradenton, FL Documents, (viii) the materials in the possession of MMI and the Subsidiaries or the possession of their bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇tax ▇▇▇▇ & ▇▇▇▇▇▇▇, relating to any issued for the most recent two years for real estate taxes;
(iv) copies of the Bankruptcy Proceedings and (ix) all other current file materials Leases (including, without limitation, any material correspondence from lease guaranties) along with a rent roll and after January 1schedule of security deposits;
(v) monthly income and expense statements, 2000 between any Meditrust Entity balance sheets and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating to the Facilities and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating to any Tenant, any Borrower, any Guarantor and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect to any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, the Purchaser may make copies of all such Due Diligence Materials and the Meditrust Entities shall reasonably cooperate to facilitate any requests made by the Purchaser. The Purchaser recognizesexcluding, however, that any of Seller’s financial information analyzing the Meditrust Entities also need access to such Due Diligence Materials in order to operate their business and to comply with their obligations hereunder. In addition to the Due Diligence Materials and without limiting the obligations value of the Meditrust Entities under Sections 3.3(b)Property) reflecting the operations of the Property for the calendar years 2008, 3.3(k2009, 2010 and year-to-date through September 30, 2011;
(vi) the Permits, plans, building inspection approvals, governmental agreements and 3.3(j)governmental documents;
(vii) all warranties and guarantees;
(viii) Operating Expense reimbursement calculations for the calendar years 2008, the Meditrust Entities shall use reasonable efforts to provide to the Purchaser 2009, 2010 and year-to-date through September 30, 2011;
(at the Purchaser's sole cost and expenseix) copies aged receivables reports;
(x) Tenant certificates of insurance;
(xi) Copies of any non-privileged reports, studies or other materials pertaining to the AssetsProperty in addition to the items listed in (i) through (x) above; and
(xii) Copies of any non-privileged communications with respect to the items listed in (i) through (xi) above. The foregoing deliveries were made by Seller to accommodate and facilitate Purchaser’s investigations relating to the Property prior to the Execution Date, the Securitiesbut, the Propertiesexcept as expressly set forth in Sections 6, the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such as title insurance examinations, surveys, etc.9(b), 20(b) and 22(a) and any Seller Certificate or Closing Document, Seller makes no representations or warranties of any kind regarding the Purchaser may request such accuracy or thoroughness of the information contained in the materials from the Meditrust Entities delivered to the extent necessary to facilitate the Purchaser's review (however, the . Purchaser acknowledges that it Purchaser currently manages the Property for Seller and, as such, may have access to certain of the documents, materials and items described in this Section 5(c). To the extent Purchaser does not intend have access to any such documents, materials and it would not items described in this Section 5(c), Seller shall be reasonable obligated to request that provide such documents, materials and items in accordance with the Meditrust Entities produce copies provisions of all such materials relating to the Properties),this Section 5(c) as requested by Purchaser.
Appears in 1 contract
Due Diligence Materials. From (a) With reasonable promptness, Seller, at Seller’s expense, shall deliver to Purchaser the following items which comply with the requirements set forth herein:
(i) any title insurance policies insuring title to the Land in the possession of or reasonably available to Seller or Seller’s agents, counsel or consultants;
(ii) “as-built” plans and after specifications (the execution “Plans”) in the possession of this Agreementor reasonably available to Seller or Seller’s agents, throughout counsel or consultants;
(iii) copies of any existing leases, if any, between Seller and tenants of the entire Study Period Premises (the “Subleases”);
(iv) To the extent in the possession of or reasonably available to Seller or Seller’s agents, counsel or consultants, copies of (A) all licenses, permits and thereafter until approvals issued or granted by any governmental authority with respect to the Closing, in order to facilitate development of the Purchaser's due diligence review Land and the consummation construction of the transaction contemplated hereunder, Improvements pursuant to the Purchaser shall have access to, upon reasonable prior notice Plans; and during normal business hours, (B) all development agreements between Seller and any governmental authorities with respect to the development of the Land and the construction of the Improvements;
(v) copies of the following materials certificate(s) of occupancy for buildings located on each Parcel;
(vi) copies of all environmental reports, engineering reports, soil reports and property condition reports with respect to each Property in the possession of or reasonably available to Seller or Seller’s agents, counsel or consultants; and
(vii) a certified ALTA/NSPS “as built” survey (each, a “Survey” and collectively, the "Due Diligence Materials"): “Surveys”) of each Property, together with six (i6) the Lease Documents copies thereof, in form and the Bradentonsubstance reasonably satisfactory to Purchaser and prepared by Landco, FL DocumentsL.P. or a surveyor otherwise acceptable to Purchaser, (ii) the Loan Documents, (iii) the Brookline Ground Lease showing such Property separately by metes and the Ground Leases, (iv) the Organizational Documents, (v) any other document or instrument specifically identified herein other than the Intercompany Notes, the Permits bounds and the Permitted Exceptions (includingshowing, without limitation, the HUD Financing Documentslocation of all existing buildings and dimensions thereof and all set back lines, Alabasterall improvements and parking areas (including the number of parking spaces therein) and the location thereof and the extent of any and all existing utility and other easements on such Property which are shown on the title commitment or are visible from the surface. The Survey shall satisfy the following requirements: (A) such Survey was prepared (or updated to a date) within forty-five (45) days of the Effective Date, AL Purchase Option(B) such Survey complies with the “Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys,” jointly established and adopted by ALTA and NSPS in 2016, the Cash Conversion Lettersincluding Items 1, the Existing Title Policies2, the Intercreditor Agreements3, the Meditrust Assignment and Assumption Agreements4, the Concord Option Agreement6, the Stamford, CT P&S7(a), 7(b)(1), 7(c), 8, 9, 10 [only where party-walls are a factor], 13, 14, 16, 17, 18, and 20 of Table A of such Requirements, (viC) any other document or instrument that such Survey shows all exceptions set forth on the Sellers are required Commitment (as defined below) and (D) such Survey is certified to deliver to Purchaser and the Purchaser hereunder Title Company (as defined in Section 4(b)(ii) of this Agreement).
(b) Purchaser, at Seller’s expense (other than as set forth in Section 8.2with respect to Purchaser’s internal costs and Purchaser’s legal fees and expenses), shall promptly begin the selection process for qualified professionals and shall order the following items within five (vii5) business days after the closing binders relating full execution of this Agreement:
(i) an owner’s title insurance commitment and copies of all title exception documents referenced therein (collectively, the “Commitment”) with respect to the transactions evidenced each Property issued by the Loan DocumentsFidelity National Title Insurance Company, Lease Documents and the Bradenton, FL Documents, (viii) the materials in the possession of MMI and the Subsidiaries or the possession of their bankruptcy counselNational Business Unit, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇ (the “Title Company”), for an ALTA 2006 Form policy with extended coverage and such endorsements as requested by Purchaser bearing a date subsequent to the date of this Agreement;
(ii) a current and complete Phase I environmental site assessment for each Property (collectively, the “Environmental Audit”), which is in a form and substance acceptable to Purchaser and conducted by The Vertex Companies or another environmental inspection company reasonably acceptable to Purchaser.
(iii) a current zoning report with respect to each Property (collectively, the “Zoning Report”), which is in a form and substance acceptable to Purchaser and prepared by IVI Due Diligence Services, Inc.;
(iv) a current property condition assessment with respect to each Property (collectively, the “Engineering Report”), which is in a form and substance acceptable to Purchaser and prepared by an engineering company acceptable to Purchaser; and
(v) a current MAI appraisal of each Property in form and substance satisfactory to Purchaser (individually, an “Appraisal” and collectively, the “Appraisals”), prepared by an appraiser selected by Purchaser and reasonably acceptable to Seller. Notwithstanding the foregoing, Seller and Purchaser hereby agree that CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, relating to any of the Bankruptcy Proceedings and (ix) all other current file materials (including, without limitation, any material correspondence from and after January 1, 2000 between any Meditrust Entity and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating to the Facilities and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating to any Tenant, any Borrower, any Guarantor and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ , ▇▇▇▇▇ ▇▇▇ Partners, Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall be deemed to be reasonably acceptable to both Purchaser and Seller.
(c) The materials referred to in Sections 4(a) and 4(b) are hereinafter collectively referred to as the “Due Diligence Materials.” The date upon which the last of the Due Diligence Materials in form reasonably acceptable to Purchaser are delivered to Purchaser is referred to herein as the “Delivery Date.” Seller will promptly advise Purchaser of those documents that it does not have in its possession.
(d) Purchaser shall have until such date that is forty-five (45) days after the Delivery Date (the “Due Diligence Period”) within which to object in writing to the matters reflected in the Due Diligence Materials. If Purchaser shall timely provide Seller with any such objection, Seller shall within ten (10) days thereafter (i) remove or cure any such matters to which Purchaser has objected or (ii) enter into an agreement in form and substance acceptable to Purchaser to remove or cure such matters prior to Closing and proceed to Closing. If Seller shall fail to remove or cure, or agree to remove or cure, such matters to which Purchaser has objected within such ten (10) day period or if in the judgment of Purchaser such matters cannot be cured or if any title or survey defect appears between the expiration of the Due Diligence Period and Closing, then Purchaser shall (it being understood that Purchaser shall not have any claim for damages or injunctive relief on account thereof) have the right to proceed to waive such objections or title or survey defect and proceed to Closing or may terminate this Agreement with respect to any or all Properties (unless, in the case of any title or survey defect, Seller agrees to remove such defect prior to Closing, or causes Title Company to insure over it in a manner reasonably satisfactory to Purchaser, in which case Purchaser must close on such Property) or close on such Property without any reduction in the Purchase Price for such Property. Notwithstanding the foregoing, Purchaser may terminate this Agreement with respect to one or more of the Properties, in Purchaser’s sole discretion; provided, however, that in the event of such partial termination, Seller shall have the right to terminate this Agreement in its entirety. If Seller does not elect to terminate this Agreement in its entirety pursuant to the previous sentence, then the Purchase Price shall be reduced to reflect the elimination of the applicable Property or Properties by the amount allocated to such Property(ies). In the event of such termination with respect to all Properties the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect Money shall be returned to Purchaser and neither party shall have any materials relating to further obligation under this Agreement except as specifically set forth herein. Notwithstanding any of the Bankruptcy Proceedings foregoing, Seller, at Seller’s expense, shall be obligated (a) to cause the real property taxes for the Premises to be paid current at or any Tenantprior to Closing, any Borrower and/or any Guarantor that is (b) to cause the subject release of any monetary judgments levied against the Premises at or prior to Closing; (c) to cause the termination and release of all ground leases affecting the Bankruptcy ProceedingsPremises (including any memorandum thereof) at or prior to Closing; and (d) to cause the release of all monetary liens encumbering the Premises at or prior to Closing. In the event there are any liens encumbering the Premises at the time of Closing (the “Removable Liens”), then Seller shall have the right, as an alternative to paying and obtaining a release for any such Removable Liens, (i) to “bond over” such Removable Liens at or prior to Closing in accordance with applicable law, so long as such procedure results as a matter of law in such Removable Liens being removed from the Premises or (ii) to “insure over” such Removable Liens in accordance with applicable law and applicable title insurance regulations and underwriting requirements, by obtaining the Title Company’s agreement to issue a fee owner’s policy of title insurance to Purchaser for the Premises and a lender’s policy of title insurance to Purchaser’s lender with affirmative insurance against such Removable Liens; provided that, such title insurance shall be reasonably acceptable to Purchaser. All costs, fees or expenses incurred to obtain a bond and/or to insure over any such Removable Liens shall be paid by Seller. In connection with any insuring over of Removable Liens, Seller also shall be responsible for providing any indemnification required by the Title Company. Seller further covenants and agrees that in all events Seller shall be and remain obligated, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, to obtain a termination or release of any Removable Liens that are insured over prior to the Purchaser may make copies date on which the claimant(s) of all such Due Diligence Materials and the Meditrust Entities shall reasonably cooperate to facilitate any requests made by the PurchaserRemovable Liens obtain a judgment for foreclosure of such Removable Liens. The Purchaser recognizes, however, that obligations of Seller under this Section 4 shall survive the Meditrust Entities also need access Closing. Any matters which are reflected in the Commitment or Survey delivered prior to such Due Diligence Materials in order to operate their business and to comply with their obligations hereunder. In addition to the expiration of the Due Diligence Materials Period and without limiting to which (a) Purchaser does not object within the obligations of the Meditrust Entities under Sections 3.3(b)Due Diligence Period or (b) Purchaser expressly waives, 3.3(k) and 3.3(j)in writing, the Meditrust Entities shall use reasonable efforts be deemed to provide be permitted exceptions to the Purchaser status of Seller’s title (at the “Permitted Exceptions”). Nothing contained in this Section 4 shall be deemed to limit Purchaser's sole cost and expense) copies of any other materials pertaining ’s right to object to matters, which are first included in an update to the AssetsCommitment or Survey following the Due Diligence Period. With respect to any such matters, the Securities, the Properties, the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged shall promptly provide any objections to such new matters and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such objections shall be handled as title insurance examinations, surveys, etcset forth in this Section 4.), the Purchaser may request such materials from the Meditrust Entities to the extent necessary to facilitate the Purchaser's review (however, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials relating to the Properties),
Appears in 1 contract
Due Diligence Materials. From and after the execution of this Agreement, throughout the entire Study Period and thereafter until the Closing, in order to facilitate the Purchaser's due diligence review and the consummation of the transaction contemplated hereunder, the Purchaser shall have access to, upon reasonable prior notice and during normal business hours, the copies of Seller has already provided Buyer with the following materials (collectively, the "Due Diligence Materials"): ):
(ia) Financial records and statements for the Lease Documents Realty consisting of: (1) monthly operating statements for the Realty for the two (2) immediately preceding twelve (12) month periods and the Bradentoncurrent year to date, FL Documentsand (2) audited, consolidated annual financial statements for the preceding three (ii3) the Loan Documents, fiscal years [FURNISHED PRIOR TO THE OPENING OF ESCROW];
(iiib) the Brookline Ground Lease and the Ground Leases, (iv) the Organizational Documents, (v) any other document or instrument specifically identified herein other than the Intercompany Notes, the Permits and the Permitted Exceptions (including, without limitation, the HUD Financing Documents, Alabaster, AL Purchase Option, the Cash Conversion Letters, the Existing Title Policies, the Intercreditor Agreements, the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S), (vi) any other document or instrument that the Sellers are required to deliver Access to the Purchaser hereunder Realty by Buyer, its agents or representatives pursuant to Section 8.6 below to inspect any matter deemed relevant by Buyer, including without limitation the physical condition of every portion thereof, and to determine the availability, capacity and costs of utilities [ACCOMPLISHED PRIOR TO THE OPENING OF ESCROW];
(other than as set forth in Section 8.2), (viic) To the closing binders relating to the transactions evidenced by the Loan Documents, Lease Documents and the Bradenton, FL Documents, (viii) the materials extent in the possession of MMI Seller, "as built" mechanical, electrical and structural plans and specifications for the Subsidiaries or Improvements [MADE AVAILABLE TO BUYER'S CONSULTANTS PRIOR TO THE OPENING OF ESCROW];
(d) To the extent in the possession of their bankruptcy counselSeller, ▇▇▇▇▇▇▇▇, ▇▇true and correct copies of soils reports for the Realty [FURNISHED PRIOR TO THE OPENING OF ESCROW];
(e) True and correct copies of all of the Leases and the MWEAC Ground Leases [FURNISHED PRIOR TO OPENING OF ESCROW];
(f) The ▇▇▇▇▇ & ▇▇▇▇▇▇▇, relating Entitlement Reports [FURNISHED PRIOR TO THE OPENING OF ESCROW];
(g) Access to any insurance certificates of the Bankruptcy Proceedings Tenants and Tenant payment records [MADE AVAILABLE PRIOR TO THE OPENING OF ESCROW];
(ixh) True and correct copies of all other current file materials Property Reports, including any Phase I and Phase II environmental investigations or audits of any part of the Realty, in the possession of Seller [FURNISHED PRIOR TO THE OPENING OF ESCROW];
(including, without limitation, any material correspondence from i) True and after January 1, 2000 between any Meditrust Entity and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys correct copies of all Permits in the possession of Seller [FURNISHED PRIOR TO THE OPENING OF ESCROW];
(j) A schedule of all the Service Contracts [FURNISHED PRIOR TO THE OPENING OF ESCROW];
(k) Access to Seller's files relating to the Facilities and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating to any Tenant, any Borrower, any Guarantor and/or Manatee SpringsRealty [ACCOMPLISHED PRIOR TO THE OPENING OF ESCROW]; and
(l) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect to any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, the Purchaser may make copies of all such Due Diligence Materials and the Meditrust Entities shall reasonably cooperate to facilitate any requests made by the Purchaser. The Purchaser recognizes, however, that the Meditrust Entities also need access to such Due Diligence Materials in order to operate their business and to comply with their obligations hereunder. In addition to the Due Diligence Materials and without limiting the obligations of the Meditrust Entities under Sections 3.3(b), 3.3(k) and 3.3(j), the Meditrust Entities shall use reasonable efforts to provide to the Purchaser (at the Purchaser's sole cost and expense) copies of any other materials pertaining to the Assets, the Securities, the Properties, the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such as title insurance examinations, surveys, etcSurveys [FURNISHED FOR ALL THE REALTY PRIOR TO THE OPENING OF ESCROW].), the Purchaser may request such materials from the Meditrust Entities to the extent necessary to facilitate the Purchaser's review (however, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials relating to the Properties),
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mission West Properties/New/)
Due Diligence Materials. From and after (a) Notwithstanding any provision contained herein to the execution of this Agreementcontrary, throughout the entire Study Period and thereafter until the Closing, in order to facilitate the Purchaser's due diligence review and Agreement is expressly contingent upon Seller obtaining all regulatory approvals as may be required for the consummation of the transaction contemplated hereunder, by this Agreement (the Purchaser shall “Regulatory Approvals”). Seller will have access to, a period of time commencing upon reasonable prior notice the Effective Date and during normal business hours, ending on such date that is forty-five (45) days after the copies of Effective Date (the following materials (collectively, the "“Notice Due Diligence Materials"): (iDate”) the Lease Documents and the Bradenton, FL Documents, (ii) the Loan Documents, (iii) the Brookline Ground Lease and the Ground Leases, (iv) the Organizational Documents, (v) any other document or instrument specifically identified herein other than the Intercompany Notes, the Permits and the Permitted Exceptions (including, without limitation, the HUD Financing Documents, Alabaster, AL Purchase Option, the Cash Conversion Letters, the Existing Title Policies, the Intercreditor Agreements, the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S), (vi) any other document or instrument that the Sellers are required to deliver to Purchaser a written notice (the Purchaser hereunder (other than as set forth “Regulatory Approvals Notice”) indicating that Seller has obtained any and all necessary or appropriate Regulatory Approvals, if any, for the consummation of the transactions contemplated by this Agreement and that the condition, which is contained in this Section 8.24(a), has been satisfied. In the event that Seller does not deliver the Regulatory Approvals Notice within two (vii2) business days following the closing binders relating to Notice Due Date, then this Agreement will terminate, the transactions evidenced by the Loan Documents, Lease Documents and the Bradenton, FL Documents, (viii) the materials in the possession of MMI and the Subsidiaries or the possession of their bankruptcy counsel, E▇▇▇▇▇▇▇▇▇ Money will be returned to Purchaser, Seller shall pay the Transaction Costs that Seller is responsible for pursuant to Section 16 hereof and, except as otherwise set forth herein, the parties will have no further obligations to each other.
(b) With reasonable promptness, Seller, at Seller’s expense, shall deliver to Purchaser the following items which comply with the requirements set forth herein:
(i) any survey(s), map(s) and/or plat(s) of the Land currently in the possession or control of Seller;
(ii) any existing title insurance policies insuring title to the Land for the benefit of Seller or a lender to Seller in the possession or control of Seller;
(iii) any existing “as-built” plans and specifications in the possession or control of Seller;
(iv) copies of any existing leases, if any, between Seller or the Company and tenants of the Premises (the “Subleases”); and
(v) any copies of the certificate(s) of occupancy to related to the buildings on the Land in the possession or control of Seller. Purchaser acknowledges that any of the information provided pursuant to this Section 4(b) was obtained from a variety of sources and Seller has not made any independent investigation or verification of such information; and, except as specifically set forth in this Agreement or in the deed, Seller does not make any representations as to the accuracy or completeness of such information.
(c) Following the delivery of the Regulatory Approvals Notice, Purchaser shall promptly begin the selection process for qualified professionals, and after obtaining Seller’s written approval with respect to the providers and cost thereof, Purchaser shall promptly obtain the following items:
(i) a certified ALTA/ACSM “as built” survey (the “Survey”) of the Premises, together with six (6) copies thereof, in form and substance reasonably satisfactory to Purchaser and prepared by The M▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇Company, relating to any of showing the Bankruptcy Proceedings Premises separately by metes and (ix) all other current file materials (includingbounds and showing, without limitation, the location of all existing buildings and dimensions thereof and all set-back lines, all improvements and parking areas (including the number of parking spaces therein) and the location thereof and the extent of any material correspondence and all existing utility and other easements on the Premises which are shown on the title commitment or are visible from the surface;
(ii) an owner’s title insurance commitment and after January 1copies of all title exception documents referenced therein (collectively, 2000 between any Meditrust Entity and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating the “Commitment”) with respect to the Facilities Premises issued by Escrow Agent for an ALTA 2006 Form policy with extended coverage and such endorsements as requested by Purchaser bearing a date subsequent to the BradentonEffective Date;
(iii) a current complete Phase I environmental site assessment of the Premises (the “Environmental Audit”), FL Facility financial statements and/or other financial information which is in a form and substance reasonably acceptable to Purchaser and conducted by an environmental inspection company acceptable to Purchaser;
(iv) a current property condition assessment of the Premises (the “Engineering Report”), which is in a form and substance reasonably acceptable to Purchaser and prepared by an engineering company acceptable to Purchaser;
(v) a current zoning report (the “Zoning Report”) for the Premises, which is in a form and relating substance reasonably acceptable to Purchaser and prepared by IVI Due Diligence Services, Inc.; and
(vi) a current MAI appraisal in form and substance reasonably satisfactory to Purchaser (the “Appraisal”), prepared by an appraiser acceptable to Purchaser. The materials referred to in Sections 4(b) and 4(c) are hereinafter collectively referred to as the “Due Diligence Materials.” Seller shall not unreasonably withhold, condition or delay its approval of the providers and costs of any Tenantof the Due Diligence Materials referenced in Section 4(c). Notwithstanding any of the foregoing, any Borrowerif Seller shall fail to provide its approval or refusal to consent with respect to a request for approval within four (4) business days after Seller’s receipt of such request, any Guarantor and/or Manatee Springs) relating Seller shall be deemed to have consented to the Propertiesprovider and cost of such Due Diligence Materials. The date upon which the last of the Due Diligence Materials in form reasonably acceptable to Purchaser are delivered to Purchaser is referred to herein as the “Delivery Date.” Purchaser shall promptly deliver written notice to Seller of the Delivery Date upon receipt of the last of the Due Diligence Materials. Notwithstanding the foregoing, the Bradenton, FL Leased Property, Delivery Date shall be no later than such date that is thirty (30) days after Seller has approved or has been deemed to have approved the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business last of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ providers and costs of any of the Due Diligence Materials referenced in Section 4(c). Purchaser shall have until such date that is thirty (30) days after the Delivery Date (the “Due Diligence Period”) within which to object in writing to the substantive matters reflected in the Due Diligence Materials. If Purchaser shall timely provide Seller with any such objection, Seller shall within fifteen (15) days thereafter (the “Cure Period”) (i) remove or cure any such matters to which Purchaser has objected or (ii) enter into an agreement in form and substance reasonably acceptable to Purchaser to remove or cure such matters prior to Closing and proceed to Closing. If Seller shall fail to remove or cure, or agree to remove or cure, such matters to which Purchaser has objected within such Cure Period or if in the judgment of Purchaser such matters cannot be cured or if any title defect appears between the expiration of the Due Diligence Period and Closing, then Purchaser shall have the right to proceed to waive such objections or title defect and proceed to Closing (without any adjustment to the Purchase Price) or terminate this Agreement by delivering a written termination notice within five (5) business days after the expiration of the Cure Period. In the event of such termination the E▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect Money shall be returned to Purchaser and neither party shall have any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, the Purchaser may make copies of all such Due Diligence Materials and the Meditrust Entities shall reasonably cooperate to facilitate any requests made by the Purchaser. The Purchaser recognizes, however, that the Meditrust Entities also need access to such Due Diligence Materials in order to operate their business and to comply with their obligations hereunder. In addition to the Due Diligence Materials and without limiting the obligations of the Meditrust Entities further obligation under Sections 3.3(b), 3.3(k) and 3.3(j), the Meditrust Entities shall use reasonable efforts to provide to the Purchaser (at the Purchaser's sole cost and expense) copies of any other materials pertaining to the Assets, the Securities, the Properties, the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such this Agreement except as title insurance examinations, surveys, etcspecifically set forth herein.), the Purchaser may request such materials from the Meditrust Entities to the extent necessary to facilitate the Purchaser's review (however, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials relating to the Properties),
Appears in 1 contract
Due Diligence Materials. From and (a) Within fifteen (15) business days after the execution of this AgreementEffective Date, throughout the entire Study Period and thereafter until the Closing, in order Seller will deliver or cause to facilitate the Purchaser's due diligence review and the consummation of the transaction contemplated hereunder, the Purchaser shall have access to, upon reasonable prior notice and during normal business hours, the be delivered to Buyer copies of the following materials documents to the extent the same are in Seller’s possession (collectivelyherein, the "“Due Diligence Materials"): ”), which Seller will have the option of delivering in an electronic format such as by e-mail or via a web-based data room: any prior survey (i) the Lease Documents and the Bradenton, FL Documents, (ii) the Loan Documents, (iii) the Brookline Ground Lease and the Ground Leases, (iv) the Organizational Documents, (v) any other document whether one or instrument specifically identified herein other than the Intercompany Notesmore, the Permits “Prior Survey”) and the Permitted Exceptions copies of all environmental reports, soil studies, or other geotechnical studies.
(including, without limitation, the HUD Financing Documents, Alabaster, AL Purchase Option, the Cash Conversion Letters, the Existing Title Policies, the Intercreditor Agreements, the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S), (vib) any other document or instrument that the Sellers are required to deliver to the Purchaser hereunder (other than as set forth in Section 8.2), (vii) the closing binders relating to the transactions evidenced by the Loan Documents, Lease Documents and the Bradenton, FL Documents, (viii) the materials in the possession of MMI and the Subsidiaries or the possession of their bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇acknowledges and agrees that, relating to any except for the representations and warranties of Seller expressly set forth in Section 8 hereof, Seller delivers or makes available the Bankruptcy Proceedings and (ix) all other current file materials (including, Due Diligence Materials described in this Section 4 without limitation, any material correspondence from and after January 1, 2000 between any Meditrust Entity and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating representation or warranty as to the Facilities accuracy thereof, and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating to any Tenant, any Borrower, any Guarantor and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇specifically acknowledges and agrees that Seller shall have no liability or responsibility for any inaccuracy thereof. Buyer, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices relying on its own evaluation of the Meditrust Entities' counselProperty, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect to disclaims any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, the Purchaser may make copies of all such Due Diligence Materials and the Meditrust Entities shall reasonably cooperate to facilitate any requests made by the Purchaser. The Purchaser recognizes, however, that the Meditrust Entities also need access to such Due Diligence Materials in order to operate their business and to comply with their obligations hereunder. In addition to reliance on the Due Diligence Materials and without limiting or on any statements (oral or written) which may have been made or may be made by Seller, Seller’s broker, or any other party, concerning the obligations of the Meditrust Entities under Sections 3.3(bDue Diligence Materials. BUYER ACKNOWLEDGES AND UNDERSTANDS THAT THE DUE DILIGENCE MATERIALS AND ANY OTHER INFORMATION PROVIDED OR MADE AVAILABLE TO BUYER PURSUANT TO THIS AGREEMENT MAY HAVE BEEN PREPARED BY PARTIES OTHER THAN SELLER AND THAT NEITHER SELLER NOR ANY OF ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE MEMBERS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, BROKERS OR CONTRACTORS MAKE NOR HAVE MADE ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE COMPLETENESS, CONTENT OR ACCURACY THEREOF. BUYER SPECIFICALLY RELEASES SELLER, AND ITS AFFILIATES AND THEIR RESPECTIVE MEMBERS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, BROKERS AND CONTRACTORS FROM ALL CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES WHETHER SUIT IS INSTITUTED OR NOT), 3.3(k) and 3.3(j)WHETHER KNOWN OR UNKNOWN, the Meditrust Entities shall use reasonable efforts to provide to the Purchaser (at the Purchaser's sole cost and expense) copies of any other materials pertaining to the AssetsLIQUIDATED OR CONTINGENT, the SecuritiesASSERTED AGAINST OR INCURRED BY BUYER BY REASON OF THE INFORMATION CONTAINED IN, the PropertiesOR THAT SHOULD HAVE BEEN CONTAINED IN, the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such as title insurance examinations, surveys, etcSUCH DUE DILIGENCE MATERIALS OR OTHER INFORMATION.), the Purchaser may request such materials from the Meditrust Entities to the extent necessary to facilitate the Purchaser's review (however, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials relating to the Properties),
Appears in 1 contract
Sources: Contract of Sale
Due Diligence Materials. From (a) Sellers, at Sellers’ expense, shall deliver to Purchaser the following items which comply with the requirements set forth herein:
(i) Within five (5) days of the Effective Date, “as-built” plans and after specifications in Sellers’ possession, if any;
(ii) A copy of Sellers’ title policies together with copies of all exception documents referenced therein in Sellers’ possession;
(iii) Copies of all surveys, zoning reports, environmental reports, engineering reports, soil reports, and property condition reports in the possession of Sellers simultaneously upon execution of this Agreement, throughout Agreement by Sellers but in no event later than five (5) days after the entire Study Period and thereafter until the Closing, in order to facilitate the Purchaser's due diligence review and the consummation Effective Date; and
(iv) Within five (5) days of the transaction contemplated hereunderEffective Date, the Purchaser shall have access to, upon reasonable prior notice and during normal business hours, the copies of all certificates of occupancy, licenses, permits and approvals issued or granted by any governmental authority with respect to the Subject Property in the possession of Sellers, if any.
(b) Purchaser may order the following materials (collectively, the "Due Diligence Materials"): items at Purchaser’s sole cost and expense:
(i) an “as built” survey (the Lease Documents “Survey”) of the Subject Property, in form and substance reasonably satisfactory to Purchaser, showing the Bradenton, FL Documents, (ii) the Loan Documents, (iii) the Brookline Ground Lease Subject Property separately by metes and the Ground Leases, (iv) the Organizational Documents, (v) any other document or instrument specifically identified herein other than the Intercompany Notes, the Permits bounds and the Permitted Exceptions (includingshowing, without limitation, the HUD Financing Documentslocation of all existing buildings and dimensions thereof and all set-back lines, Alabaster, AL Purchase Optionall improvements and parking areas (including the number of parking spaces therein) and the location thereof and the extent of any and all existing utility and other easements on the Subject Property which are shown on the title commitment or are visible from the surface.
(ii) an owner’s title insurance commitment and copies of all title exception documents referenced therein (collectively, the Cash Conversion Letters“Commitment”) with respect to the Subject Property issued by a nationally recognized title company selected by Purchaser, for a policy with extended coverage and such endorsements as requested by Purchaser bearing a date subsequent to the Existing Title Policies, date of this Agreement;
(iii) a current complete Phase I environmental site assessment of the Intercreditor Agreements, Subject Property (the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S“Environmental Audit”), which is in a form and substance acceptable to Purchaser and conducted by an environmental inspection company acceptable to Purchaser;
(iv) a current zoning report (the “Zoning Report”) for the Subject Property, which is in a form and substance acceptable to Purchaser;
(v) a current property condition assessment of the Subject Property (the “Engineering Report”), which is in a form and substance acceptable to Purchaser and prepared by an engineering company acceptable to Purchaser; and
(vi) any other document or instrument that a current MAI appraisal in form and substance satisfactory to Purchaser (the Sellers are required to deliver to the Purchaser hereunder (other than as set forth in Section 8.2“Appraisal”), (vii) the closing binders relating to the transactions evidenced by the Loan Documents, Lease Documents and the Bradenton, FL Documents, (viii) the materials in the possession of MMI and the Subsidiaries or the possession of their bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, relating to any of the Bankruptcy Proceedings and (ix) all other current file materials (including, without limitation, any material correspondence from and after January 1, 2000 between any Meditrust Entity and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating to the Facilities and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating an appraiser acceptable to any Tenant, any Borrower, any Guarantor and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect to any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, the Purchaser may make copies of all such Due Diligence Materials and the Meditrust Entities shall reasonably cooperate to facilitate any requests made by the Purchaser. The Purchaser recognizes, however, that materials referred to in Sections 4(a) and 4(b) are hereinafter collectively referred to as the Meditrust Entities also need access to such “Due Diligence Materials Materials”. Purchaser shall have from the Effective Date until the Closing (the “Due Diligence Period”) to provide to Sellers written objections, if any, to the matters reflected in order to operate their business and to comply with their obligations hereunder. In addition to the Due Diligence Materials Materials. If Purchaser does not timely object to any matter reflected in the Due Diligence Materials, Purchaser shall be deemed to have waived the right to object to such matter. If Purchaser shall timely provide Sellers with any such objection, Sellers may, but shall not be obligated to, within ten (10) days thereafter (i) remove or cure any such matters to which Purchaser has objected or (ii) enter into an agreement in form and without limiting substance acceptable to Purchaser to remove or cure such matters prior to Closing and proceed to Closing. If (a) Sellers shall fail to remove or cure, or fail to agree to remove or cure, such matters to which Purchaser has objected within such ten (10)-day period or (b) in the obligations reasonable judgment of Purchaser such matters cannot be cured prior to Closing, Purchaser may terminate this Agreement by written notice to Sellers on or before 5:00 PM Central Time on such tenth (10th) day, time being of the Meditrust Entities essence. If Purchaser does not timely terminate this Agreement under Sections 3.3(b)the preceding sentence, 3.3(k) and 3.3(j), the Meditrust Entities Purchaser shall use reasonable efforts be deemed to provide have waived any matter to which Purchaser has objected which has not been cured by Sellers or which Sellers have not agreed in writing to cure. Notwithstanding any provision of this Agreement to the Purchaser contrary, if (at the Purchaser's sole cost and expensex) copies of any other materials pertaining matter agreed by Sellers in writing to be cured prior to Closing is not cured prior to Closing or (y) any material new defect first attaches to title to the AssetsSubject Property before Closing, then Purchaser shall, as its sole and exclusive remedy, have the Securitiesoption either to waive such objections or new title defect and proceed to Closing with no adjustment of the Purchase Price or to terminate this Agreement by written notice to Seller no later than noon Central Time on the Closing Date, time being of the Propertiesessence. If Purchaser does not timely terminate this Agreement as provided in the immediately preceding sentence, Purchaser shall be deemed to have elected to proceed to Closing. In the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged and agreed that (1) if any event of such materials are being updated or replaced by the Purchaser (such termination, neither party shall have any further obligation under this Agreement except as title insurance examinations, surveys, etcspecifically set forth herein.), the Purchaser may request such materials from the Meditrust Entities to the extent necessary to facilitate the Purchaser's review (however, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials relating to the Properties),
Appears in 1 contract
Sources: Purchase and Sale Agreement (Bank of the Ozarks Inc)
Due Diligence Materials. From and after Within two (2) Business Days of the execution effective date of this Agreement, throughout Seller agrees to provide Buyer with certain information and materials pertaining to the entire Study Period and thereafter until Property, including but not limited to the Closing, in order to facilitate the Purchaser's due diligence review and the consummation of the transaction contemplated hereunder, the Purchaser shall have access to, upon reasonable prior notice and during normal business hours, the copies of the following materials following: (collectively, the "Due Diligence Materials"): )
(ia) true, correct and complete copies of the Lease Documents Contracts, whether or not cancelable upon thirty (30) days' notice;
(b) copies of all plans, specifications, and drawings of the BradentonImprovements within the possession of Seller;
(c) copies of all environmental, FL Documentsstructural engineering, soils, roofing, plumbing, heating air conditioning, and ventilation specifications and reports within the possession of Seller;
(iid) copies of ad valorem tax receipts for the Loan Documentslast three (3) calendar years;
(e) a listing of all utility accounts billed to or in the name of Seller; to the extent utilities can be split, Seller and Buyer will share that cost equally;
(iiif) copies of all maintenance records relating to the Brookline Ground Lease and Property which are in the Ground Leases, (iv) the Organizational Documents, (v) any other document possession or instrument specifically identified herein other than the Intercompany Notes, the Permits and the Permitted Exceptions control of Seller (including, without limitation, limitation any inspection reports);
(g) a listing and detailed description of any pending litigation involving Seller and/or affecting the HUD Financing Documents, Alabaster, AL Purchase Option, the Cash Conversion Letters, the Existing Title Policies, the Intercreditor Agreements, the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S), Property;
(vih) any other document or instrument that the Sellers are required to deliver to the Purchaser hereunder (other than as set forth in Section 8.2), (vii) the closing binders copies of all documentation relating to compliance of the transactions evidenced by the Loan DocumentsProperty with applicable zoning ordinances deed restrictions, Lease Documents and the Bradenton, FL Documents, (viii) the materials in governmental regulations within the possession of MMI Seller;
(i) audited financial statements of Seller for the last three years ended December 31, 2014. Such audited financial statements and the Subsidiaries or report of the possession accountant may contain limitations consistent with those expressed in the reports of their bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇PriceWaterhouseCoopers AG regarding financial reports of S▇▇▇▇▇ & ▇▇▇▇▇▇▇for the years 2012, relating 2013 and 2014. It is understood that such financial statements may be prepared in accordance with “IFRS” (International Financial Reporting Standards). Buyer will not disclose such financial statements to any other party without the prior written consent of Seller; and
(j) copies of any existing surveys of the Bankruptcy Proceedings Property ("Existing Surveys") within the possession of Seller. Buyer acknowledges and (ix) agrees that all other current file materials (including, without limitation, any material correspondence Due Diligence Materials and information obtained from and after January 1, 2000 between any Meditrust Entity and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating to the Facilities and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating to any Tenant, any Borrower, any Guarantor and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect to any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, the Purchaser may make copies of all such Due Diligence Materials are deemed confidential, and the Meditrust Entities shall reasonably cooperate Buyer agrees to facilitate any requests made by the Purchaser. The Purchaser recognizes, however, that the Meditrust Entities also need access to keep such Due Diligence Materials in order to operate their business information confidential and to comply with their obligations hereunder. In addition prevent its dissemination to the Due Diligence Materials persons other than Buyer's employees, representatives, agents, contractors, and without limiting the obligations affiliates involved in this transaction, governmental authorities of the Meditrust Entities under Sections 3.3(b)whom Buyer must make inquiry as part of its due diligence, 3.3(k) and 3.3(j)prospective lenders, the Meditrust Entities shall use reasonable efforts to provide to the Purchaser (at the Purchaser's sole cost and expense) copies investors, and/or assigns of any other materials pertaining to the Assets, the Securities, the Properties, the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such as title insurance examinations, surveys, etcBuyer.), the Purchaser may request such materials from the Meditrust Entities to the extent necessary to facilitate the Purchaser's review (however, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials relating to the Properties),
Appears in 1 contract
Sources: Purchase and Sale Agreement (Educational Development Corp)
Due Diligence Materials. From Seller has delivered or made available to Purchaser via a diligence website maintained by the Seller (the “Data Room”), copies of the due diligence materials listed on Exhibit 4.1(f) (the “Due Diligence Materials”). Subject only to the express representations and after warranties of Seller set forth in Section 6.1, Purchaser acknowledges and agrees that the execution of Due Diligence Materials are provided simply as an accommodation to Purchaser and except as otherwise expressly provided elsewhere in this Agreement, throughout Seller makes no representation or warranty with regards to the entire Study Period accuracy and thereafter until completeness of any document or information, including the ClosingDue Diligence Materials, provided by Seller to Purchaser, and any reliance by Purchaser on such documents and information shall be at Purchaser’s own risk and expense. In addition, and notwithstanding anything in order this Agreement to facilitate the Purchaser's due diligence contrary, Purchaser expressly acknowledges and agrees that Seller shall not be obligated to furnish, nor shall Purchaser be entitled to review and the consummation of the transaction contemplated hereunder, the Purchaser shall or have access to, upon reasonable prior notice and during normal business hoursany confidential, proprietary or privileged documents or information connected with the copies of the following materials (collectivelyProperties, the "Due Diligence Materials"): (i) the Lease Documents and the Bradentonincluding but not limited to opinions, FL Documentsappraisals, (ii) the Loan Documentsaudits, (iii) the Brookline Ground Lease and the Ground Leasesinternal memoranda or other confidential, (iv) the Organizational Documentsproprietary or privileged documents, (v) any internal work product or other document or instrument specifically identified herein other than the Intercompany Notessimilar documents, the Permits and the Permitted Exceptions (including, without limitation, the HUD Financing Documents, Alabaster, AL Purchase Option, the Cash Conversion Letters, the Existing Title Policies, the Intercreditor Agreements, the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S), (vi) any other document or instrument that the Sellers which are required to deliver to the Purchaser hereunder (other than as set forth in Section 8.2), (vii) the closing binders relating to the transactions evidenced by the Loan Documents, Lease Documents and the Bradenton, FL Documents, (viii) the materials in the possession or control of MMI and the Subsidiaries or the possession of their bankruptcy counselSeller. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ▇▇▇▇▇▇▇▇SELLER HAS NOT UNDERTAKEN ANY INDEPENDENT INVESTIGATION OF, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇AND MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER AS TO THE TRUTH, relating to any of the Bankruptcy Proceedings and (ix) all other current file materials (includingACCURACY OR COMPLETENESS OF, without limitationANY MATERIALS OR INFORMATION, any material correspondence from and after January 1INCLUDING BUT NOT LIMITED TO THE DUE DILIGENCE MATERIALS AND ANY OTHER MATERIALS RELATING TO THE PROPERTIES, 2000 between any Meditrust Entity and any TenantDELIVERED OR MADE AVAILABLE BY OR ON BEHALF OF SELLER TO PURCHASER IN CONNECTION WITH THE TRANSACTION CONTEMPLATED HEREIN EXCEPT, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating to the Facilities and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating to any Tenant, any Borrower, any Guarantor and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect to any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, the Purchaser may make copies of all such Due Diligence Materials and the Meditrust Entities shall reasonably cooperate to facilitate any requests made by the Purchaser. The Purchaser recognizes, however, that the Meditrust Entities also need access to such Due Diligence Materials in order to operate their business and to comply with their obligations hereunder. In addition to the Due Diligence Materials and without limiting the obligations of the Meditrust Entities under Sections 3.3(b), 3.3(k) and 3.3(j), the Meditrust Entities shall use reasonable efforts to provide to the Purchaser (at the Purchaser's sole cost and expense) copies of any other materials pertaining to the Assets, the Securities, the Properties, the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such as title insurance examinations, surveys, etcIN EACH CASE AS OTHERWISE EXPRESSLY SET FORTH IN THE REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH IN SECTION 6.1.), the Purchaser may request such materials from the Meditrust Entities to the extent necessary to facilitate the Purchaser's review (however, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials relating to the Properties),
Appears in 1 contract
Sources: Purchase and Sale Agreement (First Real Estate Investment Trust of New Jersey)
Due Diligence Materials. From Prior to the Execution Date, Seller has or made available to Purchaser at Seller’s office in Phoenix, Arizona and after at Seller’s property management office at the execution of this Agreement, throughout the entire Study Period and thereafter until the Closing, in order to facilitate the Purchaser's due diligence review and the consummation of the transaction contemplated hereunder, the Purchaser shall have access to, upon reasonable prior notice and during normal business hours, the Real Property copies of the following materials documents relating to the Property (collectively, to the "Due Diligence Materials"): extent in Seller’s possession):
(i) copies of all the Lease Documents and the Bradenton, FL Documents, Contracts;
(ii) the Loan Documentsengineering and architectural studies, earthquake and structural reports, soil and environmental assessment reports and related documents, geotechnical and physical inspection reports including hazardous materials and asbestos reports, if any;
(iii) a copy of the Brookline Ground Lease and the Ground Leases, (iv) the Organizational Documents, (v) any other document or instrument specifically identified herein other than the Intercompany Notes, the Permits and the Permitted Exceptions (including, without limitation, the HUD Financing Documents, Alabaster, AL Purchase Option, the Cash Conversion Letters, the Existing Title Policies, the Intercreditor Agreements, the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S), (vi) any other document or instrument that the Sellers are required to deliver to the Purchaser hereunder (other than as set forth in Section 8.2), (vii) the closing binders relating to the transactions evidenced by the Loan Documents, Lease Documents and the Bradenton, FL Documents, (viii) the materials in the possession of MMI and the Subsidiaries or the possession of their bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇tax ▇▇▇▇ & ▇▇▇▇▇▇▇, relating to any issued for the most recent two years for real estate taxes;
(iv) copies of the Bankruptcy Proceedings and (ix) all other current file materials Leases (including, without limitation, any material correspondence from lease guaranties) along with a rent roll and after January 1schedule of security deposits;
(v) monthly income and expense statements, 2000 between any Meditrust Entity balance sheets and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating to the Facilities and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating to any Tenant, any Borrower, any Guarantor and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect to any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, the Purchaser may make copies of all such Due Diligence Materials and the Meditrust Entities shall reasonably cooperate to facilitate any requests made by the Purchaser. The Purchaser recognizesexcluding, however, that any of Seller’s financial information analyzing the Meditrust Entities also need access to such Due Diligence Materials in order to operate their business and to comply with their obligations hereunder. In addition to the Due Diligence Materials and without limiting the obligations value of the Meditrust Entities under Sections 3.3(b)Property) reflecting the operations of the Property for the calendar years 2007, 3.3(k2008, 2009 and year-to-date through August 31, 2010;
(vi) the Permits, plans, building inspection approvals, governmental agreements and 3.3(j)governmental documents;
(vii) all warranties and guarantees;
(viii) Operating Expense reimbursement calculations for the calendar years 2007, the Meditrust Entities shall use reasonable efforts to provide to the Purchaser 2008, 2009 and year-to-date through August 31, 2010;
(at the Purchaser's sole cost and expenseix) copies aged receivables reports;
(x) Tenant certificates of insurance;
(xi) Copies of any non-privileged reports, studies or other materials pertaining to the Assets, the Securities, the Properties, the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such as title insurance examinations, surveys, etc.), the Purchaser may request such materials from the Meditrust Entities Property in addition to the extent necessary items listed in (i) through (x) above; and
(xii) Copies of any non-privileged communications with respect to the items listed in (i) through (xi) above. The foregoing deliveries were made by Seller to accommodate and facilitate the Purchaser's review (however, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials ’s investigations relating to the PropertiesProperty prior to the Execution Date, but, except as expressly set forth in Sections 6, 9(b),, 20(b) and 22(a) and any Seller Certificate or Closing Document, Seller makes no representations or warranties of any kind regarding the accuracy or thoroughness of the information contained in the materials delivered to Purchaser.
Appears in 1 contract
Due Diligence Materials. From and after the execution of this Agreement(a) With reasonable promptness, throughout the entire Study Period and thereafter until the ClosingSeller, in order at Seller’s expense, shall deliver to facilitate the Purchaser's due diligence review and the consummation of the transaction contemplated hereunder, the Purchaser shall have access to, upon reasonable prior notice and during normal business hours, the copies of the following materials (collectively, items which comply with the "Due Diligence Materials"): requirements set forth herein:
(i) a certified ALTA/ACSM “as built” survey (the Lease Documents “Survey”) of each Parcel, together with six (6) copies thereof, in form and the Bradentonsubstance reasonably satisfactory to Purchaser and prepared by a surveyor approved by Purchaser, FL Documents, (ii) the Loan Documents, (iii) the Brookline Ground Lease showing such Parcel separately by metes and the Ground Leases, (iv) the Organizational Documents, (v) any other document or instrument specifically identified herein other than the Intercompany Notes, the Permits bounds and the Permitted Exceptions (includingshowing, without limitation, the HUD Financing Documentslocation of all existing buildings and dimensions thereof and all set-back lines, Alabaster, AL Purchase Optionall improvements and parking areas (including the number of parking spaces therein) and the location thereof and the extent of any and all existing utility and other easements on such Parcel which are shown on the title commitment or are visible from the surface.
(ii) an owner’s title insurance commitment and copies of all title exception documents referenced therein (collectively, the Cash Conversion Letters“Commitment”) with respect to each Parcel issued by First American Title Insurance Company, the Existing Title PoliciesNational Commercial Services, the Intercreditor Agreements, the Meditrust Assignment and Assumption Agreements, the Concord Option Agreement, the Stamford, CT P&S), (vi) any other document or instrument that the Sellers are required to deliver to the Purchaser hereunder (other than as set forth in Section 8.2), (vii) the closing binders relating to the transactions evidenced by the Loan Documents, Lease Documents and the Bradenton, FL Documents, (viii) the materials in the possession of MMI and the Subsidiaries or the possession of their bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, relating to any of the Bankruptcy Proceedings and (ix) all other current file materials (including, without limitation, any material correspondence from and after January 1, 2000 between any Meditrust Entity and any Tenant, any Borrower, any Guarantor and/or Manatee Springs, state surveys relating to the Facilities and the Bradenton, FL Facility financial statements and/or other financial information prepared by and relating to any Tenant, any Borrower, any Guarantor and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased Property, the Lease Documents, the Loan Documents and the Bradenton, FL Documents maintained by the Meditrust Entities (either at the principal place of business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with respect to any materials relating to any of the Bankruptcy Proceedings or any Tenant, any Borrower and/or any Guarantor that is the subject of any of the Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (the “Title Company”), for an ALTA Form B policy with extended coverage and such endorsements as requested by Purchaser bearing a date subsequent to the date of this Agreement. Notwithstanding the foregoing, Seller and Purchaser agree to cause the Title Company to use Pulaski Title Insurance Company as its local title agent with respect to the Commitment and the policy of title insurance;
(iii) a current and complete Phase I environmental site assessment for each Parcel (collectively, the “Environmental Audit”), which Environmental Audit is addressed to Purchaser and prepared by NPN Environmental Engineers, Inc.;
(iv) “as-built” plans and specifications (to the extent that such plans and specifications are in the possession of or otherwise readily available to Seller or Seller’s agents, consultants or representatives);
(v) copies of any existing leases, if any, between Seller and tenants of the Premises (the “Subleases”);
(vi) copies of the certificate(s) of occupancy for buildings located on each Parcel; and
(vii) A letter from the governmental department having zoning jurisdiction over the Premises in the form typically delivered by such department to the effect that the Premises fully complies with all zoning, ordinances, regulations, licenses and permits required by any such governmental department having jurisdiction over the Premises.
(b) Purchaser, at Seller’s expense, shall promptly begin the selection process for qualified professionals and thereafter order the following items:
(i) a current property condition assessment on each Parcel (collectively, the “Engineering Report”) prepared by an engineering company acceptable to Purchaser; and
(ii) a current MAI appraisal of each Parcel (collectively, the “Appraisal”) prepared by an appraiser acceptable to Purchaser. The materials referred to in subsections 4(a)(i) through 4(a)(vii) and 4(b)(i) through 4(b)(ii) are hereinafter collectively referred to as the “Due Diligence Materials.” The date upon which the last of the Due Diligence Materials in form reasonably acceptable to Purchaser are delivered to Purchaser is referred to herein as the “Delivery Date.” Purchaser shall have until such date that is twenty (20) days after the Delivery Date (the “Due Diligence Period”) within which to object in writing to the substantive matters reflected in the Due Diligence Materials. If Purchaser shall timely provide Seller with any such objection, Seller shall within ten (10) days thereafter (i) remove or cure any such matters to which Purchaser has objected or (ii) enter into an agreement in form and substance acceptable to Purchaser to remove or cure such matters prior to Closing and proceed to Closing. If Seller shall fail to remove or cure, or agree to remove or cure, such matters to which Purchaser has objected within such ten (10)-day period or if in the judgment of Purchaser such matters cannot be cured or if any title defect appears between the expiration of the Due Diligence Period and Closing, then Purchaser may terminate this Agreement or close on both Parcels without any reduction in the Purchase Price. In the event of such termination, the ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost ▇ Money shall be returned to Purchaser and expense, the Purchaser may make copies of all such Due Diligence Materials and the Meditrust Entities neither party shall reasonably cooperate to facilitate have any requests made by the Purchaser. The Purchaser recognizes, however, that the Meditrust Entities also need access to such Due Diligence Materials in order to operate their business and to comply with their obligations hereunder. In addition to the Due Diligence Materials and without limiting the obligations of the Meditrust Entities further obligation under Sections 3.3(b), 3.3(k) and 3.3(j), the Meditrust Entities shall use reasonable efforts to provide to the Purchaser (at the Purchaser's sole cost and expense) copies of any other materials pertaining to the Assets, the Securities, the Properties, the Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably request, it being acknowledged and agreed that (1) if any of such materials are being updated or replaced by the Purchaser (such this Agreement except as title insurance examinations, surveys, etcspecifically set forth herein.), the Purchaser may request such materials from the Meditrust Entities to the extent necessary to facilitate the Purchaser's review (however, the Purchaser acknowledges that it does not intend to and it would not be reasonable to request that the Meditrust Entities produce copies of all such materials relating to the Properties),
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pulaski Financial Corp)